Citation Nr: 1754470 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-35 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and witness ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1941 to September 1945. The Veteran died in October 1968; the appellant is his adult daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the Board in November 2016. FINDINGS OF FACT 1. In a January 2011 decision, the Veteran's spouse was awarded death pension benefits with aid and attendance benefits on account of being housebound; however, the payment of retroactive benefits from April 2010 to February 2011 was delayed pending the appointment of a fiduciary. 2. The Veteran's spouse died prior to the appointment of a fiduciary, and prior to full payment of the benefits awarded. 3. The appellant is over the age of 23 and is not shown to have been rendered permanently incapable of self-support before reaching the age of 18. CONCLUSION OF LAW The appellant is not a valid claimant for accrued benefits. 38 U.S.C.A. § 1542 2012); 38 C.F.R. § 3.24, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of such individual be paid as follows: Upon the death of a Veteran to the living person first listed below: (A) The Veteran's spouse; (B) The Veteran's children (in equal shares); (C) The Veteran's dependent parents (in equal shares). Upon the death of a widow or remarried surviving spouse, to the children of the deceased veteran. 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 and burial. 38 U.S.C.A. § 5121 (a)(2), (3), (5); 38 C.F.R. § 3.1000 (a), (2). The term "child" is defined, for purposes of veterans' benefits, as an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or 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 approved educational institution. 38 U.S.C.A. § 101 (4)(A); 38 C.F.R. § 3.57. In order to be eligible for accrued benefits, therefore, 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 a 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C.A. § 101 (4)(A), which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18). "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)(5). In this case, prior to her death in May 2011, the Veteran's widow had been awarded death pension benefits with aid and attendance and, at the time of her death, there was a pending determination as to whether she was competent to handle funds disbursed by the VA. While her benefit payments had begun in February 2011, a retroactive payment dating from April 2010 to February 2011 had been withheld until a competency decision could be made. Unfortunately, the Veteran's widow passed away prior to this final competency decision. The current appellant, the Veteran's daughter, filed a timely application for accrued benefits in January 2012. In February 2012, she was awarded funeral expenses that she had paid following her mother's death. However, the appellant was denied entitlement to accrued benefits because she did not qualify as a child for the purpose of VA benefits. Significantly, the record does not show that prior to reaching the age of 18 years, the appellant became permanently incapable of self-support. Given that the appellant is older than 23, she does not otherwise qualify for accrued benefits under the governing rules and regulations. The Board is thankful for the Veteran's service to his country. However, in the instant case, the appellant is precluded from receiving accrued benefits by law. Therefore, the claim must be denied. ORDER Accrued benefits are denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs