Citation Nr: 1757510 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-13 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1944 to March 1945. The Veteran died in May 1986. His surviving spouse (Spouse) died in August 2009. The appellant is the Veteran's son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appellant testified at a May 2017 hearing before the undersigned. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Spouse was awarded VA aid and attendance benefits in July 2009, retroactive to December 2008. 2. The Spouse died in August 2009. 3. The appellant was born in December 1954. 4. The appellant did not pay the Spouse's final medical expenses or burial expenses. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (a) (2012); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Evidence The Veteran served honorably and passed away in May 1986. A rating decision of July 2009 granted the Spouse aid and attendance effective December 2008, based on severe dementia requiring constant medical supervision. The Spouse then passed away in August 2009. The record does not show any money was paid to the Spouse based on the July 2009 rating decision. An October 2008 probate court order appointed a conservator for the Spouse as she was not competent to handle her own care or finances. A letter from a nursing home confirmed that the Spouse received care from November 2008 to July 2009, incurring costs of $43,876.15 all of which was paid before her death. Cancelled checks show that the nursing home was paid out of the Spouse's checking account, administered by the conservator. An itemized receipt from a funeral home showed total burial costs of $10,141.70. A prepaid funeral expense account paid $1,211.11. The remaining $8,930.59 was paid on two checks, each signed by the Spouse's conservator. The Spouse's only outstanding debt at the time of her death was a line of credit with a lien of $30,000 against her residence. At his May 2017 hearing the appellant acknowledged that he had not paid any money out-of-pocket for the Spouse's medical expenses or burial expenses. He explained that the conservator had arranged for a line of credit based on the Spouse's equity in her house and used that money to pay the Spouse's expenses. The appellant stated that he had purchased the house, paying off that line of credit debt. Although he stated that documentation of this transaction would be provided, it has not been added to the claims file. The appellant's application for accrued benefits lists his birthdate as December 1954. Law 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 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 was still under 18 at the time of the Veteran's death; or 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. §§ 3.57, 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). Analysis The appellant was born in December 1954 and turned 23 in December 1977. The Spouse did not pass away until August 2009. Therefore, based on his age, the appellant is not statutorily eligible to collect accrued benefits as a child. The only way the appellant could collect accrued benefits would be if he personally bore the expense of the Spouse's final medical expenses or burial expenses. The evidence does not show that this happened. The Spouse herself, or at least her estate, managed by the conservator, paid her medical expenses while she was still alive. Once she passed away, the estate paid for the burial expenses, through checks and a prepaid account. The appellant himself acknowledged that he paid nothing out-of-pocket to contribute to these expenses. At his May 2017 hearing the appellant stated that he had purchased the Spouse's residence from the estate and that he had to pay off the line of credit lien which had been incurred by the Spouse's estate to help pay for medical and burial expenses. The appellant stated that he would be able to provide documentation showing his purchase and payment of the outstanding lien; however this documentation has not been submitted. Ultimately, the lack of documentation is not the dispositive issue. The Board finds that even documentation confirming his purchase of the residence and payment of the related lien would not make the appellant eligible to receive accrued benefits. The statue allows payment only to a person who bore the expense of final medical expenses or burial expenses for the Veteran, or in this case, the Spouse. The evidence shows that the Spouse's estate paid these expenses, although in doing so it incurred a debt that remained outstanding at the time of the Spouse's death. The debt included a lien on the Spouse's residence. The appellant had no obligation to either pay that debt or purchase the house. Apparently he wished to purchase the house, and had to pay off the lien in order to have a clear title. This is no different from what any other purchaser would have needed to do in order to purchase the residence from the Spouse's estate. It is not a direct payment of the Spouses final medical or burial expenses and does not make the appellant eligible to receive accrued benefits ORDER Entitlement to accrued benefits is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs