Citation Nr: 18149358 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-18 723 DATE: November 9, 2018 ORDER Whether the appellant filed a timely notice of disagreement (NOD) to an October 17, 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied accrued benefits, is granted. REMANDED Entitlement to accrued benefits is remanded. FINDINGS OF FACT 1. On October 17, 2013, the RO mailed the appellant notification that her claim for accrued benefits was denied. 2. Evidence in the form of a certified letter-return receipt card shows that on October 15, 2014, the RO received the appellant’s NOD with regard to the October 17, 2013 denial of her claim for accrued benefits. CONCLUSION OF LAW The appellant filed a timely NOD with the October 17, 2013 RO decision denying her accrued benefits. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1944 to April 1946. He died in April 2012, and the appellant is his daughter. The Veteran’s spouse preceded him in death, and the Veteran’s daughter filed an application for accrued benefits, specifically, nonservice-connected special monthly (aid and attendance, A&A) pension benefits that were due and unpaid to the Veteran at the time of his death. The RO denied her application for accrued benefits in October 2013. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 RO decision, which determined that the appellant did not file a timely NOD to its October 2013 decision denying accrued benefits. In November 2018, the appellant testified at a hearing before the undersigned. Whether the appellant filed a timely NOD to an October 17, 2013 RO decision, which denied accrued benefits Under 38 U.S.C. § 7105, an appeal to the Board must be initiated by a timely filed NOD in writing and completed, after an SOC has been furnished, by a timely filed Substantive Appeal. 38 C.F.R. §§ 20.201, 20.202. A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute an NOD. While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201. The NOD must be filed with the VA office that entered the determination with which disagreement has been expressed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.300. To be considered timely, an NOD with a determination by the AOJ must be filed within one year from the date that the agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. 38 C.F.R. § 20.305(a). The Board finds that the appellant has filed a timely NOD to the October 17, 2013 RO decision denying her application for accrued benefits. The Board acknowledges that the RO in a September 2016 supplemental statement of the case (SSOC) appears to have found that the appellant’s NOD was timely, but the issue of a timely NOD was certified to the Board and was the subject discussed at the Board hearing in November 2018. A review of the claims file clearly shows that the appellant’s letter, dated October 9, 2014, in which she expressed her disagreement with the RO’s denial of her accrued benefits claim, was received within the requisite one-year period following the date that the RO mailed its notification of the denial of her application on October 17, 2013. The record initially shows that a copy of her NOD was received in January 2015, after which the RO in a March 2015 letter informed her that it could not accept her NOD as the time limit to file the NOD had passed (and thus this appeal ensued). However, on more than one occasion the appellant thereafter submitted copies of her October 9, 2014 letter, accompanied by a certified letter-return receipt card that undeniably shows on October 15, 2014 an individual at the VARO received her submission (the return receipt card was then postmarked on October 16, 2014). The VARO in Philadelphia both issued her the denial letter in October 2013 and received her NOD in October 2014. There is no explanation as to why the appellant’s submission in October 2014 was not associated with the record. It appears that in fact some documents were received into the record on October 16, 2014, but they pertained to the Veteran’s military service (i.e., his separation documents). Nonetheless, it is fortunate that the appellant sent her NOD by certified mail, and therefore could produce a return receipt card to substantiate that her NOD was indeed timely filed. The matter of the merits of the denial of her accrued benefits claim is now for consideration, as will be discussed further in the remand section below. The Board is acutely aware of the extraordinary lengths to which the appellant has gone to show that she has filed a timely NOD to the denial of her accrued benefits application. The Board is grateful to the Veteran for his honorable service during World War II, and deeply regrets the considerable delays that the appellant, his daughter and fiduciary, has encountered in seeking the nonservice-connected special monthly pension to which he was due and remained owing to him at the time of his death. Given her experience in seeking VA monetary assistance for the Veteran during his last illness and accrued benefits after his death, her frustration is justified and her persistence is commendable. REASONS FOR REMAND Entitlement to accrued benefits is remanded. The remaining matter for resolution is the appellant’s entitlement to accrued benefits. In a September 2016 SSOC, the RO reached the merits of this issue in the first instance, asserting that it could not approve the appellant’s claim because on her application for benefits she reported that her funds were not used to pay for the Veteran’s last expenses, and therefore it was unable to reimburse her for expenses she did not incur. Under 38 C.F.R. § 3.1000(a), accrued benefits may only be payable to the surviving spouse, surviving child, or dependent parents. (For VA purposes, the term “child” means an unmarried person who is a legitimate child, a legally adopted child, a stepchild who was a member of the Veteran’s household at the time of death, or an illegitimate child (acknowledged by the Veteran either in writing or via court ordered child support) of the Veteran; and is under the age of 18 years; or before reaching the age of 18 years became permanently incapable of self-support; or 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 approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57.) Nevertheless, accrued benefits may be paid to a person only so much as may be necessary to reimburse that person for the expense of the last sickness or burial. 38 C.F.R. § 3.1000(a)(5). Despite the RO’s statement in the SSOC to the contrary, the appellant appears to have used her funds to pay for expenses of the Veteran’s last illness. She has submitted evidence in the form of copies of receipts and bank statements for substantial out-of-pocket expenses she paid in the year prior to the Veteran’s death in April 2012 for his and his spouse’s (before her death in August 2011) home healthcare and maintenance. Such evidence was received in January 2015, and quite probably in October 2014 when her NOD was received but not associated with the record. Moreover, her NOD provided a detailed timeline in which she asserted that in August 2012 she sent her accrued benefits application along with over 50 pages of documents to show that she used her own funds to pay for the Veteran’s care (the August 2012 submission of documents does not appear to be of record). At the time of the Board hearing, the appellant provided additional evidence of her payments, and such evidence has yet to be associated with the record (although the record indicates that a temporary file was sent to scanning for the upload of the file to the electronic record). During the Veteran’s last illness, the appellant filed for and was recognized (belatedly) as the Veteran’s fiduciary to receive his VA special monthly pension on his behalf (because he was deemed incompetent), but the Veteran died before any payments were made to her. On VA Form 21-555a, Designation of Payee, dated in March 2012, it was noted that the appellant was the legal custodian of the Veteran and that a lump sum of $12,728 was to be released to her. However, this lump sum amount may not be the entire sum that was due and owing to the Veteran at the time of his death. On VA Form 21-592, Request for Appointment of a Fiduciary, Custodian or Guardian, dated December 8, 2011, it noted that the amount of benefits entitled to but unpaid to date was $12,728. In other words, as the Veteran lived another few months after the lump sum was calculated, there may be additional monthly pension (covering December 2011 to the date of the Veteran’s death) that has not been included in the benefits accruing at the time of his death. Considering the foregoing, the RO should ascertain the entire amount of benefits due and owing to the Veteran at the time of his death. Then, after reviewing the evidence submitted by the appellant reflecting the amounts she paid out of her own funds for the Veteran’s last sickness and burial, the RO should determine the amount of accrued benefits to which she is entitled. From a preliminary review of her documentation, it appears she may be entitled to most, if not all, given evidence of substantial outlays on her part; however, the RO must first clarify the exact amount of accrued benefits, determine if the appellant is a proper claimant under 38 C.F.R. § 3.1000(a)(5), and then calculate the qualified expenses she paid for the Veteran. The matter is REMANDED for the following action: 1. Calculate the entire amount of VA benefits that were due and unpaid to the Veteran at the time of his death, to include all lump sum and subsequent monthly amounts of special monthly pension. In that regard, it appears that a lump sum amount of $12,728 was calculated in December 2011, but that the Veteran may also have been owed special monthly pension from then until his death in April 2012. 2. Confirm that the appellant is a proper claimant for accrued benefits under 38 C.F.R. § 3.1000(a)(5), and adjudicate her claim, ensuring first that her complete record (all submissions) regarding all the expenses of the Veteran’s last illness and burial that she paid out of her own funds is on file. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel