Citation Nr: 18139963 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-10 439 DATE: October 1, 2018 ORDER An increased amount of accrued benefits is denied. FINDING OF FACT The record does not show that the appellant bore any additional expenses of the surviving spouse’s last sickness and burial beyond those for which she has already been reimbursed. CONCLUSION OF LAW The criteria for entitlement to an increased amount of accrued benefits have not been met. 38 U.S.C. §§ 5107, 5121 (2014); 38 C.F.R. § 3.1000 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1942 to September 1945. He died in November 1973 and his surviving spouse, TRA, died in January 2013. The Appellant was TRA’s caregiver, as well as her niece, and bore some last sickness expenses. The appellant testified at a March 2017 Board videoconference hearing. The appellant submitted additional evidence in support of her appeal after the Board hearing. Even though she waived RO consideration of such evidence, the Board notes as her substantive appeal was received after February 2, 2013, a waiver is not necessary. 38 U.S.C. § 7105(e). Entitlement to an increased amount of accrued benefits. An April 2012 rating decision granted entitlement to entitlement to aid and attendance for TRA established effective October 27, 2011. A finding of incompetency was proposed. TRA was notified that benefits were being withheld and that once a fiduciary was appointed all retroactive funds would be released in June 2012. In August 2012, TRA was adjudged incompetent to handle disbursement of funds. At that time the Appellant requested appointment as fiduciary. TRA passed away in January 2013 without the retroactive funds from November 2011 and June 2012 having been released. Accrued benefits were paid to the appellant for the purpose of reimbursement of expenses of the appellant’s last sickness. An April 2014 notification letter shows that the Appellant submitted $75.00 in last sickness expenses and was awarded that amount. The Board notes that other billing statements submitted showed payment of last sickness and burial expenses by TRA and SL. The appellant contends that the full amount of retroactive funds/accrued benefits is due to her based on the mismanagement of the Philadelphia RO and failure to appoint her as fiduciary in a timely manner. Periodic monetary benefits under 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: In pertinent part, upon the death of a surviving spouse or remarried surviving spouse, to the Veteran’s children. 38 U.S.C. § 5121(a)(2),(3),(5) (2012); 38 C.F.R. § 3.1000(a),(2) (2018). With respect to accrued VA benefits, benefits are only paid to certain recipients rather than to the payee’s estate. In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of the last sickness and burial. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The record indicates that the appellant has already been reimbursed for all last sick expenses which have been submitted. She has not identified additional amounts paid toward TRA’s last sickness and burial other than the $75.00. The Board notes that a caregiver expense statement submitted simply shows TRA paid the appellant for home care services. While the appellant testified that the RO failed to release retroactive funds due to mismanagement, failure to conduct phone conversations, or associate mail with the claims file and submitted an Office of Inspection General (OIG) report detailing the mismanagement of the Philadelphia RO, the fact remains regardless of their action or inaction, there were no additional monetary amounts identified as an expense of last sickness or burial paid by the appellant. (Continued on the next page)   Consequently, the appellant’s claim for the award of the full amount of retroactive funds/accrued benefits, lacks legal merit as she has no entitlement under the law. She is not the “child” of the Veteran for purpose of receiving benefits and can only be awarded the amount necessary to reimburse her for the expenses of last sickness and burial. Accordingly, the appeal for an increased amount of accrued benefits is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (stating that where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel