Citation Nr: 1753382 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-07 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to accrued benefits for the purposes of reimbursement of expenses regarding the Veteran's surviving spouse. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from July 1944 to June 1946. He died in November 1995. The Appellant is the daughter of the Veteran's surviving spouse, who died in September 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 administrative denial of the appellant's claim for accrued benefits by the Regional Office and Insurance Center of the Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania. In December 2015, the Board remanded the claim for further development. FINDINGS OF FACT 1. The Veteran's surviving spouse was granted death pension in June 1996, effective July 1996; she died in September 2012. 2. The evidence does not show that the Appellant is an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age or an unmarried child over the age of 18 but not over 23 years of age who was pursuing a course of instruction at the time of the death of the Veteran's surviving spouse. 3. Expenses claimed for accrued benefits of the Veteran's surviving spouse are not shown to have been paid by the Appellant and have not been shown to be medical expenses for her last sickness or burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits for the purposes of reimbursement of expenses regarding the Veteran's surviving spouse have not been met. 38 U.S.C. § 5121(a)(6) (West 2012); 38 C.F.R. § 3.1000(a)(5) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). Here, VA awarded the Veteran special monthly pension benefits in February 1993. After his death, the Appellant's mother was granted a monthly pension as the Veteran's surviving spouse, effective July 1996. In February 2012, the Appellant filed a report, on behalf of the Veteran's surviving spouse, for recurring medical expenses for the year 2011. The Appellant subsequently submitted a partial Durable Power of Attorney that had been previously filed in Duplin County, North Carolina Register of Deeds in September 2011 reflecting that she had authorization to act on behalf of the Veteran's surviving spouse. The Veteran's surviving spouse passed away in September 2012. The AOJ denied the Appellant's application to be reimbursed for these expenses and she then filed a timely appeal to the Board. Except as otherwise provided, where death occurred on or after December 1, 1962, periodic monthly benefits (other than insurance and service member's indemnity) authorized under the laws administered by VA to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid as follows: upon the death of a surviving spouse or remarried surviving spouse, to the Veteran's children. 38 C.F.R. § 3.1000(a)(2). "Child" means an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age or an unmarried child over the age of 18 but not over 23 years of age who was pursuing a course of instruction at the time of the payee's death. 38 C.F.R. § 3.1000(d)(2). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of the last sickness or burial. 38 C.F.R. § 3.1000(a)(5). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In February 2016, pursuant to prior Board remand instructions, the Appellant was advised of the type of evidence necessary to submit to support her claim; however, she did not respond. Overall, the evidence does not establish the Appellant is a "child" of the Veteran for VA purposes. The evidence does not establish that the Appellant was unmarried, under 23 years of age, and pursuing a course of instruction; or an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age at the time of the death of the Veteran's surviving spouse. Accordingly, the Appellant is not considered the Veteran's "child" under 38 C.F.R. § 3.1000(d); and therefore, 38 C.F.R. § 3.1000(a)(5) applies. Under 38 C.F.R. § 3.1000(a)(5), only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of the last sickness or burial. 38 C.F.R. § 3.1000 (a)(5). Therefore, the only question at issue is whether any additional payments were made by the Appellant that were necessary expenses of either last sickness or burial. Unfortunately, no further amount is payable to the Appellant. With regard to burial expenses, although the Appellant indicated that reimbursement of medical expenses for 2011 and subsequently 2012 would help pay for her mother's funeral bill, she did not list any burial expenses on the claim application. See August 2013, Privacy Act Release Form. With regard to expenses of last sickness, VA's Adjudication Procedures Manual (VA Manual) M21-1, Part V.i.3.D.3.b., defines last sickness as the period from 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 sickness 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 claims file does not indicate that any medical bills were paid by the Appellant in relation to treatment for a prolonged illness or an acute attack, which resulted in the death of the Veteran's spouse. Regarding the 2011 medical expenses, on both the February 2012 VA Form 21-8416, "Medical Expense Report" and the October 2012 VA Form 21-609, "Application for Amounts due Estate of Person Entitled to Benefits", the Appellant reported that the expenses were paid by her mother, the Veteran's spouse. Therefore, the evidence shows that these expenses were not paid by the Appellant. Additionally, although the Appellant indicated that she would like to file a claim for the Appellant's medical expenses for the time period from January 2012 to August 2012, the evidence of record does not indicate that these expenses have either been paid by the Appellant (or the estate) or that they have been paid at all. See August 2013, Privacy Act Release Form. Under 38 C.F.R. § 3.1000(a)(5), the accrued benefits may only be paid to reimburse the person who bore the expense of the last sickness or burial. To the extent that the Appellant contends that such a payment should be made based upon equitable grounds, the Board is sympathetic to the claim; however, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In sum, the Appellant has not submitted evidence of payments made for the expense of the last sickness or burial. The criteria for payment of accrued benefits for the purpose of reimbursement for expenses regarding the Veteran's surviving spouse's last sickness and burial are accordingly not met. As the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. See Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to accrued benefits for the purposes of reimbursement of expenses regarding the Veteran's surviving spouse is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs