Citation Nr: 1751230 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 15-00 399A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to accrued benefits in excess of $308, to include reimbursement of the expense of last sickness or burial. REPRESENTATION Appellant represented by: Massachusettes Department of Veterans' Services ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to April 1970. He died in December 2005. His mother, D.A., was in receipt of parent's dependency and indemnity compensation (DIC); however, she died in January 2010. The appellant, who is the Veteran's sister and daughter of D.A., has filed a claim for accrued benefits for the reimbursement of expenses paid towards her mother's burial and her medical expenses a year prior to her death. She also made a claim for an additional reimbursement for her brother's funeral expenses. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2015 and October 2016, the Board remanded for further development. The RO recognized the appellant as the substitute claimant of the deceased Veteran's mother based on reimbursement. (See December 2015 Request for Substitution of Claimant upon Death of Claimant). The law, and not the evidence, is dispositive, additional factual development would have no bearing on the ultimate outcome. The statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation rather than consideration of the factual evidence. Accordingly, the VCAA can have no effect on this appeal. Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2016); 38 U.S.C.A. § 7107 (a)(2). FINDINGS OF FACT 1. The Veteran, son of D.A., died in December 2005. 2. In November 2009, D.A. filed a claim for special monthly compensation housebound status or permanent need for regular aid and attendance. [She already received parent's DIC]. 3. The decedent, D.A., died in January 2010. 4. At the time of her death, the decedent was survived by the appellant, her daughter. The appellant does not meet the statutory definition of a "child" as defined in 38 U.S.C.A. § 101 (4)(A). 5. A February 2011 rating decision granted D.A.'s claim for increased parent's DIC based on the need for aid attendance, for accrued benefits purposes. 6. The VA paid the appellant accrued benefits of $308.00 in recompense for accrued benefits claim. 7. The appellant has not provided evidence of expenses paid by her for the decedent's last sickness or burial and medical expenses. CONCLUSION OF LAW The criteria for entitlement to accrued benefits in excess of $308.00 are not met. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted above, the Veteran's and the appellant's mother, D.A., was receiving parent's DIC benefits. In November 2009, the mother, D.A., filed a claim for increased benefits based on the need for regular aid and attendance or by reason of being housebound. She died in January 2010, while her claim was still pending. In February 2010, the appellant filed a claim for accrued benefits and burial benefits for deceased mother and brother. In a February 2011 rating decision, the RO granted D.A.'s claim for increased parent's DIC based on the need for aid attendance, for accrued benefits purposes. The RO indicated that an increased rate had been established effective from November 27, 2009, (the date of the claim) to January 18, 2010 (the date of D.A.'s death). In February 2011, the RO awarded accrued benefits to the appellant in the amount of $308. The amount was calculated based on the difference in parent's DIC that D.A. was entitled to prior to her death. This appeal arises from the appellant's disagreement in the amount of accrued benefits that was awarded to her. Specifically, she disagrees with the fact that the RO did not consider the February 2010 medical expense report when calculating her mother's DIC benefits for accrued benefit purposes. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C.A. § 5121 (a); 38 C.F.R. § 3.1000 (a). Upon the death of a beneficiary, any accrued benefits are payable to his or her spouse, or to specific others if the spouse is not alive. 38 U.S.C.A. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). Upon the death of a surviving spouse, accrued benefits are payable to the children of the deceased Veteran. 38 U.S.C.A. § 5121 (a)(2), (3); 38 C.F.R. § 3.1000 (a)(1), (2). For accrued benefits, the term "child" is defined, in pertinent part, as: [a]n 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 or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, 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 educational institution approved by the Department of Veterans Affairs. 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). In all other cases, accrued benefits may be paid only as necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C.A. § 5121 (a)(5); 38 C.F.R. § 3.1000 (a)(4). In short, in order to be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. Burris v. Principi, 15 Vet. App. 348, 352-53 (2001). Here, the appellant is not eligible to receive the amount owed to her mother directly. Although the appellant is the beneficiary's daughter, the evidence does not indicate that she is a "child" as defined by the governing regulations, 38 C.F.R. § 3.1000 (d)(2) and 38 C.F.R. § 3.57. Rather, the appellant may be eligible for reimbursement of the expenses that she paid towards the last sickness or burial from any accrued benefits owed to her mother. See 38 C.F.R. §3.1000 (a)(5) (2015) (emphasis added). The appellant was paid $308 the amount of accrued benefits owed to the appellant's mother. As noted above, she was receiving parent's DIC benefits prior to her death. See 38 U.S.C.A. § 1310. The amount payable is reduced by an amount, as determined by the Secretary, based on the parents' annual income. 38 U.S.C.A. § 1315 (b). Basic entitlement exists if, among other things, the parents' income is not in excess of the applicable maximum benefit rate specified in 38 U.S.C.A. § 1315; 38 C.F.R. § 3.25. Payments of any kind from any source shall be counted as income for the calendar year in which received unless specifically excluded. 38 C.F.R. § 3.251 (b). Unreimbursed medical expenses (which were paid within the twelve month annualization period regardless of when incurred) are excluded from annual countable income to the extent that the amount paid exceeds 5 percent of the maximum annual rate payable. 38 C.F.R. § 3.262 (l). With regard to medical expenses of D.A., the appellant does not fall within the statutorily enumerated category of people eligible to receive benefits. Therefore, only so much of the accrued benefits may be paid as necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121 (a)(1-5); 38 C.F.R. § 3.1000 (a). Here, there is no evidence that the appellant personally paid for these expenses on behalf of her mother, D.A. With regard to burial expenses of D.A., the appellant submitted a statement from the funeral home for D.A.'s services in the amount of $10,927. (See itemized statement of the funeral and burial expenses). On the check, there was a notation that stated "prepaid funeral expenses." In another correspondence, the appellant stated that "although my name is on the check, I did not provide any personal financial contribution to my mother's funeral or burial." (See December 2015 Correspondence). Therefore, she is not entitled to reimbursement of any costs for burial of D.A. because she has not personally contributed to the funeral costs of her mother. With regard to burial expenses of her brother, the maximum of $2000 was paid to D.A. in May 2006. (See May 2006 letter to Mrs. [REDACTED] and the evidence does not show appellants personal financial contribution to his funeral. For these reasons, the Board finds that the appellant's appeal must be denied as a matter of law. Payment to the appellant as a surviving child is not authorized under 38 U.S.C. § 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 her mother. In so finding, the Board acknowledges that the circumstances resulting in the delayed submission of 2009 medical expenses is regrettable (the appellant has indicated that she was unable to leave her sick mother's side/and plan for burial); however, the Board is bound by the applicable law and regulations as written. See 38 U.S.C. § 7104 (c). Notably, unlike the VA Secretary, the Board simply has no authority to grant benefits on an equitable basis. 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"). Moreover, the Court has held that, since payment of government benefits must be authorized by statute, inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995). In summary, the legal authority governing this claim is clear and specific, and the Board is bound by such authority. As the authority pertaining to the appellant's claim of entitlement to accrued benefits, to include the matter of whether the appellant is entitled to exclusion of such unreimbursed medical expenses on an "accrued" basis, as well as the matters of the appellant's status as a child of the beneficiary and/or eligibility for reimbursement for payment of the debts and expenses of the last sickness and burial of the beneficiary, is dispositive, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to accrued benefits in excess of $308, to include reimbursement of the expense of last sickness or burial is denied. _________________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016). Department of Veterans Affairs