Citation Nr: 18154768 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-05 053 DATE: November 30, 2018 ORDER Entitlement to accrued benefits in excess of $13,386.25 for reimbursement of final expenses is denied. FINDINGS OF FACT 1. The payee, now deceased, is the Veteran’s surviving spouse, and was entitled to a total of $28,431 in VA benefits. 2. The payee died in December 2010, prior to payment of VA benefits due. 3. $13,386.25 have been paid to date as reimbursement of final expenses, leaving a balance of $15,044.75 in accrued benefits remaining unpaid. 4. The appellant is the daughter of the Veteran and the payee, is over the age of 23 years, and is not shown to have been permanently incapable of self-support before reaching the age of 18 years. 5. The appellant has not submitted an official bill or consistent and credible documentation regarding final expenses for a daily home health nurse. 6. Other expenses, to include renovations to the payee’s condominium, bedding, and self-payment to the appellant are not final expenses and may not be reimbursed from the remaining accrued benefits. CONCLUSION OF LAW The criteria for entitlement to an amount in excess of $13,386.25 of accrued benefits as reimbursement for final expenses have not been met. 38 U.S.C. §§ 101, 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from November 1947 to October 1951. The Veteran passed away in April 2009, and his surviving spouse passed away in December 2010. The appellant in this case is their daughter. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the file has since been transferred to the RO in New York, New York. In February 2015, the Board denied entitlement to accrued benefits in excess of $13,006.25 for reimbursement of final expenses. The appellant appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In September 2015, the Court granted a Joint Motion for Remand (JMR) that vacated the February 2015 Board decision and remanded the issue for readjudication consistent with the JMR. In December 2015, the Board granted entitlement to an additional $380 of accrued benefits, but denied an award in excess of that sum. The appellant appealed that determination to the Court. In August 2017, the Court issued a Memorandum Decision that vacated the Board’s December 2015 decision, and remanded the matter for proceedings consistent with the Memorandum Decision. The Court stated that the Board did not provide adequate reasons and bases for its denial of benefits. This claim was previously before the Board in February 2018, at which time it was remanded for additional development. That development having been completed, this claim is once again before the Board. Upon the death of a payee of VA benefits, periodic monetary benefits to which he or she was entitled to, on the basis of evidence in the file at the date of death (accrued benefits) may be paid to certain parties. 38 U.S.C. § 5121 (a) (2012); 38 C.F.R. § 3.1000 (a) (2017). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121 (c). Persons eligible for such payments (which are paid upon the death of the Veteran to the first living person listed) 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)(1). They are also payable upon the death of a surviving spouse or remarried surviving spouse, to the Veteran’s children. 38 C.F.R. § 3.1000 (a)(2). The definition of the term “child,” means an 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 at the time of the Veteran’s death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) 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 (a), 3.1000(d)(2). Review of the record shows that, subsequent to the Veteran’s death, the payee filed a claim for dependency and indemnity compensation (DIC) and special monthly pension based upon the need for aid and attendance of another person, which was subsequently granted. However, the funds due the payee were withheld pending a determination of her competency to handle funds. Before the competency determination was rendered by the Agency of Original Jurisdiction (AOJ), the payee died. Subsequently, within one year of the payee’s death, the appellant filed a claim for accrued benefits based upon the payee’s claim for DIC/special monthly pension based upon the need for aid and attendance. The appellant is the daughter of the payee; however, she is over the age of 23 and has not been deemed permanently incapable of self-support. Therefore, the appellant cannot qualify as a “child” for VA purposes who may be awarded accrued benefits. Accordingly, she does not have legal standing to recover the entirety of the accrued benefits that she asserts were due to the payee at the time of her death. 38 U.S.C. §§ 101 (4), 5121; 38 C.F.R. §§ 3.57 (a), 3.1000. However, accrued benefits may also be paid as may be deemed necessary to reimburse the person who bore the expenses of the last sickness and burial. 38 U.S.C. § 5121 (a)(6); 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. § 3.1000 (a). The record reflects that VA reimbursed the appellant for expenses relating to burial and other expenses to the appellant in the amount of $13,006.25, as reflected in the June 2011 decision on appeal and December 2012 statement of the case. Additionally, the Board previously determined in its December 2015 decision that the appellant had spent $380.00 out of a joint account with the payee for day care expenses to which she was also due to be reimbursed. The appellant asserts entitlement to additional reimbursement for final expenses in excess of these amounts. The appellant specifically asserts entitlement to reimbursement for home health aide services. In this regard, it is noted that the appellant submitted a February 2010 statement in which she indicated that she was in the process of paying for home care for the payee. Although no specific amounts or to whom such payments were being made were indicated in that letter, it was indicated that she had been making such payments since May 2009. Additionally, in support of this aspect of her claim, in January 2012, the appellant submitted a “bill” purporting to itemize these private aide expenses. The appellant asserts she paid for these expenses in cash, and has submitted bank account information and a check registry showing cash withdrawals in support of this assertion. She has also submitted a signed statement from Mrs. C.F. stating she worked for the appellant from April 2009 to September 2010, caring for her mother. Initially, the Board recognizes that private aide services would constitute final expenses for the care of the payee. However, even in light of C.F.’s statement and the “bill” submitted by the appellant, the Board finds such evidence is not credible. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). In this regard, the appellant has provided vastly different accounts of the care required for her mother, as well as the expenses of such care. For example, in November 2009, prior to the payee’s death, the appellant submitted a statement in which she referred to herself as her mother’s caregiver, and does not mention the need for a private aide. Further, she specifically stated “I have paid myself to cash” and “[s]ince May 1st, I pay myself $300 a week or [approximately] $1200 a month for 7 months.” Accompanying this statement, the appellant submitted a Medical Expense Report, also dated November 2009, showing she paid herself as her mother’s caregiver $1200 per month from May through November 2009, for a total of $8,400. At this time, the appellant did not note any other medical expenses other than what she paid herself, significantly to include private aide care purportedly provided by C.F. In August 2010, the appellant submitted a statement noting “I have cared for [the payee] since...April 2009.” Again, she did not at that time indicate any need or use of private aide services. Additionally, although it is noted that the appellant later in February 2010 indicated that she had been paying a home health care worker cash since May 2009, there are no discussions of specific amounts, dates, services, or to whom such payments were made. There is no other mention of payment to a home health care worker until the current claim filed in January 2011. Following the payee’s death, the appellant submitted VA Form 21-601, Application for Accrued Amounts Due a Deceased Beneficiary in January 2011. In this application, she listed payments to C.F. in the amount of $24,960 for in home health care. While the date of receipt by VA is unknown, the appellant also submitted a photocopy of the Medical Expense Report submitted in November 2009, to which she added $1200 per month from December 2009 to August 2010, and $900 for September 2010. She also altered this form from her original submission, adding a notation that the expenses from May 2009 to September 2010 were paid in cash to C.F. and totaled $11,700. In her July 2011 notice of disagreement, she asserted entitlement to reimbursement for “at least $8,400 in private aide care.” In January 2012, the appellant submitted a “bill” purportedly paid in full in cash to C.F. totalling $11,360. Even though this “bill” is signed by C.F., the Board notes it was not prepared until over a year following the payee’s death. Furthermore, the “bill” appears to be back-dated to April 2009 to be consistent with the appellant’s February 2010 statement, although such statement actually indicated that payment had begun in May 2009. In addition, the “bill” is inaccurate on its face, as it includes charges for overlapping dates. See, e.g., $360 for 30 hours from November 7, 2009, to November 18, 2009, followed by $360 for 30 hours from November 14, 2009, to November 20, 2009. Finally, in a July 2013 letter to her Congressional Liaison Office, the appellant denied VA’s finding that she paid herself and stated she paid a total of $15,906, for the home health aide. In determining whether statements and evidence submitted by an appellant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). As a fact-finding matter, the Board finds serious questions about the consistency, timing and accuracy of the appellant’s account of last expenses she paid to raise serious credibility issues with her statements and assertions, and other lay statements provided in support of her claim, regarding the need, expense, and length of time required of a home health aide. As noted above, despite her assertions otherwise in July 2013, the appellant explicitly stated in November 2009 that she was paying herself $1200 per month to care for her mother, and submitted a Medical Expense Report to this effect. The Board finds it reasonable to believe that, had the appellant paid C.F. over $8,000 in cash by this time, she would have so stated, or otherwise have mentioned the employment of a home health aide in this or subsequent statements prior to the payee’s death. In addition, the appellant has at different points during the appeal asserted she paid vastly differing amounts to C.F. for her services, ranging from at least $8,000 to as much as $24,960. Finally, the Board does not accept the “bill” submitted in January 2012 as an accurate accounting of the payee’s final expenses, as it was prepared over a year after the payee’s death as opposed to when the services were purportedly rendered, and includes accounting of payments for overlapping dates as well as for dates the appellant previously stated she had paid herself. The mere fact that this “bill” could possibly be corroborated by the appellant’s mere mentioning of paying for home health care services since May 2009 in her February 2010 statement does little to absolve the manifest inconsistencies discussed above, as it is not unreasonable to presume that the appellant could have simply had the dates of the “bill” drafted in January 2012 to reflect a consistency with a statement she had made in February 2010, which was still factually inconsistent in being off by a month. For these reasons, the Board finds that the payment of accrued benefits for reimbursement of home health aide services is not warranted. Finally, the appellant also seeks reimbursement for costs associated with her family relocating to care for the payee, including adding a bedroom to the payee’s condominium for the appellant’s son, and the purchase of a sleeper sofa and bedding for the living room. Even though the appellant may believe these expenses were necessary to allow her to care for her mother, they are not directly related to the payee’s care nor has the appellant submitted evidence to indicate such expenses were medically necessary. As such, these expenses may not be considered “last expenses” under applicable regulations and, therefore, reimbursement is not warranted. In sum, the Board has found the appellant’s assertions that she paid anywhere from $8,400 to nearly $25,000 in cash to C.F. for home health care are not credible and, thus, this purported expense is not reimbursable, nor are relocation, condominium renovation, or non-medical bedding expenses. The Board is sympathetic to the appellant and greatly appreciates the Veteran’s honorable service to his country. Even though the appellant quit her job and moved her family to care for her mother during her final illness, unfortunately, the Board has no authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As described above, there is no legal basis for an award of this claim, and it must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant has no legal basis to claim entitlement to accrued benefits beyond the $13,386.25 already paid. As this claim must be denied as a matter of law, the benefit of the doubt rule is not for application. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel