Citation Nr: 1209749 Decision Date: 03/15/12 Archive Date: 03/28/12 DOCKET NO. 10-13 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to special monthly pension based on the need for aid and attendance, for purposes of receiving accrued benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from January 1942 to January 1946. The Veteran died in April 1968. The appellant is the adult daughter of the Veteran and the deceased beneficiary, the Veteran's surviving spouse, who died in August 2008. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2011, the appellant testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. FINDINGS OF FACT 1. In a December 2007 rating decision, the deceased beneficiary was granted entitlement to special monthly pension based on the need for aid and attendance, effective from November 9, 2007; however, implementation of the decision was deferred pending a determination of the deceased beneficiary's competency to handle her funds. 2. In an April 2008 rating decision, the deceased beneficiary was found incompetent to handle disbursement of funds and was assigned an earlier effective date for the grant of special monthly pension based on the need for aid and attendance, effective October 25, 2007. 3. In August 2008, the appellant's request for appointment as the deceased beneficiary's VA payee was received; however, the beneficiary passed away earlier that month prior to implementing payment of special monthly pension benefits. 4. The appellant filed a claim for entitlement to accrued benefits in October 2008 and she is the adult daughter of the Veteran and the deceased beneficiary. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are not met. 38 U.S.C.A. §§ 101, 5121 (West 2002 & Supp. 2011); 38 C.F.R. § 3.1000 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). As the resolution of the appellant's appeal for entitlement to accrued benefits is dependent on the interpretation of the law and regulations pertaining to claims for VA benefits, no further development under the VCAA or previously existing law is warranted. Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 2-04; 69 Fed. Reg. 25180 (2004). Even so, the Board notes that the appellant was notified by the RO of evidence needed in order for VA to pay accrued benefits in correspondence dated in October 2008. Laws and Regulations Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid will, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2011); 38 C.F.R. § 3.1000 (2011). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Under 38 U.S.C.A. § 5121, 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 the date of death (hereinafter referred to as "accrued benefits") and due and unpaid, shall, on the death of such individual be paid as follows: (1) Upon the death of a person receiving an apportioned share of benefits payable to a veteran, all or any part of such benefits to the veteran or to any other dependent or dependents of the veteran, as may be determined by the Secretary; (2) Upon the death of a veteran, to the living person first listed below: (A) The veteran's spouse; (B) The veteran's children (in equal shares); (C) The veteran's dependent parents (in equal shares); (3) Upon the death of a surviving spouse (widow) or remarried surviving spouse, to the children of the deceased veteran; (4) Upon the death of a child, to the surviving children of the veteran who are entitled to death compensation, dependency and indemnity compensation, or death pension; (5) Upon the death of a child claiming benefits under Chapter 18, to the surviving parents; and (6) 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.A. § 5121(a); 38 C.F.R. § 3.1000(a). A claimant qualifies as a "child" if he or she is born of the veteran. 38 U.S.C.A. § 101(4)(A) (West 2002 & Supp. 2011). Nevertheless, he or she must also be unmarried, and (i) under the age of 18; or (ii) who, before attaining the age of 18 became permanently incapable of self-support; or (iii) who, after attaining the age of 18 and until completion of education or training (but not after attaining the age of 23), is pursuing a course of instruction at an approved education institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.356, 3.1000(d)(2) (2011). Factual Background Historically, the Veteran died in April 1968. In a November 2007 VA Form 21-534 (Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child), the Veteran's surviving spouse filed a claim for entitlement to pension benefits. In a December 2007 rating decision, the deceased beneficiary was granted entitlement to special monthly pension based on the need for aid and attendance, effective from November 9, 2007. However, a finding of incompetency was proposed. Thus, implementation of the decision was deferred pending a determination of the deceased beneficiary's competency to handle her funds. The deceased beneficiary was informed that a fiduciary might be appointed to help her manage her VA benefits. In January 2008, the deceased beneficiary submitted her agreement with the RO's proposal, instructing it to take immediate action to rate her incompetent and start the process of appointing someone to be the payee of her benefits. At that time, appellant submitted documentation showing that she had been appointed as the deceased beneficiary's power of attorney as of September 2007. In an April 2008 rating decision, the deceased beneficiary was found incompetent to handle disbursement of funds, effective April 11, 2008. She was also assigned an earlier effective date for the grant of special monthly pension based on the need for aid and attendance, effective October 25, 2007. A VA Form 21-592 (Request for Appointment of Fiduciary, Custodian, or Guardian) dated on August 29, 2008, was associated with the file, listing the appellant as seeking appointment as the deceased beneficiary's VA payee or fiduciary. The RO sent a letter notifying the surviving spouse of the April 2008 rating decision on September 2, 2008. It informed her that her benefits would be withheld until a fiduciary was appointed to help her manage her VA benefits. The appellant, identified as the adult daughter of the Veteran and the deceased beneficiary, filed a claim for entitlement to accrued benefits in October 2008. At that time, the RO received multiple documents from the appellant. Most importantly, she submitted a copy of the beneficiary's death certificate. It listed the date of her death as August [redacted], 2008. She also attached a copy of a probate court document appointing her as the fiduciary with power to fully administer the decedent's estate. The appellant (as well as two additional children of the deceased beneficiary) also submitted a VA Form 21-601 (Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary). In November 2008, the appellant submitted copies of utility bills and real estate taxes paid by her on behalf of the deceased beneficiary. In a December 2008 determination, the RO denied the appellant's claim for accrued benefits, noting that expenses submitted were not for the beneficiary's last illness and/or burial. In written statements of record as well as during her July 2011 hearing, the appellant contended that her mother's estate was entitled to the benefits that had been awarded (but never paid) effective from October 25, 2007, until the beneficiary's death on August [redacted], 2008. She asserted that if the RO had timely processed the April 2008 rating decision, a fiduciary would have been duly appointed and monthly benefits would have been paid without issue. It was highlighted that notice of the April 2008 decision was not sent to the beneficiary until September 2008 (a month after her death) and that documents clearly showing the appellant's appointment as the beneficiary's power of attorney had previously been associated with the record in January 2008. The appellant further indicated that she had been in contact with a man from VA in September 2008, who wanted to set up an appointment with both her and the beneficiary. However, at that time, she verbally informed him of the beneficiary's death and requested that accrued benefits be forwarded to her as the executrix of the beneficiary's estate. Analysis Based on the foregoing, the appellant does not fit into any of the categories listed under 38 U.S.C.A. § 5121(a)(2) through (5), or equivalently under 38 C.F.R. § 3.1000(a)(1) through (4). The evidence of record shows that while the appellant is the adult daughter of the Veteran and his spouse (the decease beneficiary), she is not a "child" as defined in 38 C.F.R. § 3.1000(d)(2) and 38 C.F.R. § 3.57. Thus, the evidence of record shows that the appellant is not an eligible payee under 38 U.S.C.A. § 5121(a) and 38 C.F.R. § 3.1000(a), as she is not the Veteran's spouse, "child" (as defined by regulation), or dependent parent. Under 38 U.S.C.A. § 5121(a), the only category under which the appellant may fall is that of 38 U.S.C.A. § 5121(a)(6), or equivalently 38 C.F.R. § 3.1000(a)(5); that is, "all other cases". Under that provision, the operative rule is that only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of the last sickness and burial. 38 U.S.C.A. § 5121 (a)(6); 38 C.F.R. § 3.1000(a)(5). The Board finds that under the law governing reimbursement to the appellant from accrued amounts due a deceased beneficiary, the appellant is not entitled to payment, as there is no evidence that the appellant herself bore any expenses of the beneficiary's last sickness or burial. The appellant has specifically indicated that the beneficiary's medical and burial expenses were prepaid. All other utility bill and tax receipts and bank statements submitted by the appellant showed that claimed expenses were not for the beneficiary's last sickness or burial and are not expenses to be considered. The Board acknowledges the somewhat delayed time period it took the RO to resolve the issues of the beneficiary's competency to handle the disbursement of funds and, subsequently, appointment of a fiduciary for the receipt of benefits. The Board also recognizes the appellant's considerable sacrifices in time and money as a result of her mother's illness and resolution of her estate. Unfortunately, the beneficiary passed away before a site visit could be arranged and determination of a proper fiduciary was made by VA. While a power of attorney document was associated with the record prior to the beneficiary's death, the documents required to properly appoint a fiduciary for receipt of VA benefits were not received or associated with the record until after the death of the beneficiary. The law is dispositive of the issue on appeal, and the appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the undisputed facts of this case, the appellant is not entitled to accrued benefits. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Although the Board is sympathetic toward the appellant, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2022); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). ORDER Entitlement to special monthly pension based on the need for aid and attendance, for purposes of receiving accrued benefits, is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs