Citation Nr: 1341933 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 08-34 749 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Eligibility to payment of special monthly pension (SMP) based on the need for aid and attendance, for purposes of accrued benefits. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from June 1949 to December 1952 and from October to December 1962. The Veteran also had unspecified periods of active and inactive duty for training. The Veteran died in January 2007, and the appellant is his adult daughter. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the RO which denied the benefits sought on appeal. The Board remanded the appeal for additional development in March 2010. FINDINGS OF FACT 1. A claim for special monthly pension based on the need for aid and attendance was received from the Veteran in September 2005, and was granted by the RO in August 2006. 2. The Veteran died in January 2007, prior to the disbursement of aid and attendance benefits. 3. The appellant does not meet the statutory criteria for "child" as defined by VA regulations, and did not use any of her personal funds to cover the expenses of the Veteran's final illness. CONCLUSION OF LAW Eligibility to payment of special monthly pension based on the need for aid and attendance, for purposes of accrued benefits is not authorized by law. 38 U.S.C.A. §§ 101(4)(A), 5107, 5121 (West 2002); 38 C.F.R. § 3.57, 3.1000 (2013); see also, Sabonis v. West, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a)(1) (West 2002); 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As a preliminary matter, the Board notes that the pertinent facts in this case are not in dispute. Resolution of this appeal is based on the application of the law rather than on weighing of the evidence. Under such circumstances, the Veterans Claims Assistance Act of 2000 (VCAA) does not apply. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). Nonetheless, the appellant was provided with adequate notice of the applicable laws and regulations, an explanation as to why her claim for accrued SMP benefits lacked legal merit, and was given additional time to formulate an adequate response. Under the circumstances, the Board finds that the AMC has substantially complied with the remand orders and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As indicated above, the basic facts in this case are not in dispute. The Veteran submitted a claim for SMP based on the need for aid and attendance (AA) in September 2005, and was granted the benefit by rating action in August 2006; effective from September 8, 2005, the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The RO also proposed a finding of incompetency based on evidence that the Veteran suffered from Alzheimer's dementia, and notified the Veteran that his benefits were being withheld until the issue of incompetency was resolved. In a letter received in September 2006, the Veteran requested that his daughter, the appellant in this case, be appointed fiduciary to handle his financial affairs. By rating action in December 2006, the RO found that the Veteran was incompetent, and notified him that someone would be appointed to manage his financial affairs. Before VA appointed a fiduciary (and SMP aid and attendance benefits were disbursed), the RO was notified by the appellant, that the Veteran died on January [redacted], 2007. Applicable VA laws and regulations provide that periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at the time of death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid for a period not to exceed two years, shall, upon the death of a veteran, be paid to the living person first listed: (1) the veteran's spouse; (2) the veteran's children (in equal shares); (3) the veteran's dependent parents (in equal shares). 38 U.S.C.A. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). In 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. 38 U.S.C.A. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). In the instant case, the appellant is the adult daughter of the Veteran and does not meet the statutory definition of "child" as defined in 38 U.S.C.A. § 101(4)(A) or 38 C.F.R. § 3.57. Thus, the appellant has no legal entitlement to accrued benefits under 38 U.S.C.A. § 5121(a)(2). Likewise, the appellant does not claim to have used any of her personal funds to cover the expenses of the Veteran's final illness. (See appellant's VA Form 9, received in November 2008). Rather, the appellant reported that all funds for the Veteran's final expenses were paid out of his estate, for which she held the power of attorney and was executor of his estate. However, an "estate" does not come within the meaning of "person" under 38 U.S.C.A. § 5121(a)(6); see also, Wilkes v. Principi, 16 Vet. App. 237 (2002). Finally, as noted above, no payment of VA accrued benefits were paid to the Veteran's estate. Therefore, the provisions of 38 U.S.C.A. § 5122 (cancellation of check mailed to deceased payee) do not apply. The Board is sympathetic to the confusion caused by the misleading information provided to the appellant in the October 2008 statement of the case, indicating that the Veteran's estate may be entitled to reimbursement of expenses. However, VA laws and regulations on the disbursement of accrued benefits are clear and unambiguous, and the Board is not free to disregard them. Consequently, the Board concludes that it has no alternative but to find that the appellant's claim for payment of SMP based on the need for aid and attendance for purposes of accrued benefits lacks legal merit and must be denied. Accordingly, the appeal is denied. The Board is bound by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the General Counsel, see 38 U.S.C.A. § 7104(c) (West 2002), as well as the laws of the United States and the precedent decisions of the Court. The appellant's claim in this matter is denied based on the application of unambiguous law as applied to facts not materially in dispute; consequently, the benefit of the doubt rule as set forth at 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102 is not for application. Sabonis v. West, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to payment of special monthly pension (SMP) based on the need for aid and attendance for purposes of accrued benefits, is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs