Citation Nr: 1618798	
Decision Date: 05/10/16    Archive Date: 05/19/16

DOCKET NO.  13-32 627	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in White River Junction, Vermont


THE ISSUE

Entitlement to accrued benefits greater than $1,266.15.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel



INTRODUCTION

The Veteran had active military service from August 1945 to March 1947 and died in January 2012.  

The appellant, who is the Veteran's daughter, appealed a February 2013 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont, awarding her $1266.15 in accrued benefits.

In February 2014, the appellant testified during a hearing before the undersigned that was conducted by video conference.  A transcript of the hearing is of record.

The issues were last before the Board in November 2015.  The Board finds that there has been substantial compliance with the directives of this latest Remand decision, as the appellant has submitted additional receipts, bills, and statements regarding her payment of last expenses.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  That development having been completed, the claim is now ready for appellate review.



FINDINGS OF FACT

1.  The Veteran was granted nonservice-connected disability pension benefits with aid and attendance based on his lack of income in a January 2012 rating decision, but he died before benefits were paid, resulting in due but unpaid benefits of $13,211.
 
2. The appellant was over 23 years of age at the time of the death of the payee and she did not become incapable of self-support before the age of 18.
 
3.  The appellant paid last expenses for the Veteran of which she was previously paid $1,266.15, from his accrued benefits.
 
4.  She paid additional last expenses in excess of the remaining $11,944.85, in accrued benefits stemming from the last illness of her father.



CONCLUSION OF LAW

The appellant is entitled to additional accrued benefits in the amount of $11,944.85 for reimbursement of expenses incurred in connection with her father's last illness.  38 U.S.C.A. §§ 101, 5103, 5103A, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.57, 3.102, 3.159, 3.1000 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  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, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a claimant and his (or her) representative, if any, of any information, any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice should inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

A December 2012 letter advised the appellant of the evidence and information necessary to substantiate a claim for accrued benefits.  In this regard, such letter informed the appellant that she may be entitled to accrued benefits if benefits were due to the Veteran based on existing ratings, decisions, or evidence in VA's possession at the time of death, but were not paid, and she was the surviving spouse, child, or dependent parent of the Veteran.  The December 2012 letter further informed the appellant that accrued benefits may also be paid for reimbursement of expenses paid in connection with an individual's last illness or burial.  Such letter also advised her of her and VA's respective responsibilities in obtaining such evidence and information as well as the information and evidence necessary to establish an effective date, in compliance with Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006).  This letter was provided to the Veteran prior to the initial adjudication of her claim in a February 2013 rating decision, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Thus, the duty to notify has been satisfied.

In November 2015 the Board remanded this claim for additional development.  The Board is satisfied that there has been substantial compliance with the prior remand.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the Veteran the right to substantial, but not strict, compliance with that order).  In this respect, in response to the November 2015 remand, the appellant has submitted what she has characterized as a complete list of all expenses she personally incurred in connection with her father's last illness, together with copies of corresponding receipts.  She has not identified any additional, outstanding records that need to be requested or obtained.  Thereafter, a supplemental statement of the case (SSOC) was issued in January 2016.  

In addition, the appellant was afforded a VA hearing and provided relevant testimony before the undersigned in February 2014.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the undersigned Veterans Law Judge identified the issue on appeal and solicited the appellant to identify evidence relevant to the claim.  The appellant provided detailed testimony regarding the expenses she personally incurred in connection with her father's last illness, which is the issue upon which this case turns.  The discussion at hearing did not reveal the existence of any additional, outstanding evidence that needed to be requested or obtained.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2).  Therefore, the Board finds that VA's duty to assist has been satisfied.


II.  Accrued Benefits

In August 2011, VA received a claim for non-service connected disability pension benefits with aid and attendance for the Veteran.  In January 2012, the RO granted the claim, effective from May 1, 2011, because the Veteran did not have any income since April 1, 2011.  Unfortunately, the Veteran died on January [redacted] 2012, prior to any payments being received.  At the time of his death, VA owed the Veteran $13,211, in pension benefits.  A check was issued for this amount, but was returned following the Veteran's demise.  See 38 C.F.R. 3.1003 ("Where the payee of a check for benefits has died prior to negotiating the check, the check shall be returned to the issuing office and cancelled.")

In February 2012, the appellant, who is the daughter of the Veteran, submitted a claim of entitlement to accrued benefits.  The application indicated that the appellant was born in 1961.  In February 2013, the RO determined that the appellant was entitled to $1,094.33 for funeral and burial expenses she had paid, and an additional $171.82, for last payments made on the Veteran's behalf at the time of his death.  The appellant submitted an NOD in March 2013, claiming that she was due a greater amount.


Applicable Laws

Under governing law, upon the death of a Veteran's surviving spouse, periodic monetary benefits to which the individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (referred to as "accrued benefits"), and due and unpaid, shall be paid to the Veteran's "children."  38 U.S.C.A. § 5121(a)(3); 38 C.F.R. § 3.1000(a)(2).  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).

Facts & Analysis

The appellant does not allege, and the evidence does not in any way suggest, that she has at any time pertinent to the present appeal qualified as a "child" of the Veteran, as that term is defined for purposes of accrued benefits.  See 38 C.F.R. § 3.57(a); see also 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.1000(d)(2).  To the contrary, the evidence shows that she has at all times relevant to this appeal been more than 23 years of age (inasmuch as her birth certificate shows that she was born in 1961).  Moreover, there is nothing in the record to even remotely suggest that she became permanently incapable of self-support prior to age 18.  Accordingly, 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 her father's last sickness and burial.  38 U.S.C.A. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5) (emphasis added).

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) (emphasis in original.) 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).  Furthermore, the Manual provides that in the case of last illness expenses being paid by an account held jointly by the claimant and the decedent, funds dispersed from such an account are to be considered the personal funds of the claimant.  M21-1MR, Part VIII, Chapter 4, para. 16.  

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.

In the present case, the evidence shows that the appellant submitted a VA Form 21-601 (Application for Accrued Amounts Due a Deceased Beneficiary) in February 2012.  She listed a total of $37,088.14 paid to the Vermont Veterans Home (Home), where the Veteran was a resident.  

During her Board hearing, and in written statements in support of her claim, the appellant reported that she had cared for the Veteran since 1997 and paid the Home $39,000 of its $41,000 bill that was for his last illness.  See Board hearing transcript.  She stated that his entire residency in the Home was part of his last illness.  Id.  

The precise duration of the Veteran's "final illness" is not clearly delineated.  The term "last illness" means 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.  M21-1MR, Part V, Subpart I, Ch. 3, Sec. D, Para. 15 (Dec. 13, 2005).

The Veteran's Certificate of Death lists pneumonia with an onset of two days as his immediate cause of death, due to COPD with an onset of "years."  The available medical evidence reflects the Veteran's long history of COPD.  See November 2006 Southwestern Vermont Medical Center ("longstanding steroid dependence chronic obstructive pulmonary disease.")  In addition, in her testimony and statements, the appellant has consistently indicated that her father was "completely dependent" for healthcare and daily assistance following her mother's October 2010 passing.  Accordingly, because COPD is also listed on the death certificate as a cause of her father's death, the Board will liberally construe the parameters of her father's "final illness," and consider the entirety of all receipts submitted by the appellant in support of her claim, the earliest of which is dated in 2010.

In this case, the appellant has submitted numerous medical invoices, copies of checks, and ledger receipts reflecting payment of the Veteran's medical bills and assistance care since 2010.  Included in these proofs are copies of checks submitted as proofs of payment to the State of Vermont Veterans' Home (Home) where the Veteran resided since 2011.  The appellant submitted checks made out from a joint account between her, the Veteran and the Veteran's wife, who was deceased at the time of issuance in November 2011.  Significantly, the appellant submitted a copy of a $13,146.88 John Hancock Redemption Check, dated November 29, 2011, which lists both the appellant and her father as the payees.  The number of this redemption check is listed on a December 2011 receipt of payment for "room and board" for the Veteran, reflecting his around the clock care at the Home.  

Because the appellant was a joint account holder, the expenses are considered to have been paid by her.  M21-1, Part IV, Feb. 6, 2004, Change 190.  The Board concludes that the appellant personally paid for the Veteran's care prior to his death.  This conclusion is clearly demonstrated by the December 2011 receipt for "room and board." paid to the Home for around-the-clock healthcare and lodging.  The Board finds that an individual discussion of each remaining invoice is rendered moot by this finding as the amount of $13,146.88 exceeds the remaining accrued benefits corpus.  Therefore, the appellant is entitled to the full amount of outstanding accrued benefits, $11,944.85.


ORDER

Entitlement to additional accrued benefits in the amount of $11,944.85, is granted.


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs