Citation Nr: 1753020 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-10 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to accrued benefits for reimbursement for the expenses of the Veteran's last sickness. REPRESENTATION Appellant represented by: Vermont Office of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and sister ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1942 to November 1945. The Veteran died on February [REDACTED], 2011, and the appellant is his daughter. At the time of the Veteran's death, a claim of entitlement to nonservice-connected pension based on a need for aid and attendance was pending. Following the Veteran's death, the appellant applied for accrued benefits, which was accepted as a claim to be substituted as the claimant, and that status was granted pursuant to 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (e) (2017). Accordingly, the appellant has been substituted as the claimant for the purposes of all pertinent claims that were pending at the date of the Veteran's death. This matter came before the Board of Veterans' Appeals (Board) from a decision letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The case was certified to the Board by the RO in White River Junction, Vermont. The appellant testified before the undersigned Veterans Law Judge during an August 2013 videoconference hearing; a transcript is of record. The Board previously remanded this case for additional development in March 2015. The case has been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon the death of a veteran, specific regulations govern the disbursement of accrued VA benefits. VA law provides that accrued benefits are payable, in descending order, to the Veteran's spouse; or, to the Veteran's children (in equal shares); or, to the Veteran's dependent parents (in equal shares); or to the person who bore the expense of the last sickness or burial of the payee, but only as much as necessary for reimbursement of such expenses. 38 U.S.C. § 5121 (a) (2012); 38 C.F.R. § 3.1000 (a) (2017). The Veteran filed a claim for non service-connected pension in November 2009 and his claim was subsequently granted. The appellant seeks reimbursement of the expenses of the last sickness of the Veteran. She has been paid pertinent burial benefits which it was shown she had paid. While the term "last sickness" is not defined under VA law or regulations, a similar term is defined in the VA Adjudication Procedure Manual (M21-1MR). 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 evidence of record demonstrates that the Veteran had right hip fracture in April 2008, and since then, his health deteriorated. He passed away in February 2011. The appellant filed her claim in February 2011 and had a videoconference hearing in August 2013 on this matter. The Board subsequently remanded the appeal for further development, directing the AOJ to notify the appellant what documents to be submitted in accordance with the proper understanding of the term "last illness" as stated above. The appellant submitted spreadsheets of the home care expenses as well as for the health insurance payment during the relevant period. In addition, the appellant submitted a bank statement dated December 2008 showing that both the Veteran's and appellant names are associated with a checking account, from which checks have been written out to pay medical expenses. The appellant also submitted copies of canceled checks written to home care givers and all those checks have signatures from both the Veteran and the appellant. Under the law summarized above, the appellant is entitled to reimbursement of expenses she paid for the last illness of the deceased Veteran. As such, the VA needs to know whether the Veteran's assets were depleted prior to his death and whether the appellant put money in the joint account to pay some of the expenses of the last illness. Any documentation showing that the appellant contributed to the joint account could then be taken as evidence that she paid some of the expenses. Accordingly, the case is REMANDED for the following action: 1. Notify the appellant that she needs to submit a documentation demonstrating that the Veteran's assets had been depleted prior to his death and any available documentation that she had contributed to the joint checking account by depositing her own money in the account. 2. After the appellant has been given sufficient notice and time concerning the evidence requested in this remand, the AOJ should readjudicate the claim on appeal. If the decision is adverse to the appellant, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).