# Accrued

3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid

upon death of a beneficiary 3.1000-1

3.1001 Hospitalized competent veterans 3.1001-1

3.1002 Political subdivisions of United States 3.1002-1

3.1003 Returned and canceled checks 3.1003-1

3.1004--3.1006 \[Reserved\]

3.1007 Hospitalized incompetent veterans 3.1007-1

3.1008 Accrued benefits payable to foreign beneficiaries 3.1008-1

3.1009 Personal funds of patients 3.1009-1

**§3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid
upon death of a**

> beneficiary.

\(a\) *Basic entitlement.* Except as provided in §§3.1001 and 3.1008,
where death occurred on or after December 1, 1962, periodic monetary
benefits (other than insurance and servicemembers' indemnity) authorized
under laws administered by the Department of Veterans Affairs, to which
a payee was entitled at his or her death under existing ratings or
decisions or those based on evidence in the file at date of death, and
due and unpaid will, upon the death of such person, be paid as follows:
(Authority: 38 U.S.C. 5121(a))

\(1\) Upon the death of a veteran to the living person first listed as
follows:

\(i\) His or her spouse;

\(ii\) His or her children (in equal shares);

\(iii\) His or her dependent parents (in equal shares) or the surviving
parent.

\(2\) Upon the death of a surviving spouse or remarried surviving
spouse, to the veteran's children.

\(3\) Upon the death of a child, to the surviving children of the
veteran entitled to death pension, compensation, or dependency and
indemnity compensation.

\(4\) Upon the death of a child claiming benefits under chapter 18 of
this title, to the surviving parents.

\(5\) In all other cases, only so much of the accrued benefit may be
paid as may be necessary to reimburse the person who bore the expense of
last sickness or burial. (See §3.1002.)

\(b\) *Apportionments.*

\(1\) Upon the death of a person receiving an apportioned share of
benefits payable to a veteran, all or any part of such unpaid amount is
payable to the veteran or to any other dependent or dependents of the
veteran. (Authority: 38 U.S.C. 5121(a)(1))

\(2\) Where at the date of death of the veteran an apportioned share is
being paid to or has been withheld on behalf of another person, the
apportioned amount remaining unpaid for periods prior to the last day of
the month before the veteran's death is payable to the apportionee.

\(3\) Where the accrued death pension, compensation or dependency and
indemnity compensation was payable for a child as an apportioned share
of the surviving spouse's benefit, payment will be made under the
provisions of paragraph (a)(4) of this section, on the expenses of such
deceased child's last sickness or burial.

\(c\) *Claims and evidence.* Application for accrued benefits must be
filed within 1 year after the date of death. A claim for death pension,
compensation, or dependency and indemnity compensation, by an
apportionee, surviving spouse, child or parent is deemed to include
claim for any accrued benefits. (See §3.152(b)).

\(1\) If an application for accrued benefits is incomplete because the
claimant has not furnished information necessary to establish that he or
she is within the category of eligible persons under the provisions of
paragraphs (a)(1) through (a)(4) or paragraph (b) of this section and
that circumstances exist which make the claimant the specific person
entitled to payment of all or part of any benefits which may have
accrued, VA shall notify the claimant:

\(i\) Of the type of information required to complete the application;

\(ii\) That VA will take no further action on the claim unless VA
receives the required information; and

\(iii\) That if VA does not receive the required information within 1
year of the date of the original VA notification of information
required, no benefits will be awarded on the basis of that application.

\(2\) Failure to file timely claim, or a waiver of rights, by a
preferred dependent will not serve to vest title in a person in a lower
class or a claimant for reimbursement; neither will such failure or
waiver by a person or persons in a joint class serve to increase the
amount payable to another or others in the class. (Authority: 38 U.S.C.
5121(c); 5112(b))

\(d\) *Definitions.*

\(1\) *"*Spouse" means the surviving spouse of the veteran, whose
marriage meets the requirements of §3.1(j) or §3.52. Where the marriage
meets the requirements of §3.1(j) date of marriage and continuous
cohabitation are not factors.

\(2\) "Child" is as defined in §3.57 and includes an unmarried child who
became permanently incapable of selfsupport prior to attaining 18 years
of age as well as an unmarried child over the age of 18 but not over 23
years of age, who was pursuing a course of instruction within the
meaning of §3.57 at the time of the payee's death. However, upon the
death of a child in receipt of death pension, compensation, or
dependency and indemnity compensation, any accrued will be payable to
the surviving child or children of the veteran entitled to death pension
compensation. or dependency and indemnity compensation. Upon the death
of a child, another child who has elected dependents' educational
assistance under 38 U.S.C. chapter 35 may receive accrued death pension
compensation, or dependency and indemnity compensation, payable on
behalf of the deceased child for periods prior to the commencement of
benefits under that chapter.

\(3\) "Dependent parent" is as defined in §3.59: *Provided,* That the
mother or father was dependent within the meaning of §3.250 at the date
of the veteran's death.

\(4\) *Evidence in the file at date of death* means evidence in VA's
possession on or before the date of the beneficiary's death, even if
such evidence was not physically located in the VA claims folder on or
before the date of death, in support of a claim for VA benefits pending
on the date of death.

\(5\) *Claim for VA benefits pending on the date of death* means a claim
filed with VA that had not been finally adjudicated by VA on or before
the date of death. Such a claim includes a deceased beneficiary's claim
to reopen a finally disallowed claim based upon new and material
evidence or a deceased beneficiary's claim of clear and unmistakable
error in a prior rating or decision. Any new and material evidence must
have been in VA's possession on or before the date of the beneficiary's
death.

\(e\) *Subsistence allowance.* Subsistence allowance under the
provisions of 38 U.S.C. ch. 31 remaining due and unpaid at the date of
the veteran's death, is payable under the provisions of this section.

\(f\) *Dependents' educational assistance.* Educational assistance
allowance or special restorative training allowance under 38 U.S.C. ch.
35, remaining due and unpaid at the date of death of an eligible
surviving spouse or eligible child is payable to a child or children of
the veteran (see paragraphs (a)(2), (a)(3) and (d)(2) of this section),
or on the expenses of last sickness and burial (see paragraph (a)(4) of
this section.) Benefits due and unpaid at the date of death of an
eligible spouse are payable only on the expenses of last sickness and
burial (see paragraph (a)(4) of this section).

\(g\) *Veterans educational assistance.* Educational assistance
allowance under 38 U.S.C. chapters 30, 32, or 34, and 10 U.S.C. chapter
1606 remaining due and unpaid at the date of the veteran's death is
payable under the provisions of this section. (Authority: 38 U.S.C.
5121)

\(h\) *Clothing allowance.* Clothing allowance under 38 U.S.C. 1162
remaining due and unpaid at the date of the veteran's death is payable
under the provisions of this section.

\(i\) *Active service pay*. Benefits awarded under this section do not
include compensation or pension benefits for any period for which the
veteran received active service pay. (Authority: 38 U.S.C. 5304(c).)

\[26 FR 1608, Feb. 24, 1961, as amended at 27 FR 11892, Dec. 1, 1962; 30
FR 11389, Sept. 8, 1965; 31 FR 4790, Mar. 22, 1966; 34 FR 840, Jan. 18,
1969; 39 FR 15126, May 1, 1974; 56 FR 18733, Apr. 24, 1991; 61 FR 67950,
Dec. 26, 1996; 62 FR 5529, Feb. 6, 1997; 62 FR 35423, July 1, 1997; 62
FR 35970, July 3, 1997; 67 FR 65708, Oct. 28, 2002; 71 FR 78369, Dec.
29, 2006\]

**Supplement *Highlights* references**: 25(1), 27(2), 30(1), 56(1),
75(1).