Citation Nr: 1324407	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  08-11 788	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to accrued benefits.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The Veteran served on active duty from November 1941 to February 1954.  He died in February 2007.  The appellant in this case is the Veteran's daughter.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2007 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

A hearing at the RO was held in March 2013 before the undersigned Veterans Law Judge.  In May 2003, a copy of the transcript of the hearing was provided to the appellant at her request.  A copy of the transcript has also been associated with the record on appeal.  


FINDINGS OF FACT

1.  In a November 2006 rating decision, the RO awarded the Veteran nonservice-connected pension benefits with an aid and attendance allowance, effective October 17, 2006.  He died in February 2007, before any funds were released in connection with his award.

2.  In March 2007, the appellant submitted claim for accrued benefits.  

3.  The evidence reflects that the appellant is the Veteran's daughter and was born in 1949; she does not allege, and there is nothing in the record to suggest, that she became permanently incapable of self-support prior to age 18.

4.  Although the appellant served as the Veteran's caretaker during his last sickness, she did not bear the expenses of his burial nor has she submitted evidence showing that she bore allowable medical expenses in connection with the Veteran's last sickness.  


CONCLUSION OF LAW

The criteria for entitlement to accrued benefits, including reimbursement of expenses of the Veteran's last sickness or burial, have not been met.  38 U.S.C.A. § 5121(a)(6) (West 2002); 38 C.F.R. § 3.1000(a)(5) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Background

On October 17, 2006, VA received the Veteran's application for nonservice-connected pension benefits.  Medical evidence submitted in support of the application indicated that in July 2006, the Veteran's physician had recommended Hospice for terminal care of the Veteran's progressive metastatic carcinoma of the stomach, as well as his advanced dementia, congestive heart failure, and chronic obstructive pulmonary disease.  In an attached statement, the appellant indicated the Veteran was on home hospice where she cared for him full-time.  

In a November 2006 rating decision, the RO granted nonservice-connected pension with an additional allowance based on the need for aid and attendance, effective October 17, 2006.  The RO also proposed a finding of incompetency in light of the Veteran's diagnosis of advanced dementia.  

In a December 2006 letter, the RO notified the Veteran of the proposed finding of incompetency.  In accordance with established due process protocols, the Veteran was offered the opportunity to submit evidence, information, or a statement and request a hearing within 60 days regarding the proposed incompetency finding.  

In a January 2007 letter, the RO notified the Veteran of his pension award, including his entitlement amount, payment start date, and how his benefits were calculated.  He was advised that the amount of his pension had been calculated using the annual maximum rate, reduced by his countable income, with an exclusion for his submitted unreimbursed medical expenses.  He was further advised that in light of the proposed finding of incompetency, his benefits were being withheld pending a formal determination.  

In February 2007, the Veteran submitted a request for a waiver of due process regarding his determination of competency.  Approximately two days later, the Veteran died.  

In March 2007, the appellant submitted a claim for accrued benefits, requesting payment of past due benefits for the period from the date of the Veteran's entitlement, October 17, 2006, to the date of his death in February 2007.  On her application, the appellant indicated that she had paid the following expenses for the Veteran:  a lift chair in the amount of $1370 and unspecified medical expenses in the total amount of $500.  She attached an April 2006 receipt from a furniture store for a lift chair in the amount of $274.76.  No other documentation was provided.  

In a June 2007 letter, the RO explained that expenses incurred prior to the date of the Veteran's entitlement to pension could not be considered.  In a January 2008 letter, the RO asked the appellant to submit a detailed expense report with receipts showing the expenses she bore for the Veteran's last sickness and burial.  The appellant did not provide the requested information.  

At her March 2013 Board hearing, the appellant testified that she had served as the Veteran's caretaker during his final illness.  She indicated that she had just retired and his 24-hour care had caused her significant hardship.  The appellant acknowledged that there were no "no medical expenses that [she] paid out of pocket that [she had] receipts for."  Transcript at page 6.  She further acknowledged that she had not paid the Veteran's burial expenses.  Rather, they had been paid by a living trust administered by her brother.  

Law and Regulations

Periodic monetary benefits to which a Veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits."  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012); see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996).

Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution.  Essentially, accrued benefits are paid as follows:  (i) to the Veteran's spouse; (ii) his or her children (in equal shares); or (iii) his or her dependent parents (in equal shares) or the surviving parent.  38 U.S.C.A. § 5121(a)(2) (West 2002); 38 C.F.R. § 3.1000(a)(1) (2012).  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.  38 U.S.C.A. § 5121(a)(6) (West 2002); 38 C.F.R. § 3.1000(a)(5) (2012).

The term "child of the Veteran" means an unmarried person who is under the age of 18 years, or who, before reaching the age of 18 years, became permanently incapable of self-support.  38 U.S.C.A. § 101(4) (A) (West 2002); 38 C.F.R. § 3.57 (2012).  

Analysis

As set forth above, in order to be eligible for accrued benefits, the claimant must first qualify as a member of one of the statutorily enumerated categories of recipients.  See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Marlow v. West, 12 Vet. App. 548, 551 (1999).

As a preliminary matter, the Board finds that the evidence does not show that the appellant is entitled to any accrued benefits as the child of the Veteran.  As set forth above, the term "child of the Veteran" means an unmarried person who is under the age of 18 years, or who, before reaching the age of 18 years, became permanently incapable of self-support.  38 U.S.C.A. § 101(4) (A); 38 C.F.R. § 3.57.  The record does not show, nor does the appellant contend, that she is under the age of 18 or that she became permanently incapable of self support before the age of 18.

Thus, the only avenue potentially available to the appellant is 38 U.S.C.A. § 5121(a)(6), which provides that "[i]n 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."  See also 38 C.F.R. § 3.1000(a)(5).

In this case, the appellant has acknowledged that she did not bear the costs of the Veteran's burial.  In addition, the appellant was offered the opportunity to submit documentation showing that she bore the expense of the Veteran's last sickness but she has acknowledged she had no qualifying expenses and/or documentation.  Caranto v. Brown, 4 Vet. App. 516, 518-19 (1993) (holding that 38 U.S.C.A. § 5121 places the burden on the claimant to produce the evidence necessary for VA to determine whether an award from accrued benefits may be properly made, and that it is within VA's discretion to require an appellant to submit receipts to substantiate payment).  

The Board has also carefully considered the appellant's statements to the effect that she incurred significant hardships, including lost wages, while serving as the Veteran's caretaker during his last sickness.  The Board does recognize the appellant's sacrifices of time and lost wages in caring for her father during his final illness.  Although the Board is sympathetic, it is bound by the applicable law and regulations as written.  38 U.S.C.A. § 7104(c) (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Here, the law provides only for reimbursement of expenses borne for a Veteran's last sickness.  There is no legal basis for payment to the appellant for lost wages.  Indeed, the U.S. Court of Appeals for Veterans Claims (Court) has held that nonmedical expenses are excluded in cases involving reimbursement from accrued benefits.  Caranto, 4 Vet. App. at 518.  

In summary, the Board finds that the law pertaining to eligibility for accrued benefits is dispositive of this issue and the appellant's claim must be denied because of the absence of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  As the Board has denied the claim as a matter of law, there is no issue as to whether VA has complied with its duty to notify or assist the appellant and there is no reasonable possibility that any further assistance would aid the appellant in substantiating this claim.  38 U.S.C. §§ 5102, 5103 and 5103A (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002).


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ORDER

Entitlement to accrued benefits is denied.


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs