Citation Nr: 18149047 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-02 696 DATE: November 8, 2018 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The appellant is not the Veteran’s qualifying “child” as that term is defined for purposes of accrued benefits under 38 C.F.R. § 3.1000(d)(2) (2017). 2. The appellant did not bear the expenses of last sickness and burial of the Veteran’s surviving spouse. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 5121, 5310 (West 2014); 38 C.F.R. §§ 3.57, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1943 to September 1943, and died in March 1970. In May 2014, the Veteran’s surviving spouse claimed entitlement to nonservice-connected death pension with entitlement to aid and attendance, which was granted in September 2014. The surviving spouse died in November 2014. The appellant is the adult daughter of the Veteran and his surviving spouse. This appeal is before the Board of Veterans’ Appeals (Board) from a March 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Accrued benefits The appellant seeks accrued benefits of the Veteran’s surviving spouse, who died in November 2014. Under 38 U.S.C. § 5121(a), upon the death of a veteran’s surviving spouse, periodic monetary benefits to which the individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (referred to as “accrued benefits”), and due and unpaid, shall be paid to the veteran’s “children.” 38 U.S.C. § 5121(a)(3); 38 C.F.R. § 3.1000(a)(2). 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); 38 C.F.R. § 3.1000(a)(5). In this case, the record reflects that at the time of the surviving spouse’s death, there were due and unpaid nonservice-connected pension benefit amounts. See, e.g., September 2014 VA notification letter; September 2015 deferred rating decision. Therefore, the Board will turn to the question of whether the appellant is entitled to such accrued benefit amounts. For the reasons set forth below, the Board finds that the evidence weighs against a finding that the appellant is entitled to accrued benefits of the Veteran’s surviving spouse. While the record reflects that the appellant is the Veteran’s daughter, the evidence does not in any way suggest that the appellant has qualified at any time during this appeal as a “child” of the Veteran, as that term is defined for purposes of accrued benefits under 38 C.F.R. § 3.1000(d)(2); therefore, the appellant may recover only so much of the accrued benefits, if any, as may be necessary to reimburse her for expenses she personally incurred in connection with her mother’s last sickness and burial. See 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). The Board has considered whether reimbursement of expenses paid for the last sickness or burial of the Veteran’s surviving spouse is warranted. In March 2016, the appellant provided evidence that allegedly shows that she bore the expense of last sickness and burial of the Veteran’s surviving spouse. This evidence includes utility bills (electric, water, and phone bills), which do not qualify as expenses associated with last sickness and burial. The evidence also includes three statements by medical providers showing due and unpaid balances, but there is no evidence that the appellant paid the outstanding amounts. Also included among the evidence was a receipt from a funeral home showing that the payment was made from the surviving spouse’s bank account and not from the appellant’s funds. In December 2016, the appellant provided copies of cancelled checks, which appear to show that payments of the above-referenced medical bills were made from the surviving spouse’s checking account, and not from the appellant’s funds. The appellant has not otherwise submitted any documentation to show that she paid for any of the last sickness and burial expenses of the Veteran’s surviving spouse. Moreover, as noted above, the Board observes that payments made to the surviving spouse’s medical providers, as well as funeral home payments, were made from the surviving spouse’s checking funds. Therefore, the evidence weighs against finding that the appellant bore any expenses associated with the last sickness and burial of the Veteran’s surviving spouse. The Board finds that there is no legal authority to support the appellant’s contentions. Thus, reimbursement of expenses paid for the last sickness or burial of the Veteran’s surviving spouse is not warranted. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Based on the foregoing, the Board finds that there is no legal basis to award the appellant any accrued benefits and the appeal is therefore denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (in cases where the law, and not the evidence, is dispositive, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel