Citation Nr: 18142662 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-19 501 DATE: October 17, 2018 ORDER Entitlement to nonservice-connected burial benefits in excess of $300.00 is dismissed. Entitlement to accrued benefits in excess of $6,537.40 is denied. FINDINGS OF FACT 1. On the record at the June 2018 Board hearing, prior to promulgation of a decision, the appellant indicated that she elected to withdraw from appeal the issue entitlement to nonservice-connected burial benefits in excess of $300.00. 2. The appellant is the adult daughter of the deceased Veteran, and there is no evidence or argument that she became incapable of self-support prior to turning 18. 3. The appellant incurred $6,837.40 in expenses related to the Veteran’s last sickness and burial. 4. The appellant was awarded $300.00 in nonservice-connected burial benefits and $6,587.40 in accrued benefits. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the appellant as to the issue of entitlement to nonservice-connected burial benefits in excess of $300.00 have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for accrued benefits in excess of $6,537.40 have not been met. 38 U.S.C. § 5107, 5121; 38 C.F.R. 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1944 to December 1946. He died in June 2014. The appellant is his adult daughter. In June 2018, the appellant testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that proceeding is of record. I. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, on the record at the June 2018 Board hearing, prior to the promulgation of a decision, the appellant indicated that he elected to withdraw the issue of entitlement to nonservice-connected burial benefits in excess of $300.00 on appeal with the Board. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed. II. Accrued Benefits The appellant was awarded accrued benefits in the amount of $6,537.40. She has challenged the amount awarded, claiming more monies were due and owing to the Veteran at the time of his death. Persons eligible for accrued benefits are: (i) the spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. 3.1000(a). The term “child” is defined under 38 C.F.R. 3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction at the time of the payee's death. 38 C.F.R. 3.1000(d)(2). Here, the appellant was born in 1953. There is no evidence or argument indicating that the appellant has at any time pertinent to the present appeal qualified as a “child” as that term is defined for purposes of substitution benefits under 38 C.F.R. 3.1010. Indeed, at the time she filed a request for accrued benefits, she was over 18 years of age, and there is no evidence or argument she became incapable of self-support prior to age 18. Nevertheless, accrued benefits may also be paid to reimburse a person who bore the expenses of the last sickness and burial of a payee. 38 U.S.C. 5121(a)(5); 38 C.F.R. 3.1000(a)(5). Payments to persons who bore the expense of last sickness or burial shall be limited to the amount necessary to reimburse such persons for the expenses of last sickness and/or burial. 38 C.F.R. 3.1003(a). As such, although the appellant does not qualify as a child for accrued benefits purposes, she may recover accrued benefits as may be necessary to reimburse her for expenses she personally incurred in connection with the payee’s last sickness and burial. See 38 U.S.C. 5121(a)(6); 38 C.F.R. 3.1000(a)(5). The VA Adjudication Procedures Manual, M21-1MR (M21-1MIR) (Manual) contains provisions relative to the allowance of items of expense in connection with claim for reimbursement under 38 U.S.C. § 5121(a)(6). M21-1MR, Part VIII, Chapter 4, para. 12. The Manual specifically lists physician expenses, medicinal expenses, nursing expenses, and transportation expenses (incurred in transporting the body of the deceased beneficiary to the place of burial and for an attendant or escort to and from the place of burial). M21-1MR, Part VIII, Chapter 4, para. 1 2(b)-(e). The Manual provides that payment of accrued benefits, as reimbursement, is not limited to specific items or amounts; that consideration is to be given to all reasonable expenses incident to last illness and burial; and that only those charges which are clearly shown not to be related to the beneficiary’s last illness are to be disallowed. M21-1MR, Part VIII, Chapter 4, para. 12(a), (g). The Manual further provides that claims for reimbursement must generally be supported by bills; provided, however, that bills covering the cost of medicines are not required if the claimant alleges that the medicine was paid for in cash and it is apparent that the amount claimed is reasonable and consistent with the character and duration of the last illness. M21-1MR, Part VIII, Chapter 4, para. 12(c). While the term “last sickness” is not defined under VA law or regulations, a similar term is defined in the Manual. Under M21-1MR, Part V, Subpart 1, Chapter 3, Section D, para 15 b, the term “last illness” is defined as the period from the onset of the acute attack causing death up to the date of death. If death resulted from a lingering or prolonged illness instead of an acute attack, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person. Under relevant provisions, non-medical expenses should be excluded from reimbursement. Caranto v. Brown, 4 Vet. App. 516, 518 (1993). Further, 38 U.S.C. § 5121 places the burden on the claimant to produce the evidence necessary for VA to determine whether an award from substitution benefits may be properly made, and that it is within VA’s discretion to require an appellant to submit receipts to substantiate payment prior to granting a claimant's application. Id. at 519. In her application for accrued benefits, in Section III concerning debts and expenses of the last sickness and burial of the deceased beneficiary, the appellant listed no expenses and solely stated “no debts.” In her application for burial benefits, the appellant listed $6,837.40 in burial expenses that were incurred and paid by the decedent’s estate. A bill showing such expenses were paid was attached to the application for burial benefits. The appellant has not alleged any other expenses related to the Veteran’s burial or last sickness were incurred and paid. Ultimately, the appellant was awarded $300.00 in nonservice-connected burial benefits and $6,537.40 in accrued benefits. The appellant has asserted that there were additional amounts that were due and owing to the Veteran at the time of his death. While the appellant may be correct, 38 C.F.R. 3.1000(a)(5) provides that the appellant, as the adult daughter of the Veteran, is only eligible to receive accrued benefits in the amount necessary to reimburse the appellant for expenses incurred related to the Veteran’s last sickness and burial. Here, she has only alleged that she incurred $6,837.40 in burial expenses. She has not asserted that she incurred any expenses related to the Veteran’s last sickness. The appellant has been awarded $300.00 in nonservice-connected burial benefits and $6,537.40 in accrued benefits, totaling $6,837.40, the entire amount that the appellant has alleged that she incurred related to the Veteran’s last sickness and burial. As she has been awarded the entirety of the amount incurred related to the Veteran’s last sickness and burial, the claim for accrued benefits in excess of $6,537.40 must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel