Citation Nr: 1803765 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-33 580A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to accrued benefits in excess of $5023. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active service from April 1942 to September 1945. He died in January 2011. The appellant is a surviving adult son. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 determination by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, which approved the appellant's claim for accrued benefits in the amount of $5023. The appellant testified at Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board at the St. Petersburg, Florida RO in August 2014. A transcript of his hearing has been associated with the record. In April 2015 the case was remanded for further development. In October 2017, the appellant was notified that the VLJ who conducted the August 2014 hearing is no longer employed by the Board; that he had a right request another Board hearing; and that if he did not respond within 30 days, the Board would assume that he did not desire another hearing. To date, the appellant has not responded. Accordingly, the Board assumes that he does not desire another hearing and will proceed to decide his appeal on the merits. FINDINGS OF FACT 1. The appellant is the adult son of the Veteran and bore the expense of the Veteran's funeral. 2. The appellant was separately granted $300 in VA burial benefits to be applied to reimbursement of funeral expenses. 3. The remainder of the funeral expenses borne by the appellant amounted to $5023. CONCLUSION OF LAW The criteria for entitlement to accrued benefits in excess of $5023 are not met. 38 U.S.C. §§ 101 (4)(A), 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000, 3.1003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the instant appeal because it turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error. II. Analysis The Veteran's wife, B.B., died in February 2005. In a November 2010 rating decision, the RO granted the Veteran non-service connected special monthly pension based on the need for aid and attendance effective May 4, 2010. In a November 8, 2010 notification letter, the RO noted that the Veteran was entitled to receive $1576 per month in benefits and that under controlling regulation, payment would begin the first day of the month following the effective date. However, the RO withheld the retroactive benefits due to the Veteran because it had proposed to find him incompetent to manage his VA pension benefits (See November 12, 2010 RO letter). The RO noted that it would issue payment of these benefits once a fiduciary had been appointed. In a November 16, 2010 letter, the Veteran reported that he agreed with the RO's proposal of incompetency and asked that the appellant, his adult son, be appointed as his fiduciary. In January 2011, the Veteran passed away. His death occurred prior to any appointment of a fiduciary by VA or release by the RO of monthly non-service connected pension benefits that had accrued. In February 2011, the appellant filed a claim for accrued benefits. The appellant also filed a claim for VA burial benefits. In conjunction with these claims he submitted two bills pertaining to the Veteran's funeral costs, one in the amount of $4024 and the other in the amount of $1299. Thus, these bills indicate that the total amount of the Veteran's funeral costs borne by the appellant was $5,323. The appellant noted that the Veteran had designated him as his fiduciary in November 2010 and that therefore, he should be paid any VA benefits that were due to the Veteran at the time of his death. In June 2011, the RO awarded VA burial benefits to the appellant in the amount of $600, $300 for funeral costs and $300 for cemetery/plot costs. Also in June 2011, the RO awarded the appellant accrued benefits in the amount of $5023. The RO noted that VA owed the Veteran several monthly payments at the time he passed away. The RO also noted that the $5023 being paid to the appellant amounted to part of the total amount that had been owed to the Veteran, based on reimbursement of the funeral expenses amounting to $5,323 minus the $300 that had already been awarded to the appellant for funeral expenses (as part of the VA burial benefits award). Periodic monetary benefits to which a VA beneficiary was entitled at death, either by reason of existing VA ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Upon the death of a veteran receiving VA benefits, accrued benefits are paid to his or her spouse; his or her children (in equal shares); or his or her dependent parents (in equal shares) or the surviving parent. 38 C.F.R. § 3.1000(a)(1). Upon the death of a surviving spouse receiving VA benefits, accrued benefits are paid to the veteran's children. 38 C.F.R. § 3.1000(a)(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 last sickness or burial. 38 C.F.R. § 3.1000(a)(5). In this case, the evidence does show the presence of accrued benefits in the form of the monthly non-service connected pension benefits that were not paid to the Veteran prior to his death. However, the evidence does not show that the appellant is entitled to any accrued benefits as the "child" of the Veteran. In this regard, the appellant is the son of the Veteran and his deceased spouse. However, "child of the veteran" for purposes of receipt of accrued benefits means 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. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. The appellant is well past the age of 18, and the record does not show, nor does she appellant contend, that he became permanently incapable of self-support before the age of 18. Consequently, the appellant is not entitled to receive accrued benefits based on him being a "child" of the Veteran. 38 C.F.R. § 3.1000(a)(1), (2). Thus, the only avenue for the appellant to potentially receive accrued benefits is under 38 U.S.C. § 5121(a)(6), which once again provides that "[i]n 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." See also 38 C.F.R. § 3.1000(a)(5). In this case, the appellant has shown that he bore the expense of the Veteran's funeral (i.e. burial). However, the RO has already reimbursed the appellant for these reported funeral expenses through the $300 in VA burial benefits paid to him for funeral expenses and the $5023 in accrued benefits paid to him for funeral expenses. The appellant has not reported any additional funeral expenses nor has he demonstrated that he bore any separate expenses in relation to the Veteran's "last sickness." Consequently, the Board has no basis for awarding him any accrued benefits beyond the $5023, which he has already received. At the August 2014 Board hearing, the appellant testified that he is himself a 100 percent disabled Veteran. He also testified that he took care of the Veteran for a long period before he died and that he incurred a great deal of expenses on behalf of the Veteran during this period. Additionally, in other statements, he has essentially asserted that he should have been entitled to receive the full amount of the benefits accrued in this case from the withheld monthly non-service connected pension payments as the Veteran had clearly determined that he wanted the appellant to be his fiduciary. The Board empathizes with the appellant's position as it is clear he made tremendous efforts to take care of the Veteran and that the Veteran had determined that he wanted the appellant to be his fiduciary. However, the Board is bound to follow the controlling regulations. As noted, these regulations only allow for accrued benefits to be paid to the appellant, an adult son who does not meet the definition of a "child of the Veteran", up to the level necessary to reimburse him, for the expense of the Veteran's last sickness and burial. As the evidence indicates that the appellant has already been paid benefits up to this level (i.e. accrued benefits of $5023), the Board has no legal basis upon which to order an award of any additional accrued benefits. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to accrued benefits in excess of $5023 is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs