Citation Nr: 18158284 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-21 083 DATE: December 14, 2018 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The Appellant, the Veteran’s daughter, filed an original claim for accrued benefits in September 2013 when she was 64. There is no evidence that she is a helpless child. CONCLUSION OF LAW The criteria for recognition of the Appellant as the surviving child of the Veteran for purposes of basic eligibility for accrued benefits are not met. 38 U.S.C. §§ 101, 1313, 1542, 5121; 38 C.F.R. §§ 3.3, 3.24, 3.57, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1942 to January 1946. The Veteran died in June 2013 and the Appellant is the Veteran’s daughter. 1. Entitlement to accrued benefits The Veteran’s death certificate, submitted with the Appellant’s June 2013 claim application, indicates that he was “widowed” at the time of his death. The Appellant seeks to obtain accrued pension benefits as a surviving child to recover payments that she states were not made to the Veteran during his lifetime. See June 2015 VA Form 9; February 2015 notice of disagreement. In correspondence dated November 2012, the RO indicated that the Veteran would receive monthly pension benefits effective July 1, 2012, and that the Veteran would receive his first payment in January 2013. In the meantime, the VA would withhold retroactive benefits until a fiduciary was appointed. The Appellant argues that these retroactive payments were not made after she was appointed as a fiduciary. Accrued benefits are those benefits to which a payee was entitled at the time of his or her death under an existing rating or based on evidence in the file at the date of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). “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 file on or before the date of death. 38 C.F.R. § 3.1000(d)(4). For a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his or her death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a). Such payments may be made, in order, to the Veteran’s surviving spouse, his children in equal shares, or his dependent parents in equal shares. 38 C.F.R. § 3.1000 (a)(1)–(4). In all other cases, only so much of the accrued benefits may be paid as may be necessary in order to reimburse the person who bore the expenses of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). The term “child” is defined as an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who, 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)(A); 38 C.F.R. § 3.57. In the case of an adult child, accrued benefits are payable only as necessary to reimburse the person who bore the expenses of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). Unfortunately, Appellant has not met the threshold requirement of establishing standing to receive accrued benefits. In her September 2013 claim form, the Appellant indicates that she was born in October 1949. Accordingly, she would have been 63 years old at the time of the application. The Appellant has provided no evidence, nor has she argued, that she became permanently incapable of self-support before the age of 18. Thus, the requirements of 38 C.F.R. § 3.57(a) are not met. Nor does the record show that the appellant is entitled to accrued benefits as the person who bore the expense of last sickness and burial of the Veteran. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). In June 2015, the Veteran submitted a “Care Expense Statement” listing the monthly cost of in-home care for the Veteran in August of 2012. This was accompanied by bank receipts indicating deposits that correspond to this monthly amount during that time period. Unfortunately, these records are not contemporary with the Veteran’s June 2013 death, do not indicate that any such expenses were made coincident with his death, and do not relate to burial expenses. In August 2015, the RO sent the Appellant a letter indicating that she had 30 days to submit proof of paid expenses relating to the Veteran’s last illness and burial. The Appellant has provided no additional evidence. In conclusion, the regulatory definition of a child for accrued benefits purposes does not include a child over the age of 23, as is the case in the Appellant’s appeal. The Appellant is also not specifically asserting entitlement to benefits based on the personal incurrence of expenses for final sickness or burial expenses. In a sense, she seeks benefits as a representative of the Veteran’s estate, which is statutorily barred. 38 C.F.R. § 3.1000(a)(5). For these reasons, the Appellant’s claim must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel