Citation Nr: 18141212 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-13 745 DATE: October 10, 2018 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. In August 2012, the Veteran’s surviving spouse filed for entitlement to nonservice-connected death pension; the Veteran’s surviving spouse died in March 2013, prior to adjudication of the claim by VA. 2. The appellant is not a surviving dependent of the Veteran and exceeded 23 years of age at the time of the death of the Veteran’s widow. 3. The appellant has not provided evidence he personally paid funeral expenses or last sickness expenses. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1942 to February 1946. The Veteran died in October 1995; the appellant is the son of the Veteran’s widow and reports that he is the executor of the estate of the Veteran’s widow. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this instance, adjudication of the appellant’s claim for accrued benefits turns partly on the law as applied to the undisputed facts about the Veteran’s surviving beneficiaries at the time of his surviving spouse’s death. As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the claim. However, with respect to the aspect of the claim dealing with reimbursement of expenses paid for last illness or burial, a February 2015 letter informed the appellant that he could be reimbursed for expenses he personally paid. Therefore, he was provided notice of the evidence needed to substantiate a claim for reimbursement of expenses out of any accrued benefits due the decedent, and he has not submitted any such evidence. Entitlement to accrued benefits The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The facts of this case are not in dispute. The Veteran’s surviving spouse applied for nonservice-connected death pension based on a need for aid and attendance in August 2012. At that time, the Veteran’s surviving spouse claimed monthly income of $1710.90 from Social Security and a Civil Service pension. In her application for death pension benefits, the Veteran’s surviving spouse claimed unreimbursed medical costs of $39,337.20 for assisted living care at [redacted] from June 2012 to May 2013. The Veteran’s surviving spouse died in March 2013 prior to adjudication of her claim by VA. In August 2013, the appellant filed an application, VA Form 21-601, seeking accrued benefits due to the decedent. In the application, the appellant reported that he was the son of the Veteran’s surviving spouse. In the appellant’s notice of disagreement and VA Form 9, the appellant has asserted that he is the executor of the surviving spouse’s will and that he is seeking accrued benefits on behalf of the estate, rather than himself. (While the appellant has submitted a power of attorney for the Veteran’s surviving spouse, documentation listing him as the executor of the surviving spouse’s will are not of record). Regardless, 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 v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012) (denying accrued benefits to a deceased veteran's fiduciary for distribution to the veteran's "heirs"); Pelea v. Nicholson, 497 F.3d 1290 (Fed. Cir. 2007) (denying accrued benefits to deceased claimant's "estate"). The Board finds that entitlement to accrued benefits are not warranted either based upon relationship or reimbursement in this case. 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. See 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). 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); 38 C.F.R. § 3.1000 (a)(1). Upon the death of a surviving spouse, accrued benefits are payable to the children of the deceased Veteran. 38 U.S.C. § 5121 (a)(2), (3); 38 C.F.R. § 3.1000 (a)(1), (2). For accrued benefits, the term “child” is defined, in pertinent part, as: [a]n 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 (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57 (a). See also 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.1000 (d)(2). In all other cases, accrued benefits may be paid only as necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121 (a)(5); 38 C.F.R. § 3.1000 (a)(4) (emphasis added). 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. Burris v. Principi, 15 Vet. App. 348, 352-53 (2001).   The provisions of the law are clear. Under the law, the appellant is not entitled to claim the accrued benefits owed his mother at the time of her death in his capacity as the Veteran’s child. The evidence does not show that anyone meeting the legal definition of “child” of the Veteran for accrued benefits purposes exists. Adult children capable of self-support, such as the appellant in this case, do not meet the legal definition of a “child.” See 38 C.F.R. § 3.1000 (a)(2), (d)(2). To be clear, the appellant has never contested his age or capacity for self-support and the fact that he was the surviving spouse’s power of attorney since 1991 demonstrates both. The only other category under which accrued benefits are payable is in the form of reimbursement to cover the costs of the last sickness or burial of the beneficiary. 38 C.F.R. § 3.1000 (a)(5). The Board notes that no accrued benefits have been paid as the appellant has not provided evidence he paid either costs of the last sickness or burial of the beneficiary. The RO informed him in 2015 that he could be reimbursed for any expenses he personally paid towards the surviving spouse’s last illness or funeral expenses, and his reply suggests that he although he ensured bills were paid as her power of attorney, he did not personally pay any of these costs. Although the surviving spouse had Alzheimer’s disease and clearly incurred substantial expenses from nursing home treatment, the appellant has submitted no evidence of costs that he personally paid for the Veteran’s widow’s last sickness or were made for necessary expenses of burial. To the extent that the appellant has argued that the Veteran’s surviving spouse would have received VA pension benefits if her claim had been processed faster, and that the evidence suggests that she would have warranted death pension benefits if her claim had been adjudicated prior to her death, the Board is sympathetic to the appellant’s claim. Under the law as it stands, however, the appellant is not entitled to receive accrued benefits, because he does not meet the legal requirements and the Board has no legal discretion in this matter.   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b). MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel