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5.2. Accrued Benefits
Accrued benefits are "periodic monetary benefits ... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death ... and due and unpaid." 38 U.S.C. § 5121(a); see also 38 C.F.R. § 3.1000. Eligibility for accrued benefits depends upon whether the veteran had a claim pending at the time of his or her death or was otherwise entitled to benefits. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998); see also Zevalkink v. Brown, 102 F.3d 1236, 1241 (Fed. Cir. 1996) ("[A]n accrued benefits claim is derivative of the veteran's claim for service connection, i.e., the claimant's entitlement is based on the veteran's entitlement."). In determining entitlement to accrued benefits, VA must look at the "evidence that was either physically or constructively in the veteran's file at the time of his death." Ralston v. West, 13 Vet. App. 108, 113 (1999); see 38 U.S.C. § 5121(a); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993) (in some cases, documents may be constructively in record and must be considered for purposes of accrued benefits).
A veteran's surviving spouse, children, and dependent parents may be entitled to accrued benefits which are "periodic monetary benefits ... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death." 38 U.S.C. § 5121(a). A claim for accrued benefits "must be filed within one year after the date of [the] veteran's death." 38 U.S.C. § 5121(c). Also, a claim for accrued benefits derives from the deceased veteran's claim for benefits, and a surviving spouse, child, or dependent parent may not reopen or reargue a claim because "without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application." Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998) (citing Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996)).
Any claim for accrued benefits is contingent upon "the veteran having a claim pending at time of death." Jones, 136 F.3d at 1300. A "survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of [clear and unmistakable error]" because 38 U.S.C. section 5109A, the statute pertaining to such requests for revision, does not "provide[ ] for another person, even a survivor, to seek correction of a decision on a veteran's claim." Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).
VA regulations explicitly define the phrase "[c]laim for VA benefits pending on the date of death" to include any request for revision of a prior decision on the basis of clear and unmistakable error that was pending at the time of the veteran's death. 38 C.F.R. § 3. 1000(d)(5); see Mallette v. Peake, 337 F. App'x 871, 872 (Fed. Cir. 2008) (per curiam order) (stating that the question of whether a veteran had a claim pending at the time of death is a factual determination); see also 38 U.S.C. § 7261(a)(4) (providing that the Court reviews the Board's findings of fact pursuant to the "clearly erroneous" standard).
Section 5121(a)(2) provides that upon the death of a veteran, payment should be made to the living person first listed: the "veteran's spouse," "the veteran's children," or "the veteran's dependent parents." 38 U.S.C. § 5121(a)(2). In order to be eligible for accrued benefits, therefore, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. See Burris v. Principi, 15 Vet. App. 348, 35253 (2001) (concluding that 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C. § 101(4)(A), which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18); Marlow v. West, 12 Vet. App. 548, 551 (1999) (noting that section 5121(a) "limits qualifying survivors to the deceased veteran's spouse, child ... or dependent parents"). Subsection (a)(5) provides: "In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial." 38 U.S.C. § 5121(a)(5). A surviving spouse's estate is not in the class of "persons" designated in 38 U.S.C. § 5121(a)(3) as eligible to receive accrued benefits. See Wilkes v. Principi, 16 Vet. App. 237 (2002) (holding that the nephew of the veteran who was co-executor of the veteran's estate was not eligible to receive accrued benefits).