Citation Nr: 1120946	
Decision Date: 05/31/11    Archive Date: 06/06/11

DOCKET NO.  09-39 172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Whether benefits in the amount of $90 monthly for the period from April 1, 2008 through August 29, 2008, remained due and unpaid to the Veteran's surviving spouse, to include whether the Appellant is an eligible survivor for purposes of receipt of such benefits, if due.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

Tresa M. Schlecht, Counsel 


INTRODUCTION

The Veteran had active service from June 1944 to October 1945 and essentially continuous active service from May 1948 to September 1961.  The Appellant is the child of the Veteran and the surviving spouse of the Veteran.  The Appellant had power of attorney and acted as fiduciary for the surviving spouse prior to the death of the surviving spouse.  The Appellant's claim is based on a claim submitted by the surviving spouse (hereinafter, the Beneficiary) prior to the Beneficiary's death. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 administrative decision of the Pension Management Center in Milwaukee, Wisconsin, which determined that there were no benefits due to the Beneficiary which had not been paid.  The Beneficiary died in August 2008, before the September 2008 administrative decision was issued.  The issue on appeal is more accurately described as stated on the title page of this decision.  The Nashville, Tennessee Regional Office (RO) has jurisdiction of the claims file.  
 
The Appellant's contention that she is an eligible survivor for purposes of 38 U.S.C.A. § 5121 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to her death, the Beneficiary filed a claim to locate electronic payments in the monthly amount of $90 that were not deposited to the Beneficiary's designated direct deposit account beginning in April 2008.

2.  That claim remained pending and unadjudicated at the death of the Beneficiary in late August 2008.  

3.  VA has no record that the Beneficiary, or a person authorized to act for the Beneficiary, authorized deposit of payments due to the Beneficiary to an account held by the nursing home at which the Beneficiary was residing.  


CONCLUSION OF LAW

Periodic payments due to the Beneficiary for the period from April 1, 2008 to August 29, 2008, remain due to the Beneficiary and unpaid to the Beneficiary to the extent of lack of actual receipt of such funds by the Beneficiary or her estate.  38 U.S.C.A. §§ 5121, 5122 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1003 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The basic facts in this case are not in dispute, and the law is dispositive.  There is no additional information or evidence that could be obtained to substantiate the claim, so VA's duties to notify and to assist are not applicable.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).  In light of the decision, which is favorable to the Appellant, no further discussion of the duties to notify or assist is required.  

The Veteran, who fought in World War II and was wounded at Iowa Jima, died in September 1965.  The Beneficiary, the surviving spouse of the Veteran, was awarded death pension benefits in 2005.  In 2008, the Beneficiary entered a nursing home.  Because she was receiving nursing home care at government expense, the monthly benefit payment to her was reduced to $90, effective in late February 2008.  

When the Beneficiary was awarded benefits in 2005, she designated a checking account to which monthly benefits were deposited, by direct deposit.  Beginning in April 2008, soon after the Beneficiary entered nursing home care, electronic payment of her $90 monthly benefit was routed to an account held by the nursing home.  VA has acknowledged that it has no record authorizing the change in the account designated for routing and receipt of the Beneficiary's direct deposit payments.

In late July 2008, the Appellant, on behalf of the Beneficiary, contacted a Member of Congress to request that the Beneficiary's $90 monthly benefit be reinstated.  The Beneficiary stated that she was no longer receiving a monthly benefit.  The Beneficiary's checking account statement reflects that no benefit payment was being received from VA.  

The Beneficiary died in late August 2008.  However, since the Beneficiary had requested Congressional assistance locating missing benefits payments prior to her death, the Board finds that the Beneficiary had submitted a claim prior to her death which remained pending and unadjudicated when she died, even though VA did not receive the claim from the Member of Congress until after the Beneficiary's death.

There is no doubt that the Beneficiary was entitled to a monthly benefit of $90.  VA records establish that the $90 monthly benefit awarded to the Beneficiary continued to be electronically deposited, but not to the account which VA's records show was designated by the Beneficiary.  

An electronic transfer of monthly benefits payments by VA for a beneficiary is the equivalent of a check, for statutory purposes.  38 U.S.C.A. § 5120.  If a particular beneficiary is entitled to receive a payment, and VA makes the check for payment out to an individual other than the beneficiary without the beneficiary's authorization, the beneficiary remains entitled to receive the benefit awarded by VA to the beneficiary.  The Board finds no legal distinction between an electronic deposit sent to an incorrect account and a check made out to an incorrect payee or sent to a wrong address. 

As noted above, VA has acknowledged that it has no record that the Beneficiary or anyone authorized to act on her behalf authorized that the Beneficiary's award be deposited to the nursing home where she was residing.  Therefore, the Board must find that benefits to which the Beneficiary was entitled remained due and unpaid.  

The governing statue differentiates between benefits awarded and unpaid and "accrued" benefits, which are benefits due but not yet awarded.  38 U.S.C.A. § 5121; see Bonny v. Principi, 16 Vet. App. 504, 507 (2002) (explaining that the comma in the middle of paragraph (a), 38 U.S.C.A. § 5121, between 'decisions'' and 'or,' and the use of the conjunction 'or' after the comma, indicate that the separated phrases state substantive alternatives, so that the statute provides for payment of (1) periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions, which the Court called '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 the Court called 'accrued benefits' for purposes of sections 5121 and 5122.  Benefits which are awarded, but unpaid, may be paid to "an eligible survivor."

The RO characterized the appeal at issue as a claim for "accrued benefits," but, as a legal matter, the benefits at issue in this case are actually benefits which were awarded to the Beneficiary but unpaid to the Beneficiary.  This distinction, while quite technical, governs the outcome of the claim.  

Because there are benefits which were owed to the Beneficiary, and VA has no record which establishes that the Beneficiary agreed to payment through the account to which VA sent the money, an eligible survivor of the Beneficiary is entitled to payment of the benefits which were due to the Beneficiary but have been paid to someone other than the Beneficiary.  The administrative decision below did not address whether the Appellant is an eligible survivor.  That determination must be made before unpaid benefits may be distributed to an eligible survivor.  That issue is addressed in the Remand below.  

The Board notes that the Beneficiary may, in fact, have been allowed by the nursing home to use the funds deposited by VA to the nursing home's account, or, in fact, the nursing home may have refunded the money at issue to the Beneficiary's estate.  If so, then the Beneficiary's eligible survivor is not entitled to keep any amount in excess of the unpaid benefit.  

However, the agency of original jurisdiction (AOJ) did not develop evidence as to whether there were eligible survivors, as defined by statue, for the purposes of receipt of such benefits, since the AOJ found that the benefits due to the Beneficiary had been paid.  To the extent that the Beneficiary or her estate used or received the benefit amount to which the Beneficiary was entitled, the amount owed by VA to an eligible survivor is reduced.  The possibility that the nursing home may have provided the funds to the Beneficiary that VA paid to the nursing home does not terminate the right of an eligible survivor to payment of any amount still unpaid.  The board notes that the AOJ did not develop evidence as to the extent of lack of actual receipt of the funds by the Beneficiary or her estate, as the AOJ advised the Appellant to seek that information without assistance from VA.  

In this case, periodic payment to the Beneficiary were due from April 1, 2008 to August 29, 2008, and no payment of those benefits was made by VA to the Beneficiary, according to the records VA is able to locate.  The Beneficiary, through her eligible survivors, is entitled to payment of periodic benefits due to the Beneficiary but not paid to the Beneficiary prior to her death.  


ORDER

Periodic benefits to which the Beneficiary was entitled from April 1, 2008 through August 29, 2008, were not paid to the Beneficiary, and remain due and owing, to the extent that there was no actual receipt of such funds by the Beneficiary or her estate, and the appeal is granted, to the extent of lack of actual receipt only.  



REMAND

The Appellant must be afforded an opportunity to establish that she is an "eligible survivor" of the beneficiary for purposes of receiving any benefits due to the Beneficiary but remaining unpaid.  Eligible survivors eligible for such payments (which are paid upon the death of the Veteran to the first living person listed) are: (i) the spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. § 3.1000(a).  Benefits due but unpaid may also be paid as may be deemed necessary to reimburse the person who bore the expenses of the last sickness and burial.  38 U.S.C.A. § 5121(a)(5); 38 C.F.R. § 3.1000(a)(5).  Payments to persons who bore the expense of last sickness or burial shall be limited to the amount necessary to reimburse such persons for the expenses of last sickness and/or burial.  38 C.F.R. § 3.1003(a).

The Board notes that, for purposes of 38 U.S.C.A. § 5121, the term "child," as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the Veteran's death; or an illegitimate child.  In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution.  38 U.S.C.A. § 101(4); 38 C.F.R. §§ 3.57(a), 3.1000(d)(2).  The Appellant has not established that she is a "child" of the Veteran as defined for purposes of receipt of benefits under 38 U.S.C.A. § 5121.  She should be afforded the opportunity to establish entitlement to receipt of payments to which the Beneficiary was entitled at the time of her death which were not paid to the Beneficiary, to the extent that such payments were not actually received.

1.  The Appellant should be advised of the criteria for recognition as an eligible survivor of the Beneficiary or the Veteran.  The Appellant should be afforded an opportunity to submit any relevant evidence, including evidence as to payment of expenses of the Beneficiary's last illness or burial.

2.  Thereafter, readjudicate any issue remaining on appeal.  If the decisions remain in any way adverse to the Appellant, she and her representative should be provided with a supplemental statement of the case.

The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs