Citation Nr: 1329178 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-08 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to additional accrued benefits derived from due but unpaid aid and attendance benefits in the amount of $3,603.75. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The appellant is an accrued benefits payment recipient as a result of the death of her mother who was the surviving spouse of the Veteran. The Veteran served on active duty from October 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 26, 2009, decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted accrued benefits in the amount of $3,053.25 and denied payment for other last expenses. A statement of the case as to the issue on appeal was issued in January 2010 by the RO in Columbia, South Carolina. The case was subsequently transferred to the RO in Indianapolis, Indiana. In September 2011, the Board remanded this case. It was recertified to the Board from the Columbia, South Carolina RO. FINDINGS OF FACT 1. In a September 2008 decision, the Veteran's widow as the surviving spouse of the Veteran was awarded entitlement to aid and attendance benefits of $951 per month, effective from March 1, 2007; she later died in October 2008. 2. The widow did not initiate an appeal to the September 2008 award of aid and attendance benefits. 3. The appellant, the widow's daughter, filed a claim for accrued benefits owed to the deceased beneficiary in November 2008, within a year of the widow's death. 4. In March 2009, the appellant was awarded $3,053.25 for "Cost of Funeral Goods and Services". 5. The appellant seeks to also be paid purported due and unpaid aid and attendance benefits totaling $6,657 or $951 times seven months. 6. The appellant does not satisfy statutory definition of "child" under 38 U.S.C.A. § 101(4)(A) to be eligible for the payment of accrued benefits for the aid and attendance benefits. CONCLUSION OF LAW Additional accrued benefits in the amount of $3,603.75 derived from due but unpaid aid and attendance benefits are not payable to the appellant. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, the United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case, resolution of the appeal is wholly dependent on interpretation of the law and regulations pertaining to the payment of accrued benefits. Because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). The Board notes that in accordance with the Board's September 2011 remand, the RO endeavored to associate with the record copies of documents which are pertinent to the claim, but not formerly associated with the record. These records are contained in the claims file as well as VA's Virtual System. Accrued Benefits The Board notes that during her lifetime, the Veteran's widow (mother of the appellant), applied for VA aid and attendance benefits. In a June 2008 rating decision, the widow was awarded VA death pension on the basis of aid and attendance effective from February 12, 2008; however, such benefits were not paid due to the income of the widow exceeding the maximum annual death pension limit set by law. However, upon further documentation, in a September 2008 decision letter, the widow was notified of the "restart" of her award of VA death pension benefits in a monthly amount of $951, effective from March 1, 2007. Upon receipt of this notification letter, the widow appointed the appellant as her fiduciary. The widow later died in October 2008. The widow had not been paid the aid and attendance benefits when she died. Within a year of the widow's death, in November 2008, the appellant made an application for death benefits and was paid $3,053.25 by VA for the "Cost of Funeral Goods and Services" since she paid in part for the widow's last sickness or burial expenses and based on the aid and attendance benefits that were unpaid and due to the widow when she died; thus available for "accrued" benefits payment. However, the appellant seeks accrued benefits for the remaining aid and attendance benefits which the widow was not paid during her lifetime. She believes that she is due this payment because the money was due to her mother and she used her own expenses for her mother's care. The appellant calculated these remaining benefits as totaling $3,603.75. This total is derived from aid and attendance benefits originally due the widow of $6,657 ($951 times 7 (seven months)) less the $3,053.25 already paid. 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) (2012). 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) (West 2002); 38 C.F.R. § 3.1000(a)(5) (2012). 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) (2012); see also 38 C.F.R. § 3.500(g) (2012). The appellant has standing in this case to receive accrued benefits as the individual who, in part, bore the last sickness or burial expenses of the Veteran's widow. The appellant is entitled to receive only so much of the accrued benefits available as is necessary to reimburse her for the last illness or burial expenses that she incurred on the widow's behalf. 38 C.F.R. § 3.1000(a)(5). As noted, VA paid her $3,053.25 for these expenses. The appellant does not dispute the amount; rather, she seeks to be paid the aid and attendance that was due to the widow, but unpaid, when she died, and is not seeking additional "death benefits." She asserts that no aid and attendance benefits were received by the widow even though the widow was owed $6,657. Although she refers to being paid $3,053.25, she seeks the full amount which she indicated is $3,603.75. She contends that she had an agreement with her mother to be paid such funds as she used her own monies to care for her. The appellant was reimbursed the last illness or burial expenses that she was paid out of monies due but unpaid to the widow when she died; hence "accrued benefits." Although the appellant refers to an agreement that she had with the mother for monthly care of her mother, she may only be paid for actual expenses, which she has received. While the appellant was requested to provide additional supporting evidence associated with her claim that would permit reimbursement of additional monies she paid for her mother's expense of last sickness or burial, no further documentation was provided by the appellant. See January 2012 RO letter to appellant. As noted by the RO in the May 2013 SSOC, applicable regulations clearly state that the amount of accrued benefits payable as reimbursement is restricted to the actual amount of expenses paid; and the appellant did not provide any copies of medical bills that she paid or any copies of bills that she paid during the period prior to her mother's death. Such documentation would potentially have provided for additional accrued benefits to the appellant. Further, while there are other classes of individuals who may be entitled to accrued benefits, the Board finds that the appellant is not entitled to additional accrued benefits even though the widow still had benefits due but unpaid to her because she is not one of the possible listed recipients. Specifically, she does not have standing to receive those remaining benefits because she is not the widow's spouse, child, or dependent parent, as defined by governing legal criteria, and accordingly, she is not entitled to accrued benefits pursuant to 38 C.F.R. § 3.1000(a)(1) (2012). She clearly is not the spouse or dependent parent. For purposes of this section, "child" is defined as 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 or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child; and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self support; or (iii) 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)(A) (West 2002); 38 C.F.R. §§ 3.57, 3.1000(d)(2) (2012). Further, to be eligible for accrued benefits, an individual must meet the definition of "child" at the time of the Veteran's, or in this case, payee's death. 38 C.F.R. § 3.1000(d)(2) (2012). In the present case, there is no dispute that the appellant is the widow's daughter, but as of the date of the widow's death, the appellant was over the age of 23 as she listed her birth year on her application as 1943. The appellant has never contended, and the evidence does not suggest, that she became permanently incapable of self support prior to the age of 18. Thus, the appellant is not a "child" under 38 U.S.C.A. § 5121 and therefore does not meet the criteria in this case for any additional accrued benefits. In summary, the Board finds that the appellant has already been paid the accrued benefits payable to her by way of the last illness or burial expenses. She was reimbursed actual monies expended by her for the widow for her last illness or burial. She is not entitled to additional accrued benefits based on any remaining unpaid but due aid and attendance benefits that were owed to the widow since her status is not included in the defined list for accrued benefits as a spouse, child, or dependent parent. Thus, she is not entitled to receive those additional benefits. To the extent that the appellant may seek to substitute herself for the widow, the Board notes that substitution in an appealed case requires a Notice of Disagreement to have been filed prior to the original claimant's death, in this case, the widow. However, as previously noted, there was no claim pending when the widow died. She had been granted aid and attendance benefits in a decision dated the month prior to her death. She did not initiate an appeal to that decision. Thus, the Board will not review that avenue for obtaining benefits in this case. See VBA Fast Letter No. 10-30 (Aug. 10, 2010). VA is bound by the applicable law and regulations as written. See 38 U.S.C.A. § 7104(c) (West 2002). In cases such as this, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the appellant's claim of entitlement to additional accrued benefits for aid and attendance benefits is denied. ORDER Entitlement to additional accrued benefits derived from due but unpaid aid and attendance benefits in the amount of $3,603.75 is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs