Citation Nr: 1628410 Decision Date: 07/15/16 Archive Date: 07/28/16 DOCKET NO. 12-18 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee Pension Management Center THE ISSUE Entitlement to accrued benefits in excess of $11, 816.00, to include reimbursement of expenses for the Veteran's last sickness and burial. WITNESSES AT HEARING ON APPEAL The appellant and her sister, E.T. ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from September 1943 to November 1945. He died in March 2010. The appellant is the adult daughter of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 administrative denial by the Pension Management Center at the Regional Office (RO) of the Department of Veterans Affairs (VA) in Milwaukee, Wisconsin. Although the RO in Nashville, Tennessee subsequently issued the May 2012 statement of the case, the Pension Management Center has maintained jurisdiction over this claim. In September 2013, the appellant and her sister testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims folder. In December 2014, the Board remanded the claim to provide the appellant with the relevant notice as well as to allow her the opportunity to submit a detailed accounting as to the specific expenses paid for the Veteran's last sickness. In a March 2016 Memo and supplemental statement of the case (SSOC), the VA Pension and Management Center determined that $11, 816.00 was payable to the appellant as accrued payable based on reimbursement of last expenses paid for the Veteran. As this award did not represent the full grant of the benefit sought, the Board has recharacterized the issue as entitlement to accrued benefits in excess of $11,816.00, to include reimbursement of expenses for the Veteran's last sickness and burial. The Board notes that, in addition to the paper claims file, the record on appeal now includes paperless, electronic records in Virtual VA and Veteran Benefits Management System (VBMS) files. FINDINGS OF FACT 1. In a November 2009 determination letter, the RO awarded the Veteran nonservice-connected disability pension with entitlement to aid and attendance, effective September 4, 2008, payable from October 1, 2008; however, retroactive payment of pension benefits was delayed due to incompetency determination and pending appointment of a fiduciary. 2. The Veteran died in March 2010, prior to full payment of the benefits awarded. 3. The appellant does not satisfy the statutory definition of "child" under the governing statute to be eligible for the payment of accrued benefits. 4. The appellant did not pay for expenses in excess of $11,816.00 for the Veteran's last sickness and the burial. CONCLUSION OF LAW As the appellant lacks legal entitlement to payment of accrued benefits in excess of $11, 816.00, and reimbursement for the expense of last sickness and burial is not warranted, the appeal is without legal merit. 38 U.S.C.A. §§ 101(4)(A), 5121 (West 2014); 38 C.F.R. §§ 3.59(a), 3.250, 3.1000, 3.1003 (2015); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2013 Board hearing, the undersigned Veterans Law Judge specifically addressed the legal criteria relevant to the claim and asked questions as to evidence that could support the Appellant's allegations. Moreover, the Appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. The Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. The appellant has not identified, and the record does not indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. There are no medical questions at issue in this case. The Appellant has not alleged prejudice with respect to notice. See Shinseki v. Sanders, 556 U.S. 396, 409-13 (2009) (holding prejudicial error analysis applies in context of claims for VA benefits). The record contains evidence relating to the relevant, disputed factual issues and the Appellant was adequately notified in January 2015 and January 2016, pursuant to the December 2014 Board remand, of the evidence necessary to determine those factual issues. The remaining issues are dependent on interpretation of the applicable laws and regulations pertaining to entitlement to accrued benefits. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Appellant in the development of his accrued benefits claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Caranto v. Brown, 4 Vet. App. 516, 519 (1993) (burden is on the claimant to produce the evidence necessary for the VA to determine whether an award from accrued benefits may be properly made). II. Legal Criteria & Analysis The appellant has sought accrued benefits on the basis that she and her siblings, as the surviving heirs, are entitled to receive the Veteran's retroactive non service-connected pension payment of $21,196.00. In the alternative she contends that the she is entitled to the accrued benefits as reimbursement for the Veteran's last expenses. See July 2012 VA-Form 9. An eligible survivor is entitled to receive the full amount of benefits due and unpaid under 38 U.S.C.A. § 5121. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651. However, in order to be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (concluding that 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C. § 101(4)(A)); Marlow v. West, 12 Vet. App. 548, 551 (1999) (noting that section 5121(a) "limits qualifying survivors to the deceased veteran's spouse, child . . . or dependent parents"). Upon consideration of whether the appellant is eligible to receive benefits under 38 U.S.C.A. § 5121, the Board finds that she is not. The appellant does not contend that she is under the age of 18, that she became permanently incapable of self-support before the age of 18, or that she is under the age of 23 and is pursuing a course of instruction at an educational institution. Thus, the appellant cannot be deemed an eligible survivor under 38 U.S.C.A. § 5121 because she does not meet the statutory definition of "child" under 38 U.S.C.A. § 101(4)(A) to be eligible for the payment of accrued benefits. As a result, she may recover only so much of the accrued benefits as may be necessary to reimburse her for expenses she personally incurred in connection with the Veteran's last sickness and burial. See 38 U.S.C.A. § 5121(a)(6) (West 2014); 38 C.F.R. § 3.1000(a)(5) (2015). The VA Adjudication Procedures Manual, M21-1MR (M21-1MR) (Manual) contains provisions relative to the allowance of items of expense in connection with a claim for reimbursement under 38 U.S.C.A. § 5121(a)(6). M21-1MR, Part VIII, Chapter 4, para. 12. The Manual specifically lists physician expenses, medicinal expenses, nursing expenses, and transportation expenses (incurred in transporting the body of the deceased beneficiary to the place of burial and for an attendant or escort to and from the place of burial). M21-1MR, Part VIII, Chapter 4, para. 12(b)-(e). The Manual provides that payment of accrued benefits, as reimbursement, is not limited to specific items or amounts; that consideration is to be given to all reasonable expenses incident to last illness and burial; and that only those charges which are clearly shown not to be related to the beneficiary's last illness are to be disallowed. M21-1MR, Part VIII, Chapter 4, para. 12(a), (g). The Manual further provides that claims for reimbursement must generally be supported by bills; provided, however, that bills covering the cost of medicines are not required if the claimant alleges that the medicine was paid for in cash and it is apparent that the amount claimed is reasonable and consistent with the character and duration of the last illness. M21-1MR, Part VIII, Chapter 4, para. 12(c). While the term "last sickness" is not defined under VA law or regulations, a similar term is defined in the VA Adjudication Procedure Manual. Under M21-1MR, Part V, Subpart 1, Chapter 3, Section D, para 15.b, the term "last illness" was defined as the period from the onset of the acute attack causing death up to the date of death. If death resulted from a lingering or prolonged illness instead of an acute attack, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person. The United States Court of Appeals for Veterans Claims (Court) has specifically held that non-medical expenses are to be excluded from reimbursement under the relevant provisions. Caranto v. Brown, 4 Vet. App. 516, 518 (1993). The Court has also held 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 prior to granting a claimant's application. Id. at 519. By way of background, in a November 2009 determination, the Veteran was granted entitlement to non-service-connected pension and special monthly pension based on the need for aid and attendance, both effective from September 4, 2008, payable from October 1, 2008, pending appointment of a fiduciary. See November 19, 2009 Notification Letter in Virtual VA. In November 2009, the appellant agreed to serve as the Veteran's legal custodian as evidenced by the completion of VA Form 21-4703; and she was informed that she needed to be bonded for $40,000.00 before the $21,196.00 retroactive funds could be released. A February 1, 2010 VA-Form 21-555 ordered the immediate release of all VA funds, to include retroactive funds as the bond had been received; however, the Veteran passed away a little over one month later prior to payment of $21,196.00 due. In May 2010, the appellant submitted a VA Form 21-530, "Application for Burial Benefits" along with a funeral home statement indicating that the appellant paid expenses towards the Veteran's funeral and burial. See May 24, 2010 funeral Bill/Expenses and VA Form 21-530 in Virtual VA. The cost of the total services and merchandise from Chattanooga Funeral Home Crematory & Florist was $12,716.00, without consideration of the manager approved $600 allowance. In an October 2010 determination letter, the VA Pension Management Center authorized $300.00 for the burial allowance. See October 8, 2010 notification in Virtual VA. In a March 2016 Memo/administrative decision and supplemental statement of the case (SSOC), the VA Pension and Management Center determined that $11, 816.00 was payable to the appellant as accrued payable based on reimbursement of last expenses paid for the Veteran. The VA Pension and Management Center determined that based on the previously submitted funeral home statement indicating that the appellant paid expenses toward the Veteran's funeral and burial (totaling $12,716.00 minus the manager allowance of $600) less the $300.00 previously paid by VA to the appellant, accrued benefits in the amount of $11,816.00 was allowed. At the same time, the VA Pension and Management center determined that entitlement to accrued benefits in excess of $11,816.00 on the basis of reimbursement was denied. See March 11, 2016 VA Memo, March 19, 2016 Administrative Decision, and March 23, 2016 SSOC in Virtual VA. In addition to the funeral home statement, the appellant has submitted bills and some receipts from various drugstores, and the assisted living facility and nursing home where the Veteran resided. Considering that the appellant was the Veteran's legal custodian, when affording the appellant the benefit-of-the-doubt, the Board concludes that it is reasonable the appellant personally paid for some of the Veteran's care prior to his death. The Board observes, however, the evidence does not show what specific expenses were incurred for the Veteran's last sickness beyond the expenses toward the Veteran's funeral and burial, which have now been paid by VA. No additional detailed accounting or other evidence breaking down the specific expenses has been submitted. For these reasons, the Board finds that reimbursement in excess of $11,816.00 for the expense of last sickness and burial is not warranted under 38 U.S.C.A. § 5121(a)(6). Furthermore, the appellant's relationship to the Veteran (non-dependent child) and her status as his legal guardian/fiduciary does not give her standing to obtain payment of accrued benefits in the amount in excess of $11,816.00. Both the United States Court of Appeals for Veterans' Claims (Veterans' Court) and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have repeatedly affirmed VA denials of accrued-benefits claims by persons other than those listed in the statute and regulation. See Youngman v. Shinseki, 699 F.3d 1301, 1303-4 (Fed. Cir. 2012) (denying accrued benefits to a deceased veteran's fiduciary for distribution to the veteran's heirs); Pelea v. Nicholson, 497 F.3d 1290, 1291-92 (Fed. Cir. 2007) (denying accrued benefits to deceased claimant's estate); Richard v. West, 161 F.3d 719, 721-23 (Fed. Cir. 1998) (denying accrued benefits to a deceased veteran's brother); Wilkes v. Principi, 16 Vet. App. 237, 242 (2002) (denying accrued benefits to a deceased veteran's nephew); Morris v. Shinseki, 26 Vet. App. 494 (2014) (status as deceased veteran's brother, which is not one of the categories of persons listed in section 5121(a), made appellant ineligible for accrued benefits due and unpaid). The Board acknowledges that the appellant acted in a responsible manner and took the appropriate and legal steps to obtain the lump sum payment involved herein. Ultimately, VA failed to issue a check for the lump sum of $21,196.00 within the approximately one-month window when the appellant's fiduciary status was known to VA and prior to the Veteran's death. Although the circumstances resulting in the delayed payment of pension benefits to the appellant are regrettable, the Board is bound by the applicable law and regulations as written. See 38 U.S.C.A. § 7104(c). Payment to the appellant as a surviving beneficiary and/or legal guardian/fiduciary is not authorized under 38 U.S.C.A. § 5121 as discussed above. Moreover, there is no other avenue pursuant to which the Board can legally award the appellant the payment of monies associated with death of the Veteran. In this regard, the evidence of record does not show that the appellant, herself, needs to be reimbursed in excess of $11,816.00 for the expense of the Veteran's last sickness and burial. For these reasons, the Board finds that the appellant's appeal must be denied as a matter of law. Notably, unlike the VA Secretary, the Board simply has no authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994); Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) (holding that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." ORDER Entitlement to accrued benefits in excess of $11, 816.00, to include reimbursement of expenses for the Veteran's last sickness and burial is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs