Citation Nr: 18157983 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 15-19 439 DATE: December 14, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The surviving spouse was not owed any unpaid benefits at the time of her death. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 1503, 5107, 5121, 5503; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.57, 3.102, 3.271, 3.551, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1944 to May 1946. The Veteran died in March 2010. The Veteran’s surviving spouse died in November 2013. The appellant is the Veteran’s adult son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 decision letter issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. 1. Entitlement to accrued benefits The appellant seeks accrued benefits owed to his mother, the Veteran’s surviving spouse at the time of her death. 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). After careful consideration, the Board finds that the claim should be denied. Benefits become accrued if they are owed to a recipient, but unpaid at the time of the recipient’s death, or if the recipient had a claim pending at the time of their death which was later granted. For example, in the present case, the appellant has correctly stated that his mother was paid accrued benefits upon the Veteran’s death in 2010. The evidence shows that the Veteran was granted special monthly compensation based on need for aid and attendance in a March 23, 2010, rating decision. The Veteran died four days later, prior to those benefits being disbursed to him, thereby becoming accrued benefits. The appellant’s mother, as the surviving spouse, was entitled to that entire amount under Federal statute. Thus, she was granted those benefits owed to the Veteran at the time of his death but which were unpaid. Moving on to the appellant’s claim for accrued benefits owed to his mother, the surviving spouse, upon her death in 2013, the Board finds that that claim must be denied as she was not, in fact, owed any benefits at the time of her death. At the outset, 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). Under prevailing law, the appellant (the decedent’s son) cannot be considered a “surviving spouse” or a “dependent parent.” 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, presuming such benefits existed. 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. The surviving spouse was granted survivor’s pension benefits with special monthly compensation based on need for aid and attendance in a March 2013 rating decision. On May 3, 2013, she submitted additional income disclosures indicating that she had entered a nursing facility and her unreimbursed medical expenses had increased. Therefore, to the extent that that disclosure implied a claim for increased pension benefits, that claim was pending at the time of her death in November of that year. However, the Board finds that that claim would not have resulted in any additional benefits paid to the surviving spouse prior to her death. Effective October 2012 through the date of her death, she was in receipt of $666 per month in survivor pension benefits. The surviving spouse’s initial claim was granted based on her disclosures that she personally covered her unreimbursed medical expenses. In fact, in the May 2013 disclosure, when asked for whom her various medical expenses were paid, she wrote “self.” Entitlement to death pension benefits exists if, among other things, the surviving spouse’s income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 as changed periodically and reported in the Federal Register. See 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3(b)(4), 3.23(a), (b), (d)(5). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. §§ 3.21, 3.23. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. See 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). Fractions of dollars will be disregarded in computing annual income. See 38 C.F.R. § 3.271(h). In this case, the grant of survivor pension benefits was predicated on her own payment for medical expenses which were used to offset her monthly income. To the extent that the appellant now asserts that he paid those medical expenses for his mother, and would seek reimbursement for them, that would have raised her monthly income, creating an overpayment to the surviving spouse prior to her death, creating a debt as opposed to any additional benefits owed to her on that claim. In short, if the appellant and not his mother paid her medical expenses which were used to calculate her pension benefits, her pension benefit for the final seven months of her life would have, in fact, been lower than what she was paid, and no benefit would be owed to her to become accrued. The Board further observes that in August 2014, the appellant, in support of his claim, submitted a care expense statement for the final months of his mother’s life (April 1, 2013, through November 19, 2013) which she spent in the care of a skilled nursing facility. That disclosure stated that the surviving spouse had applied for Medicaid and her cost of care was covered thereby. Under applicable Federal regulation, if a surviving spouse having no dependent child is receiving Medicaid-covered nursing home (nursing facility) care, no pension or death pension in excess of $90 per month shall be paid to or for the surviving spouse for any period after the month in which the Medicaid payments begin. A veteran or surviving spouse is not liable for any pension paid in excess of the $90 per month by reason of VA’s inability or failure to reduce payments, unless that inability or failure is the result of willful concealment by the veteran or surviving spouse of information necessary to make that reduction. 38 U.S.C. § 5503; 38 C.F.R. § 3.551(e). The term “Medicaid plan” is defined as a State plan for medical assistance under 42 U.S.C. § 1396a. 38 U.S.C. § 5503(d)(1)(A). In this case, as the surviving spouse had entered a nursing care facility and her care was covered by Medicaid, she was not entitled to any payments greater than $90 per month from the date she entered the facility. In fact, she continued to be paid at the rate of $666 per month until her death seven months later. While Federal regulations imply that she would possibly not be liable for this overpayment made to her (the Board does not offer an opinion on whether she would be liable, but notes that the issue has not been fully addressed and there is no clear indication of willful concealment in the record), it does not create a benefit owed to her by virtue of her claim for increased payments filed in May 2013. Rather, that claim could only have resulted in a reduction of her benefits from that day forward. As such, the Board must conclude that she was not owed any benefits at the time of her death and therefore no benefits became accrued. The Board has carefully reviewed the evidence but found no further evidence of any benefits owed to the appellant at the time of her death which may have become accrued. The Board is not unsympathetic to the appellant’s claim. His mother had been paid accrued benefits owed the Veteran at the time of his death, and had his mother been owed any benefits as of November [redacted], 2013, he would be entitled to claim them up to the amount that he paid for her last illness and burial. Unfortunately, there is no evidence that any such benefits existed. In fact, the record indicates that the surviving spouse was likely paid more than her legal entitlement in the final seven months of her life. Therefore, absent any evidence of benefits owed to the appellant which would have become accrued at the time of her death, 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