Citation Nr: 1805458 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 08-11 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to reimbursement of burial expenses, for accrued benefits purposes. ORDER Reimbursement of burial expenses, for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The Veteran died in May 2006. The appellant is his daughter. 2. The appellant is neither a "child" for accrued benefits purposes, nor "the person who bore the expense of last sickness." CONCLUSION OF LAW The criteria for reimbursement of burial expenses, for accrued benefits purposes, were not met. 38 U.S.C. §§ 2302, 2303, 5121 (2012); 38 C.F.R. §§ 3.1000, 3.1700-3 .1713 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marines Corps from March 1967 to June 1969. The Veteran died in May 2006, and the appellant is his surviving daughter. Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service. The Veteran was clearly a credit to the Marine Corps and to his family, and his service to his country is greatly appreciated. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This matter was previously before the Board in March 2012 and February 2017, when it was remanded for further development. In the March 2012 remand, the Board established that the appellant was not a "child" for the purposes of determining eligibility for VA accrued benefits purposes. It determined that the "appellant's only avenue for eligibility for accrued benefits would be if she bore the expense of the Veteran's last sickness or burial." It remanded the matter for the RO to request and obtain "any and all information as to who bore the expense of the Veteran's final sickness and burial." The Board has re-characterized the issue on appeal accordingly, as reflected above. ACCRUED BENEFITS The Veteran died in May 2006, and the appellant is claiming entitlement to VA burial benefits as his executor or administrator; she is the Veteran's surviving daughter. Accrued benefits are those benefits to which the Veteran was entitled at the time of his or her death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). Such payments may be made, in order, to the Veteran's surviving spouse, his children in equal shares, or his dependent parents in equal shares. 38 C.F.R. § 3.1000 (a)(1)-(4). In all other cases, only so much of accrued benefits may be paid as may be necessary to reimburse the person who bore the expenses of last sickness or burial. 38 C.F.R. § 3.1000 (a)(5). In short, in order to be eligible for accrued benefits, 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). The Court has held that a "child" for accrued-benefits purposes is defined by 38 U.S.C. § 101 (4)(A). See Burris, 15 Vet.App. at 352. The definition of "child" is expressly defined in 38 U.S.C. § 101 (4)(A) as a person who is unmarried and (1) under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3) under the age of 23 and pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57; Burris, 15 Vet. App. at 352-53; Nolan v. Richardson, 20 Vet. App. 340 (2006). The threshold question in any claim for VA benefits is whether status as an eligible claimant has been established. See Hayes v. Brown, 7 Vet. App. 420 (1995). A review of the record shows that there is no birth certificate of record for the appellant. However, of record is an October 1978 Judgment of Divorce from the Veteran's marriage to his first wife, the appellant's mother. A review of the Judgment of Divorce shows that in 1978, full custody of the appellant was awarded to the appellant's mother. As the appellant was alive in 1978, the Board finds it impossible that she is under 18 or even between the ages of 18 and 23. Additionally, there is no evidence of record that the appellant is a helpless child, let alone evidence that she was adjudged as such prior to her 18th birthday. After careful review, the Board finds that the appellant is not eligible to receive accrued benefits. The appellant does not contend that she is under the age of 18, that she became permanently incapable of self-support before the age of 18, or that she is under the age of 23 and is pursuing a course of instruction at an educational institution. Rather, the appellant was at least 28 years old when she submitted her claim. Thus, the appellant cannot be deemed an eligible survivor because she does not meet the statutory definition of "child" under 38 U.S.C. § 101 (4)(A) to be eligible for the payment of accrued benefits. The appellant is not claiming, and the record does not show, that she paid the Veteran's burial and funeral expenses. Instead, in a March 2017 statement, the appellant related that she did not pay the Veteran's burial expenses and that her grandmother (the Veteran's mother) paid them. The appellant added that she was not the fiduciary for her grandmother (the Veteran's mother). Thus, the appellant is not the "person who bore the expense of last sickness and burial." See 38 C.F.R. § 3.1000 (a)(5). In summary, the Board finds as a matter of law that the appellant is not entitled to accrued benefits as the Veteran's child. The Board also finds as a matter of law that the estate itself is not an eligible claimant. Consequently, the appellant's claim of entitlement to accrued benefits, to the extent it is based on any of those grounds, must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). The Board further concludes, based on findings of fact, that the appellant is neither a "child" for accrued benefits purposes, nor "the person who bore the expense of last sickness." Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appellant's claim of entitlement to accrued benefits is denied. The Board acknowledges the Veteran's honorable military service and is sympathetic to the loss his family has suffered. But, here, the Board is bound by the laws passed by Congress. No equities, no matter how compelling, can create a right to payment that has not been provided for by law. See Smith v. Derwinski, 2 Vet. App. 429 (1992). ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: The American Legion Department of Veterans Affairs