BVA9508285 DOCKET NO. 93-12 033 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than December 1, 1989, for payment of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran served on active duty from October 1942 to October 1945 and from October 1947 to November 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal of a July 1992 decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied an effective date earlier than December 1, 1989, for payment of accrued benefits due and payable at the time of the veteran's death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she should receive money that would have been payable to the veteran had he not died before the issuance of the check. It is asserted that the VA was in error in not issuing the check earlier in that all of the information regarding the veteran's waiver of military retirement benefits was available and that the appellant should not be penalized for a VA error. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not presented a claim for an earlier effective date for an award of accrued benefits upon which relief may be granted. FINDINGS OF FACT 1. The veteran died on December [redacted] 1990. 2. At the time of his death, periodic monthly compensation benefits from a claim adjudicated prior to his death had not been paid. 3. The appellant has been paid periodic monthly compensation benefits that were due the veteran from December 1, 1989, to November 1, 1990, but had not been paid at the time of his death. 4. Additional periodic monthly compensation benefits based on the period from April 1, 1989, through November 30, 1989, and due but unpaid at the time of the veteran's death, have not been paid. CONCLUSION OF LAW The appellant has not submitted a claim upon which relief may be granted. 38 U.S.C.A. §§ 5107, 5121 (West 1991); 38 C.F.R. § 3.1000 (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background In a July 1990 rating decision, the RO increased the combined evaluation of the veteran's service connected disabilities from 70 percent to 100 percent and granted special monthly compensation on account of being in need of regular aid and attendance. The effective date of the increase and the award of special monthly compensation was March 8, 1989. The veteran was notified of the increase, and of the fact that part of the money would be withheld pending verification of gross military retirement pay, later that month. (Concurrent receipt of both military retirement pay and VA compensation is prohibited. See 38 U.S.C.A. § 5305; 38 C.F.R. § 3.750.) Information regarding the waiver of military retirement pay was received by VA in August 1990. A check was issued to the veteran in August 1990, representing the difference in compensation due him from April 1, 1989, to August 30, 1989, and that actually paid during the same period. The veteran died on December [redacted] 1990. Later that month, the appellant filed a claim for service connection for the cause of the veteran's death, including accrued benefits. Service connection for the cause of the veteran's death was granted by rating action in January 1991. In March 1991, the appellant requested that an audit of the veteran's account be undertaken to ascertain whether he had received the proper retroactive benefit award. In January 1992 the appellant was issued a check representing the difference between the veteran's benefits that were due from December 1, 1989, through November 30, 1990, and those that were paid during the same period. Both VA and the appellant agree that the correct monthly benefit from December 1, 1989 through November 1, 1990 was $2,069, and that has been paid. Cf. attachment to appellant's statement of February 13, 1992 and VA's "Check Verification" of January 1991. In July 1992, the appellant was notified that although the veteran's award was incorrect, any money that was due between April 1, 1989 and December 1, 1989 could not be paid to the appellant as these constituted accrued benefits which can only be paid for the year prior to the veteran's death. II. Analysis The question to be answered concerning this case is whether or not the appellant has presented a legal claim for a VA benefit. Sabonis v. Brown, 6 Vet.App. 426 (1994). If she has not done so, her appeal must be denied. As explained below, the Board finds that she has not submitted such a claim. Upon the death of a veteran, periodic monetary benefits to which he was entitled under existing ratings or decisions (hereafter referred to as "accrued benefits") and due and unpaid for a period not to exceed 1 year prior to death, may be paid to his spouse. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. It is unfortunate that the veteran did not receive in August 1990 the amount of retroactive benefit to which he was entitled. However, these were periodic monetary benefits and as such are payable to the appellant only for the year immediately preceding the veteran's death. It is not argued that the benefits from December 1, 1989 to November 30, 1990 have not been paid. There has been no assertion of another legal basis upon which the sums can be paid and this Board is, by law, bound to the strict one year provision. The veteran died in December 1990. Accrued benefits may be paid only from December 1989. ORDER Entitlement to an effective date prior to December 1, 1989, for accrued benefits, is denied. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.