Citation Nr: 1343535 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 12-05 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to accrued benefits. WITNESS AT HEARING ON APPEAL Appellant and his three siblings ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 1943 to December 1945. The appellant is his son. The Veteran died in October 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2012, the appellant as well as his three siblings testified before the undersigned via video conference from the RO at a joint hearing. FINDINGS OF FACT 1. In a February 2010 decision, the Veteran was awarded entitlement to nonservice-connected pension benefits as well as special monthly pension based on the need for aid and attendance, from May 26, 2009. 2. The Veteran was not paid the monies owed to him while a proposed finding of incompetency was undertaken. 3. In a September 2010 rating decision, the RO determined that the Veteran was not competent to handle disbursement of funds. 4. The Veteran's son, M.T.D., filed a claim for accrued benefits owed to the deceased beneficiary in December 2010, within a year of the Veteran's death. 5. The appellant and his other two siblings also filed a claim for accrued benefits dated in July 2011, within a year of the Veteran's death. 6. In May 2011, the Veteran's son, M.T.D., was awarded $10,859 out of VA benefits due and owed the Veteran at his death as reimbursement for the costs of the Veteran's funeral which he had paid. 7. The appellant and his three siblings have furnished evidence showing that they each also bore the cost of the Veteran's last illness at the assisted living facility where he resided, in equal shares. 8. When the Veteran died, there were VA pension/aid and attendance benefits that he was owed, but had not been paid. CONCLUSION OF LAW Accrued benefits in the amount of one-fourth of the remaining accrued benefits due and owed to the Veteran at his death derived from due but unpaid pension/aid and attendance benefits are payable to the appellant. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2013). 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). Accrued Benefits The Board notes that during the Veteran's lifetime, in a February 2010 rating decision, the Veteran was granted entitlement to nonservice-connected pension benefits and entitlement to special monthly pension based on the need of aid and attendance from May 26, 2009. In that rating decision, a finding of incompetency was proposed. The Veteran was notified in July 2010 of these actions. He was also told that VA was withholding his funds due to the proposed incompetency. Information was then received on the Veteran's behalf which detailed his net worth and estate value. In June 2010, a notice of disagreement was received from the Veteran, although it was non-specific as to which issue. He indicated that his son, M.T.D., should be named his payee. Additional signed paperwork was received from the Veteran again appointing this son as his payee. In a September 2010 rating decision, the RO determined that the Veteran was not competent to handle the disbursement of funds. In October 2010, a VA Form 21-592 was completed in which it was indicated that the Veteran was residing in an assisted living home and that M.T.D. was his fiduciary. About a week later, the Veteran died and VA was informed of his death by M.T.D. When he died, a portion of his due pension/aid and attendance benefits had not been paid to him. In December 2010, M.T.D. applied for VA burial benefits, indicating that he used his own funds amounting to $10,859.10 to pay for the Veteran's funeral. He furnished the appropriate paid receipt showing that he paid this amount. Also, in December 2010, an application was received from M.T.D. for payment of accrued benefits to reimburse himself as well as his three siblings, including the appellant, for equal payments of $7,580 that they paid to the assisted living home for the Veteran's last illness prior to his death. These applications for accrued benefits were received within a year of the Veteran's death. In May 2011, M.T.D. was informed that he had been awarded $10,859 (amount of the last burial expenses rounded down to the nearest dollar). However, M.T.D. disagreed with the amount that he was paid as that amount did not reimburse him and his siblings, including the appellant, the monies that they spent to maintain the Veteran's care during his last illness. Another statement was received in July 2011 which was signed by all four siblings, including the appellant, and accepted as the appellant's application (as well as the application of the other two siblings) for accrued benefits. This application was also received within a year of the Veteran's death. It was explained that the Veteran had only received two months' worth of payments when he died, although he was owed more, and the four siblings had paid the remainder of the assisted living facility's costs to cover his last illness. In a February 2012 Report of Contact, it was noted that M.T.D. had explained that each of his three siblings, including the appellant, would pay him from their Citizens' bank accounts and he would then write one check on all of their behalf to the assisted living facility. At this juncture, the Board notes that financial information has been submitted, and testimony presented at their joint hearing, which the Board accepts as verification of this information. 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) (West 2002). 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). 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) (2013). The amount payable shall not include any payment for the month in which the payee died. 38 C.F.R. § 3.1003(a) (2013); see also 38 C.F.R. § 3.500(g) (2013). The appellant has standing in this case to receive accrued benefits as the individual who, in part, bore the expenses of the last sickness of the Veteran, as explained below. The appellant is entitled to receive only so much of the accrued benefits available as is necessary to reimburse him for the last illness or burial expenses that he incurred on the Veteran's behalf. 38 C.F.R. § 3.1000(a)(5) (2013). As noted, VA initially paid M.T.D. $10,859 for the burial costs. That matter is not disputed and the appellant does not assert that he should not have been so paid. However, the appellant also seeks to be paid the pension/aid and attendance that was due to the Veteran, but unpaid, when he died. The Board notes that VA apparently withheld monies while processing the incompetency matter. He maintains that VA owes him and his three siblings the remaining amount, in equal shares, as they bore the costs of the Veteran's last illness because VA monies were being withheld. M.T.D. was reimbursed the burial expenses that he was paid out of monies due but unpaid to the Veteran when he died; hence "accrued benefits." However, as conceded by the RO, there are remaining monies due but unpaid to the Veteran when he died, beyond the reimbursement for the burial of $10,859. The appellant and his siblings were requested to provide additional supporting evidence associated with his claim that would permit reimbursement of additional monies he paid for the Veteran's expense of last sickness and that evidence has been received and accepted. The appellant and his siblings are one of the classes of individuals who may be entitled to accrued benefits pursuant to 38 C.F.R. § 3.1000(a)(1) (2013) as they are persons who bore the expenses of the last sickness. In summary, the Board finds that the appellant is entitled to reimbursement for actual monies expended by him for the Veteran for his last illness in the amount of one-fourth of the remainder of the pension/aid and attendance monies that were due to the Veteran, but unpaid, when he died, after payment of the burial expenses. The RO indicated in the appellant's February 2012 statement of the case that the Veteran was owed, but not paid, monies when he died. One sibling, M.T.D., has been paid $10,859 out of those "accrued" monies. However, additional "accrued" benefits remain unpaid. The appellant is therefore due one-fourth of that amount, with the other three-fourths being paid to his siblings, equally. (Continued on the next page) ORDER Entitlement to accrued benefits in the amount of one-fourth of the remaining accrued benefits due and owed to the Veteran at his death is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs