Citation Nr: 18147225
Decision Date: 11/02/18	Archive Date: 11/02/18

DOCKET NO. 15-01 131
DATE:	November 2, 2018
ORDER
Entitlement to accrued benefits is denied.
FINDING OF FACT
The appellant is not the surviving spouse’s “child” within the statutory definition of that term for VA purposes; he has not provided proof that he bore the cost of the surviving spouse’s final illness and burial.
CONCLUSION OF LAW
The criteria for a grant of accrued benefits have not been met.  38 U.S.C. §§ 101, 5107, 5121; 38 C.F.R. §§ 3.57, 3.102, 3.1000.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1945 to April 1946, with an additional 9 months and 4 days of unconfirmed active service.  The Veteran died in December 1993.  The Veteran’s surviving spouse died in May 2011.  The appellant is the Veteran’s and surviving spouse’s adult son.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 decision letter issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin.
As a matter of background, this claim came before the Board in May 2018 at which time it was remanded for further development.
1. Entitlement to accrued benefits
The appellant seeks accrued benefits which were owed to his mother, the surviving spouse, at the time of her death.  The Board finds that the claim must be denied.  
The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a beneficiary, be paid to the living person first listed below: (A) the beneficiary’s spouse; (B) the beneficiary’s children (in equal shares); (C) the beneficiary’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000 (a).  In 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. 38 U.S.C. § 5121(a)(6).
The definition of “children” in section 5121 is not the commonly understood definition, but rather, “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 v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006).  
The facts of this case are not in dispute.  The surviving spouse filed a claim for survivor’s pension benefits prior to her death.  That claim was granted in a May 10, 2011, letter with an effective date of April 30, 2010.  Therefore, she was entitled approximately one year of VA survivor pension benefits.  Unfortunately, the surviving spouse had died on May [redacted], 2011.  Because she had died prior to the issuance of any payments, her entitlement was cancelled and the check for her payment owed through her death was requested to be returned.  The appellant returned the check to VA, per that request.  Those funds, which were owed to the appellant at the time of her death effective became accrued benefits.
Unfortunately, the Board must conclude that the appellant does meet the criteria for a party eligible to such benefits.  
At the outset, the Board notes that, as the decedent’s son, the appellant cannot be considered a “surviving spouse” or “dependent parent” within the meaning of those terms.  Further, although he is the surviving spouse’s son, he is her adult son and has not provided any evidence that he became permanently incapable of self-support prior to age 18 (or age 23 while pursuing approved higher education).  Therefore, to the extent that the appellant has not been shown to meet the statutory definition of “child” for VA purposes, the Board is unable to award him the complete amount owed to his mother at the time of her death.  Because he does not meet the statutory definition of the first three eligible parties to receive accrued benefits, the Board is limited in its ability to grant any benefits beyond those incurred by the appellant to cover the cost of the surviving spouse’s final illness and burial.  This is the only way the appellant can claim the funds owed to the surviving spouse at the time of her death.  
With his initial claim, the appellant’s sister (the Board observes that the claim was filed by his sister on both her and the appellant’s behalf; the sister’s claim was denied at the same time as the appellants and she did not file a notice of disagreement with that denial) submitted a statement indicating that the surviving spouse’s funeral costs were paid with a previously purchased insurance policy and all medical bill were paid by Medicare.  She further stated that any additional bills were likely to be paid by Medicare as well, and she and the appellant were only expecting a bill of $162.00 for their mother’s care.  She did not provide proof that this bill was paid by her or the appellant.  Considering this, the Board remanded the claim in May 2018 so that the appellant could be afforded the opportunity to provide proof of any costs borne by him for the final illness and funeral of his mother, to include the potential $162.00 bill discussed in the initial claim.  If he could provide such evidence, accrued benefits would be issued to him to reimburse those costs.  
In June 2018, in response to the Board’s remand and VA’s request for further evidence, the appellant submitted a statement in which he argued that the fact that the benefits owed to his mother were delayed until May 2011, after the date of her death, should not change the amount of money she was owed prior to her passing.  He did not provide any further evidence of any costs borne by himself for his mother’s final illness and burial.  In a separate statement, he denied that he was asking for reimbursement for any of his mother’s final expenses, but reiterated that the funds should be released as they were owed to his mother at the time of her death.  Unfortunately, as the appellant has failed to provide any proof that he bore any cost of his mother’s final illness and burial, the Board must deny the claim for any monies owed to the surviving spouse at the time of her death.  
The Board is certainly not unsympathetic to the appellant’s claim.  His mother was, in fact, owed money at the time of her death, and that amount has not changed.  However, because the funds had not been paid to her before her death, those benefits became “accrued” under Federal statute, and VA may only release them to certain eligible parties.  In this case, the appellant is not the surviving spouse’s “child” within the statutory definition of that claim, and has not provided any evidence that he bore any cost for her final illness and burial which may be reimbursed by those funds.  Therefore, he has not shown himself to be a party to which those accrued benefits may be paid under Federal law, and the Board must deny the claim.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102.
 
B.T. KNOPE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Pryce, Associate Counsel