Citation Nr: 18155292 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 14-40 229 DATE: December 3, 2018 ORDER Entitlement to accrued benefits in excess of $3,402.73 is denied. FINDINGS OF FACT 1. The appellant is not the surviving spouse, dependent child or dependent parent of the Veteran. 2. The appellant has been reimbursed for all final expenses paid. CONCLUSION OF LAW The criteria for entitlement to accrued benefits in excess of $3,402.73 have not been met. 38 U.S.C. § 5121; 38 C.F.R. 3.57, § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from March 1945 to July 1945. She died in November 2011. The appellant is the Veteran’s nephew and the executor of her estate. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO), in which the appellant’s claim was initially denied in full. In May 2018, the Board remanded this appeal for further development. Thereafter, in August 2018, the appellant was granted $3,402.73 in accrued benefits from the Veteran’s disability pension award that had been withheld pending the appointment of a fiduciary. This amount represents the amount the appellant showed he paid for the Veteran’s last expenses. In addition, the Veteran’s disability pension award was recalculated using new information submitted by the appellant. After the award to the appellant, there remained a balance from the Veteran’s pension award, but the appellant was advised that amount could not be paid to him because VA could only pay him what he paid in last expenses. The appellant continued his appeal seeking the remainder of the funds from the recalculated pension award. Entitlement to accrued benefits in excess of $3,402.73 The appellant has continued to disagree with the denial of his claim for accrued benefits despite having been awarded $3,402.73 because this is not the total amount that was due the Veteran at the time of her death. Instead, he is seeking the total amount of the recalculated pension award (which would be $10,666.00 per the August 2018 notice letter) that had been withheld from the Veteran’s benefits pending the appointment of a fiduciary prior to her death. The appellant does not seek the funds for himself but for the nursing home facility in which the Veteran was residing from October 2010 until her death in November 2011. According to the appellant, the nursing home agreed to accept the Veteran’s social security check which fell far short of the actual cost of room and board contingent upon the expectation that the nursing home would be receiving her VA pension benefits. In a rating decision issued in August 2011, the RO granted the Veteran non-service-connected disability pension with special monthly pension based on aid and attendance effective December 3, 2010, the date her claim was received. In addition, the RO proposed a finding of incompetency. The Veteran did not contest such finding and, in an October 2011 rating decision, the RO effectuated the finding of incompetency. Unfortunately, the Veteran died just one month later, in November 2011, before a fiduciary could be appointed. As is its regular procedure, the RO withheld payment of the Veteran’s retroactive award in August 2011 pending resolution of the issue of competency and then in October 2011 pending the appointment of a fiduciary over the Veteran’s VA benefits. This withholding resulted in a balance due to the Veteran which was recalculated in August 2018. She was informed of the withholding shortly before she died in the October 2011 notification letter advising her of the decision finding her incompetent. These are the funds that the appellant is seeking in his claim for accrued benefits. Accrued benefits are certain periodic monetary benefits to which a veteran was entitled at death, or those based on evidence in a veteran’s claims folder at the date of death, and shall be paid to certain named beneficiaries, ordinarily a veteran’s spouse, children or dependent parents. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Pursuant to 38 U.S.C. § 5121(c), an application for accrued benefits must be filed “within one year after the date of [the veteran’s] death.” See also 38 C.F.R. § 3.1000(c). However, accrued benefits may also be paid as necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). Accrued benefits include those the veteran was entitled to at the time of death under an existing rating or the evidence physically or constructively of record at the time of the veteran’s death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a); Ralston v. West, 13 Vet. App. 108, 113 (1999). Thus, the appellant cannot furnish additional evidence that could be used to substantiate the claim, and VA could not develop additional evidence that would substantiate the claim of entitlement to accrued benefits. “Evidence in the file at date of death” means evidence in VA’s possession on or before the date of the beneficiary’s death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); see also Hayes v. Brown, 4 Vet. App. 353 (1993). The appellant does not contend that he is one of the named beneficiaries listed in the law entitled to accrued benefits. In other words, he is not a surviving spouse, dependent child or dependent parent of the Veteran. Rather, he is the Veteran’s nephew who was taking care of the Veteran and was appointed the executor of her estate upon her death. As acknowledged by the RO in the award of $3,402.73, the appellant paid some of the Veteran’s final expenses and, therefore, he has been reimbursed for those out of the funds that were due to the Veteran. However, the appellant seeks the total amount due the Veteran at the time of her death for payment to the nursing home in which she resided for the last year of her life. Unfortunately, the Board must find that the appellant has no legal entitlement to the benefits he is seeking. In enacting 38 U.S.C. § 5121, Congress limited eligibility for accrued benefits due and unpaid to the same few categories of dependent family members for whom a veteran could seek additional disability compensation while alive. See Morris v. Shinseki, 26 Vet. App. 494, 499 (2014). If no eligible listed survivor is alive at the time of the veteran’s death, then accrued benefits due and unpaid may be paid to any person “who bore the expense of last sickness and burial,” but “only so much of the accrued benefits [may be paid]... as may be necessary to reimburse the person.” 38 U.S.C. § 5121(a)(6). No other categories are of payee at death are provided in the statute. Youngman v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012). The applicable law does not include fiduciaries, estates, or executors of estates among the persons eligible to receive accrued benefits. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit have repeatedly affirmed that accrued benefits claims by persons other than those listed in section 5121(a) are not viable as a matter of law, such as a deceased veteran’s brother, nephew, fiduciary, and “estate.” See e.g., Morris v. Shinseki, 26 Vet. App. at 499-500; Youngman, 699 F.3d at 1303-04; Pelea v. Nicholson, 497 F.3d 1290, 1291-92 (Fed. Cir. 2007); Richard v. West, 161 F.3d 719, 721-23 (Fed. Cir. 1998); Wilkes v. Principi, 16 Vet. App. 237, 242 (2002). Thus, unfortunately, whether he filed his claim as the Veteran’s nephew, executor or fiduciary (which he had not yet been appointed as but had noted on his application), the appellant is not a person whom has a viable claim for accrued benefits beyond the amount he has already been paid under the law. For that reason, his claim must be denied. The Board regrets that it could not provide a more favorable outcome in this decision and understands the appellant’s position and desire to pay the nursing home that took care of the Veteran in her final year. However, the Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. In summary, VA law is dispositive in this matter and the appellant is limited to reimbursement for what he paid for the Veteran’s final expenses, which he has been paid in the amount of $3,402.73. The appellant has not shown that he has paid any further amounts towards the Veteran’s expenses of last illness or burial   and, therefore, the appellant’s claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow