Citation Nr: 1301303 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-10 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether accrued benefits in excess of $9977.00 are due to the estate of the surviving spouse. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran retired from the military in January 1973 following 20 years of active service. He died in March 1985. The Veteran's surviving spouse died in December 2005. The appellant is the nephew of the Veteran's widow. He is seeking additional accrued benefits to cover her last sickness and burial expenses. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appeal was certified to the Board by the RO in Atlanta, Georgia. In January 2012, a hearing was held before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A transcript of that hearing is associated with the claims file. The Virtual VA eFolder has been reviewed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In December 2004, the Veteran's surviving spouse filed an informal claim for death pension with aid and attendance. An April 2005 rating decision indicates that entitlement to aid and attendance allowance was established effective from December 27, 2004; however, a May 2005 letter indicates that additional information was needed before the decision could be issued. A July 2005 letter subsequently stated that her claim was denied because she did not send evidence showing that a previous marriage was terminated. The requested information was subsequently submitted. In December 2005, the surviving spouse's representative submitted a statement indicating that she died in December 2005, but that her claim for death pension with aid and attendance had not been completed. In February 2006, the appellant submitted a VA Form 21-601, Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary. He reported that the payment of nursing home and burial expenses was in excess of $27,000.00. In September 2006, the RO notified the appellant that VA would pay $9,977.00 as the amount due and unpaid at the time of the surviving spouse's death. The appellant disagreed with the payment amount and subsequently perfected this appeal. Upon the death of a payee of VA benefits, periodic monetary benefits to which he or she was entitled to, on the basis of evidence in the file at the date of death (accrued benefits) may be paid to certain parties. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2012). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c). Persons 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)(1). They are also payable upon the death of a surviving spouse or remarried surviving spouse, to the Veteran's children. 38 C.F.R. § 3.1000(a)(2). The appellant is not a child of the Veteran. Notwithstanding, accrued benefits 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)(6); 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. § 3.1000(a). The amount payable shall not include any payment for the month in which the payee died. 38 C.F.R. § 3.1003(a); see also 38 C.F.R. § 3.500(g). At the travel board hearing, the appellant testified that they spent about $26,000.00 on assisted living and burial expenses and that he did not know if the amount paid by VA was right. The appellant stated that it would be helpful if VA made the rate tables available. He also indicated that he did not want any more than was owed, but stated that he did not understand how VA came up with the amount that was due at the time of the surviving spouse's death. The appellant's testimony appears to essentially request an accounting. That is, he wants to know how VA determined the amount owed was only $9977.00, when the expenses paid were far greater. As death pension with aid and attendance was granted effective from December 27, 2004, and the surviving spouse died in December 2005, it appears that benefits were owed for the period from January 1, 2005, through November 30, 2005. On review, however, it is unclear how VA determined the monthly entitlement was $907.00. The Board observes that the Maximum Annual Pension Rate (MAPR) for survivor's pension with aid and attendance without dependents effective December 1, 2004, was $10,893.00 (which appears to result in a monthly payment of $907.75). Thus, there appears to be a slight discrepancy. Under these circumstances, the Board finds that a remand is needed to obtain a paid and due statement. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must complete an accounting showing how accrued benefits in the amount of $9977.00 were calculated. This information should be provided to the appellant, and at a minimum, must show the amount due on a monthly basis for the period in question, to include consideration of applicable rate tables, unreimbursed medical expenses, etc. 2. Upon completion of the above requested development and any additional development deemed appropriate, the RO should readjudicate the claim of entitlement to accrued benefits in excess of $9977.00. If the benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2011). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).