Citation Nr: 1801057 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-26 641A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to accrued benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from November 1993 to November 1996. The Veteran passed away in November 2009. The Appellant is the Veteran's mother. This appeal arises before the Board of Veterans' Appeals (Board) from an August 2010 rating decision in which the Department of Veteran Affairs (VA) Montgomery, Alabama, Regional Office (RO) denied entitlement to accrued amounts due a deceased beneficiary. In September 2017, the Appellant testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran passed in November 2009, and is survived by a spouse, children, his father, and his mother, the Appellant. 2. The record does not indicate that the Appellant was a dependent parent of the Veteran at the time of his death. 3. The evidence of record does not indicate that the Appellant paid expenses for the Veteran's last illness or burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, and which were due and unpaid at the time of death. See 38 U.S.C. § 5121(a) (2012); 38 C.F.R. § 3.1000(a) (2017). 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. § 5121(a)(2) (2012); 38 C.F.R. § 3.1000(a)(1) (2017). An eligible recipient may be paid periodic monetary benefits to which a veteran was entitled at the time of his or her death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when he or she died. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). 38 U.S.C. § 5121 sets forth an exclusive list of living persons who are eligible for payment of accrued benefits upon the veteran's death, as follows: (A) the veteran's spouse; (B) to the veteran's children (in equal shares); and (C) the veteran's dependent parents (in equal shares). In addition, pursuant to this statute, upon the death of a surviving spouse, or remarried surviving spouse, the funds go to the children of the deceased veteran. Further, upon the death of a child, the benefits go to the surviving children of the veteran who are entitled to death compensation, dependency and indemnity compensation, or death pension. 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. § 5121(a)(1-5) (2012); 38 C.F.R. § 3.1000(a) (2017). The Appellant asserts that accrued VA nonservice-connected pension benefits were due and owed to the Veteran at the time of his death, and due to the previously documented desires of the Veteran, and the pending approval as fiduciary of the Veteran's payments, the accrued benefits should be distributed to the Appellant. The Veteran died in November 2009. Prior to the time of death, in a September 2009 rating decision, the Veteran had been awarded nonservice-connected pension benefits and special monthly pension based on the need for aid and attendance. The award was to be effective from August 28, 2009. There was also a pending proposal of a finding of incompetency. Funds were withheld pending approval of a fiduciary. In an October 2009 Statement of Support of Claim, the Veteran stated that he agreed to a need for a guardian. The Veteran asked that his mother, the Appellant, be appointed as guardian because his spouse was in college and caring for their children. The Veteran sent an affidavit signed by his mark and witnessed by the Appellant and his wife stating that the statement was, to the best of his knowledge, true and correct. Prior to a final decision of a finding of incompetency, the Veteran passed. In a January 2010 Application for Reimbursement From Accrued Benefits Due a Deceased Veteran, the Appellant stated that she was applying for the two months of benefits for which the Veteran was approved, stating that she had to quit her job to care for the Veteran. In an October 2011 VA Form 9 statement, the Appellant stated that it was the Veteran and his wife's wishes that she be paid the aid and attendance monies that the Veteran was awarded but never received due to his death because she quit her job to care for the Veteran during his terminal illness and because his wife was unable to care for him due to attending school and raising three children. The Appellant explained that she cared for the Veteran's daily living activities around the clock for over a year. The Appellant noted that none of the awarded money was paid out to the Veteran. In a September 2017 Board Hearing, the Appellant stated that, during his last year, the Veteran resided with her and her husband so that she could care for him during his terminal illness. The Appellant reported that she was responsible for 100 percent of his care for over a year, including feeding him and bathing him. The Appellant reported that the Veteran and his wife agreed that the Appellant would be named beneficiary because she was his caregiver while his wife was in school and raising their kids. The Appellant further reported that the Veteran's surviving wife waived her right to any accrued benefits claim because she knew the Veteran had asked to stay with the Appellant. The Appellant noted that, though the Veteran was awarded aid and attendance effective August 28, 2009, no money was ever paid out. The Appellant's representative noted that no funeral expenses were paid by the Appellant because the Veteran sold his house in order to prepare funeral expenses. As an initial matter, the Board notes that, to the extent that the Appellant has claimed entitlement to a benefit in addition to the reimbursement for expenses of last sickness and burial, the appellant does not fall within the statutorily enumerated category of people eligible to receive benefits. Significantly, for purposes of 38 U.S.C. § 5121, dependency of a parent is held to exist if the father or mother of the veteran does not have an income sufficient to provide reasonable maintenance for such father or mother and members of his or her family under legal age and for dependent adult members of the family if the dependency of such adult member results from mental or physical incapacity. See 38 C.F.R. §§ 3.250, 3.1000 (2017). The Appellant has not claimed nor has the record shown that the Appellant was dependent at the time of the Veteran's death. Also, though the evidence of record indicates that it was the Veteran's intent that the Appellant receive payments as his named fiduciary, applicable law does not include fiduciaries, estates, or executors of estates among the persons eligible to receive accrued benefits. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit have repeatedly affirmed that accrued-benefits claims by persons other than those listed in section 5121(a) are not viable as a matter of law. See, e.g., Morris v. Shinseki, 26 Vet. App. 494, 499-500 (2014) (holding, in the context of accrued benefits, that veteran's brother and fiduciary was not an eligible claimant); Youngman, 699 F.3d at 1303-04 (denying accrued benefits to a deceased veteran's fiduciary for distribution to the veteran's "heirs"). Moreover, the evidence of record indicates that a superior beneficiary, the Veteran's surviving spouse, is alive. The waiver of rights to accrued benefits by a superior beneficiary does not vest the right to a subordinate member. See 38 C.F.R. § 3.1010(f)(4) (2017). Because special monthly pension for aid and attendance falls under the periodic monetary benefits due the Veteran, the criteria for qualifying beneficiaries are applicable. Thus, the Appellant is not eligible for these payments. Regarding the claim for reimbursement for last sickness and burial, the Board must first determine whether the Appellant was entitled to monetary benefits from the claim pending at the time of her death. While the evidence indicates that the Appellant lost income due to quitting her job to care for the Veteran, there is no indication of specific amounts of out-of-pocket expenses used for the Veteran's last illness. Moreover, the record indicates that the Appellant did not pay burial expenses for the Veteran. Furthermore, as is the case for periodic payments due the Veteran, the record indicates that a member of a superior class, the Veteran's surviving spouse, per the governing laws, would precede the Appellant in any reimbursement for last illness or burial. Therefore, a grant of accrued benefits is not appropriate. Notably, unlike the VA Secretary, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994); 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."); but see 38 C.F.R. § 2.7 (2001); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Zimmick v. West, 11 Vet. App. 45, 50-51 (1998); Moffit, 10 Vet. App. at 225 (citing, inter alia, Darrow v. Derwinski, 2 Vet. App. 303, 304-06 (1992) (holding that section 503(a) authorizes Secretary to grant relief that is equitable in nature as distinct from Secretary's authority, exercised through Board, to determine entitlement to benefits under law))." See concurring opinion in Brown v. Principi, 16 Vet. App. 487, 489 (2002) (per curiam Order). Stated in other terms, the Board regrettably cannot provide equitable relief in this case. In so finding, the Board is extremely sympathetic to the circumstances resulting in the delayed payment of pension benefits to the Veteran and his care providers. However, the Board is bound by the applicable law and regulations as written. See 38 U.S.C. § 7104(c) (2012). Payment to the Appellant as a surviving beneficiary is unfortunately 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 the death of the Veteran. Instead, the Veteran's surviving spouse is entitled to the accrued benefits for nonservice-connected pension and special monthly pension based on the need for aid and attendance. The Board acknowledges the Appellant's statements that it was the Veteran and his wife's wishes that the benefits be paid to the Appellant. As such, the Board notes that the Veteran's surviving spouse is free to use or distribute the accrued benefits however she wishes. For these reasons, the Board finds that the Appellant's appeal must be denied as a matter of law. ORDER Accrued benefits are denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs