Citation Nr: 1332878 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-22 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to accrued benefits owed to the Veteran prior to his death. 2. Entitlement to nonservice-connected burial benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to January 1946, which included service in World War II, for which he was awarded the Combat Infantryman Badge and The Purple Heart, and he has been posthumously awarded The Bronze Star Medal. The Veteran died in January 007, and the Appellant is the Veteran's son, who is representing himself as the heir to the Veteran's estate, seeking accrued benefits that he believes were owed to the Veteran at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Appellant testified at an RO formal hearing in February 2011, and at a Board hearing conducted by the undersigned Acting Veterans Law Judge in April 2013. Transcripts of these proceedings have been associated with the claims file. The issues on appeal have been rephrased to more succinctly and accurately represent the legal matters before the Board. FINDINGS OF FACT 1. The Veteran is deceased, and the Appellant is not a dependent "child," as defined for VA purposes, entitled to payment of accrued benefits other than expenses relating to the Veteran's last sickness and burial. 2. The Appellant incurred an expense of $466.32 related to the Veteran's burial, and he has not reported any remaining unreimbursed expenses relating to the Veteran's last sickness and burial. CONCLUSIONS OF LAW 1. The criteria for the award of accrued benefits in the sum of $466.32 have been met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. §§ 3.1000, 3.1002 (2013). 2. The appeal seeking non-service-connected burial allowance or plot or interment allowance is dismissed as moot. 38 U.S.C.A. §§ 2302, 2303, 5107 (West 2002); 38 C.F.R. §§ 3.1600, 3.1605 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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) (2013). 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 the facts are not in dispute. Resolution of the appeal is wholly dependent on interpretation of the law and regulations pertaining to the payment of accrued and burial 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 further notes that the Appellant was provided with the text of pertinent regulations governing the adjudication of this claim in a May 2007 letter. Entitlement to Accrued Benefits The Appellant is the adult son of the deceased Veteran, and the Appellant has made numerous and passionate arguments regarding his perception that the Veteran's combat-related illnesses were not properly recognized, treated, or evaluated during the Veteran's lifetime. Thus, the Appellant is now seeking those accrued benefits he believes were owed to, but erroneously denied, the Veteran during his lifetime. The Appellant calculates the total accrued benefits that he believes were due to the Veteran as a sum exceeding $600,000. Specifically, the Appellant contests VA's failure to award the Veteran the increased compensation granted in a September 2006 rating decision, several months prior to the Veteran's death in January 2007. A finding of incompetency was proposed in the September 2006 rating decision (based on statements made by a physician) and implemented in a January 2007 rating decision, which was issued shortly before the Veteran's death. The proposal and implementation of the incompetency finding tolled the award of additional benefits granted by the September 2006 rating decision, until VA's assignment of a fiduciary to handle the Veteran's funds. However, the fiduciary was not appointed in the narrow window between the incompetency finding and the Veteran's death. The Appellant argues that because he and his wife held the Veteran's power of attorney, the administrative process of proposing incompetency and appointing a VA fiduciary after the incompetency was established was unnecessary, and that this administrative action created a delay whereby the Veteran was not awarded benefits owed to him during his lifetime. The Appellant also desires to continue to pursue a claim pending at the time of the Veteran's death, asserting clear and unmistakable error in prior rating decisions dating from the Veteran's discharge from service in 1946. The Appellant asserts that numerous rating decisions issued during the Veteran's lifetime either denied or improperly rated the Veteran's service-connected disabilities. Further, the Appellant desires to pursue the appeal pending at the time of the Veteran's death, disputing the September 2006 rating decision's denial of service connection for a gastrointestinal disorder, referred to as irritable bowel syndrome. 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) (2013). 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 definition of the term "child," 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). As the Appellant, who is the Veteran's adult child, is over the age of 23 and has not been deemed permanently capable of self-support, the Appellant cannot qualify as a "child" for VA purposes who may be awarded accrued benefits. Accordingly, he does not have legal standing to recover the entirety of the accrued benefits that he asserts were due to the Veteran at the time of his death. However, 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 record reflects that VA reimbursed the Appellant for expenses relating to the Veteran's last sickness and burial in the amount of $4732.64, as reflected in a July 2007 decision. As reflected in the Appellant's July 2007 application for burial expenses, the amount of $4732.64 was the total amount of burial expenses that had been paid by the Appellant at that time. Additionally, VA paid the sum of the unpaid balance of $1073.00 to the funeral home that handled the Veteran's funeral and burial, as reflected in an August 2007 decision. Since that time, VA received documentation of additional expenses relating to the Veteran's burial, namely opening and closing costs which totaled $755.00, and VA accordingly issued payment of that amount to the Appellant, as reflected in a May 2009 decision. The Appellant asserts that he should also be awarded accrued benefits for the scroll plate commemorating the Veteran's World War II service that is affixed to the Veteran's grave marker. (The Veteran is interred at a national veterans' cemetery.) The Appellant asserts that he informed VA of the cost of the scroll plate when initially reporting the other burial expenses, and he assumed that VA would pay for this burial expense directly, as this was the case with the expenses VA paid to the funeral home. However, as VA did not pay for this expense when the Appellant first submitted the purchase price in May 2007, the Appellant purchased the scroll himself in July 2009. The record reflects that the Appellant did indeed inform VA of this expense in May 2007, although the Appellant's notation on the submitted form reflects that the Appellant intended to pay this fee himself, and presumably later seek reimbursement. The record further reflects that the Appellant did indeed pay the related fee (based on updated cost estimate) by check in July 2009. The RO denied the Appellant's related request for reimbursement as untimely, finding that the Appellant made the payment and requested reimbursement more than one year after the Veteran's death. However, given the Appellant's reported misunderstanding regarding the payment of this aspect of the Veteran's burial expenses, and given that the Appellant advised VA of this expense within one year of the Veteran's death, and given that VA did pay for other burial expenses without first requiring the Appellant to incur the cost, the Board finds that reasonable doubt should be resolved in the Appellant's favor. Thus, the scroll plate estimate submitted by the Veteran in May 2007 is deemed a timely notification of a burial expense. Accordingly, an award of accrued benefits for reimbursement for the sum of $466.32 to the Appellant for the payment for the scroll affixed to the Veteran's grave marker is warranted. Nonservice-connected Burial Benefits Under certain circumstances, a burial allowance is payable to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600. Where, as here, the Veteran's death is not service-connected, the maximum benefit payable is $300.00. 38 U.S.C.A. § 2302. However, in the instant case, the Appellant has been reimbursed for the Veteran's burial expenses in the form of accrued benefits, and that award greatly exceeds nonservice-connected burial benefits payable pursuant to 38 U.S.C.A. § 2302. As there is no indication of any remaining burial expenses not paid to the Appellant, the appeal of this claim is dismissed as moot. ORDER Accrued benefits in the amount of $466.32 is granted. The appeal seeking entitlement to a non-service-connected burial allowance or plot or interment allowance is dismissed as moot. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs