**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 00-39

[Matilda Bonny, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Argued September 25, 2002 Decided December 10, 2002 )

*Douglas J. Rosinski*, of Washington, D.C., for the appellant.

*Patricia Trujillo*, with whom *Tim S. McClain*, General Counsel; *R.
Randall Campbell*, Acting Assistant General Counsel; and *Joan E.
Moriarity*, Deputy Assistant General Counsel, were on the brief, all of
Washington, D.C., for the appellee.

Before KRAMER, *Chief Judge*, and FARLEY and IVERS, *Judges*.

IVERS, *Judge*: The appellant, Matilda Bonny, is the widow of veteran
William H. Bonny, who died on August 15, 1995. She seeks reversal of a
September 27, 1999, decision by the Board of Veterans\' Appeals (BVA or
Board), which granted accrued benefits to her for the period not to
exceed two years prior to the date of her husband\'s death. The
appellant\'s entitlement to accrued benefits was based on a finding that
disability compensation had been due and owing to the veteran upon his
death. The appellant asserts that she is entitled to payment of the full
amount of benefits due and unpaid to the veteran at the time of his
death. The Court\'s jurisdiction to review this matter is established by
38 U.S.C. § 7252. For the reasons contained herein, the Court will
reverse the Board\'s September 1999 decision and remand this matter to
the Board for appropriate action.

**I. FACTS**

The appellant\'s deceased husband served in the U.S. Army from January
1941 to September 1945. Record (R.) at 10. He sustained
service-connected gunshot wounds that were evaluated as 30% disabling,
combined. R. at 14. An August 10, 1995 administrative review of the
veteran\'s claims file resulted in a determination that a February 26,
1948, regional office (RO) decision contained clear and unmistakable
error (CUE) and that the veteran\'s combined disability evaluation
should have been 50%, effective January 28, 1948. R. at 14-16; *see* R.
at 21. The August 10, 1995, administrative decision instructed that
retroactive benefits should be granted accordingly. *Id*. Five days
after the administrative decision, on August 15, 1995, the veteran died.
R. at 18.

In September 1995, the appellant submitted an application for VA
surviving spouse benefits. R. at 23-26. An RO decision dated that same
month granted accrued benefits to the appellant, pursuant to 38 U.S.C. §
5121, \"payable for one year prior to the veteran\'s death.\" R. at 35.
The appellant disagreed with the one-year limit, pointing out that the
veteran had received an award of benefits retroactive to January 28,
1948, and that, therefore, the full amount of that award should be paid
to her. R. at 38-39, 51.

In the BVA decision that is the subject of this appeal, the Board noted
a change in the law that enlarged the time limit for awards of accrued
benefits from one year to two years. R. at 4. The Board extended the
award of accrued benefits to the appellant to the amount equal to what
would have been due to the veteran for the two years prior to his death,
but denied the appellant\'s \"claim for payment of disability
compensation due and owing to the veteran from January 28, 1948.\" R. at
6.

**II. ANALYSIS**

Although she received an award of \"accrued benefits\" under 38 U.S.C.
§ 5121, the appellant has asserted that she should be paid the full
amount of the past-due benefits awarded to her husband shortly before
his death. She argues that the plain meaning of the statutory clause
\"due and unpaid for a period not to exceed two years,\" as it appears
in 38 U.S.C. § 5121(a), is not as the Board construed and applied it.
Appellant\'s Brief (Br.) at 15-23. She contends that the two-year
limitation does not apply to the amount to be paid, but rather sets a
time limit for which payment of an award of benefits can be pending in
order for the award to be paid as accrued benefits upon the death of a
veteran. *Id*. at 16. She contends that, because her deceased husband\'s
award was pending payment for only five days prior to his death, the
full amount should be paid to her as accrued benefits. *Id*. at 16-17.
The Court rejects this argument.

This Court and the United States Court of Appeals for the Federal
Circuit (Federal Circuit) have clearly defined the meaning of the
two-year limitation concerning accrued benefits available under 38
U.S.C. § 5121. The principal decisions from the Federal Circuit,
*Richard v. West*, 161 F.3d 719 (Fed. Cir. 1998), and *Haines v. West*,
154 F.3d 1298 (Fed. Cir. 1998), *cert. denied*, 526 U.S. 1016 (1999),
each reinforced the rule that a claim for VA disability benefits does
not survive the death of a veteran, but that certain survivors of a
veteran can claim accrued benefits under 38 U.S.C. § 5121. Regarding the
two-year limit for accrued benefits, the Federal Circuit stated:

> \[The\] accrued benefits provision \[of 38 U.S.C. § 5121\] is limited.
> A survivor may only seek payment of those benefits which were \"due
> and unpaid\" at the time of the veteran\'s death. The statute also
> limits payment to those benefits that were due and unpaid \"for a
> period not to exceed two years\" prior to the veteran\'s death.

*Haines*, 154 F.3d at 1300 (citations omitted).

Likewise, in *Marlow v. West*, 12 Vet.App. 548 (1999), this Court
reiterated the meaning of the two-year limit, noting that it was
indisputable that the veteran in that case had been \"fully compensated
during the two years prior to his death\" and that, therefore, there
were no accrued benefits to claim. *Id*. at 551. The appellant\'s
suggestion that the two-year time limit means a two-year period after
the death of a veteran in which payment of accrued benefits can be made
is not persuasive in light of the meaning of the time-limit clause that
has been repeatedly stated in case law.

As an alternate argument for this appeal, the appellant has asserted
that \"accrued benefits,\" as referenced in section 5121, are a
statutorily defined subset of \"periodic monetary benefits.\"
Appellant\'s Supplemental (Suppl.) Br. at 10; *see* 38 U.S.C. § 5121(a).
She claims entitlement to periodic monetary benefits to which her
husband was entitled at death, not to accrued benefits arising after his
death. Appellant\'s Suppl. Br. at 10. Under the circumstances of this
case, the Court accepts the essence of this latter argument as valid.

The text of part (a) of section 5121 reads, in relevant part, as
follows:

Except as provided in sections 3329 and 3330 of title 31, periodic
monetary benefits (other than insurance and servicemen\'s indemnity)
under laws administered by the Secretary 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 (hereinafter in this section and
section 5122 of this title referred to as \"accrued benefits\") and due
and unpaid for a period not to exceed two years, shall, upon the death
of such individual be paid as follows:

. . . .

(2) Upon the death of a veteran, to the living person first

listed below:

\(A\) The veteran\'s spouse.

38 U.S.C. § 5121(a). The punctuation and wording of this paragraph
convey its plain meaning. *See* *Gardner v. Brown*, 5 F.3d 1456, 1458-59
(Fed. Cir. 1993), *aff\'d*, 513 U.S. 115 (1994) (holding that if
language of statute is clear, no further inquiry into intent of Congress
is required).

The comma in the middle of paragraph (a), between \"decisions\" and
\"or,\" and the use of the conjunction \"or\" after the comma, indicate
that the separated phrases state substantive alternatives. 38 U.S.C. §
5121(a). The paragraph provides for payment of (1) periodic monetary
benefits to which an individual was entitled at death under existing
ratings or decisions, which the Court will call \"benefits awarded but
unpaid\", or (2) periodic monetary benefits based on evidence in the
file at the date of an entitled individual\'s death and due and unpaid
for a period not to exceed two years, which are called \"accrued
benefits\" for purposes of sections 5121 and 5122. *Id*.

The Court notes that the regulation promulgated by the Secretary for
implementation of 38 U.S.C. § 5121(a), 38 C.F.R. § 3.1000, potentially
changes the effect of the punctuation in the statute. The regulation
reads, in pertinent part:

\[P\]eriodic monetary benefits . . . authorized under laws administered
by \[VA\], to which a payee was entitled at his death under existing
ratings or decisions, or those based on evidence in the file at date of
death, and due and unpaid for a period not to exceed 2 years prior to
the last date of entitlement as provided in § 3.500(g) will, upon the
death of such person, be paid \[to certain listed individuals\].

38 C.F.R. § 3.1000(a). In the regulation, the Secrectary added a comma
that could have the effect of imposing the two-year limitation on
benefits awarded but unpaid as well as on accrued benefits. Any such
interpretation of the regulation would conflict with the intent
expressed in 38 U.S.C. § 5121(a), as explained above, and would be
beyond the Secretary\'s authority. *See Gardner*, 5 F.3d at 1464
(holding that the Secretary\'s statutory authority to make regulations
may only carry out the purposes of an act of Congress, and may not amend
the act).

The important distinction between the two types of periodic monetary
benefits is that one type of benefits is due to be paid to the veteran
at his death and one type is not. As to the former, when the benefits
have been awarded but not paid pre-death, an eligible survivor is to
receive the entire amount of the award. The right to receive the entire
amount of periodic monetary benefits that was awarded to the eligible
individual shifts to the eligible survivor when payment of the award was
not made before the eligible individual died. This interpretation of 38
U.S.C. § 5121(a) is completely consistent with the plain language of the
statute, as previously quoted and interpreted herein.

As to the latter type of periodic monetary benefits, what is
determinative regarding accrued benefits is that evidence in the
individual\'s file at the date of death supports a decision in favor of
awarding benefits. Because the benefits cannot be awarded to the
deceased individual, an eligible survivor can claim a portion of those
accrued benefits. *See* *Richard*, *Haines*, and *Marlow*, all *supra*.

The Secretary has argued that the termination-of-right provision of 38
U.S.C. § 5112(b) applies in this case to preclude the appellant from any
award other than the accrued benefits award that she has received.
Secretary\'s Suppl. Br. at 15-16. The Secretary cites *Seymour v.
Principi*, 245 F.3d 1377 (Fed. Cir. 2001), in support of this argument,
for the same rule as that found in *Richard* and *Haines*, that is, the
rule that a survivor of a veteran may pursue a claim for accrued
benefits. Secretary\'s Suppl. Br. at 15-16. We reject the Secretary\'s
argument because, in *Seymour* as in *Richard* and *Haines*, the appeal
involved accrued benefits, not benefits awarded but unpaid. The Court
has explained herein the distinction between these two types of benefits
available to survivors of veterans under 38 U.S.C. § 5121. Moreover, the
Secretary acknowledged at oral argument that, when a veteran is the
recipient of periodic monetary benefits under 38 U.S.C. § 5121(a) by
virtue of the death of an apportionee of that veteran, pursuant to
regulation, that veteran is not limited to receiving two years of
benefits but rather would be entitled, if applicable, to receive the
full amount of benefits involved. *See* 38 U.S.C. § 5121(a)(1);
38 C.F.R. § 3.1000(b)(1).

The parties to this appeal do not dispute the Board\'s conclusion that
the appellant, as the spouse of the deceased veteran, was eligible to
receive benefits under 38 U.S.C. § 5121. *Cf. Wilkes v. Principi*,
16 Vet.App. 237, 242 (2002) (finding that the appellant was not person
eligible to receive benefits under 38 U.S.C. § 5121where benefits had
been awarded to veteran but were unpaid upon his death). The Court holds
that the appellant was entitled to receive section 5121 benefits awarded
but unpaid, that is, the full amount of periodic monetary benefits to
which her deceased husband, the veteran, was entitled at death under an
existing decision, the 1995 VA administrative decision.

**The Board determined that all periodic monetary benefits referred to
in** 38 U.S.C. § 5121 **are accrued benefits, regardless of their
adjudicative status. R. at 5. The Board found no apparent statutory
basis for disbursing to the appellant the entire amount of money that
had been awarded to her deceased husband before his death. *Id*. By
distinguishing two types of benefits provided under** 38 U.S.C. §
5121**, the Court has negated the Board\'s more limiting interpretation
of the statute. Because the Board\'s erroneous interpretation of** 38
U.S.C. § 5121 **resulted in an award to the appellant of accrued
benefits, and the Court has determined that she was entitled by law,**
under 38 U.S.C. § 5121, **to benefits awarded but unpaid, the Board\'s
decision will be reversed. *See* *Otero-Castro v. Principi*, 16 Vet.App.
375, 380-82 (2002) (discussing reversal with regard to statutory and
regulatory interpretation).**

**III. CONCLUSION**

Accordingly, the September 27, 1999, BVA decision is REVERSED and this
matter is REMANDED to the Board for an award to the appellant of the
full amount of periodic monetary benefits due and owing her deceased
husband, the veteran, as determined by the August 10, 1995, VA
administrative decision.