Citation Nr: 18159779 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-20 547 DATE: December 20, 2018 ORDER Accrued benefits in excess of $9,825 are denied. FINDINGS OF FACT 1. At the time of her death, the appellant’s mother was in receipt of a special monthly compensation pension (SMP) based on the need for aid and attendance. 2. The appellant bore the expense of the burial of her mother in the amount of $9,825, which has already been awarded by the RO. CONCLUSION OF LAW The criteria for an award of accrued benefits in excess of $9,825 have not been met. 38 U.S.C. §§ 101, 5121, 5122; 38 C.F.R. § 3.57, 3.1000, 3.1003. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1943 to August 1945. He died in April 2002. The appellant is the Veteran and his surviving spouse’s adult daughter. The matter is on appeal from a June 2013 decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Accrued benefits in excess of $9,825. Legal Criteria Basic entitlement to accrued benefits exists and periodic monetary benefits authorized under VA laws, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid upon the death of a veteran to the living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent; (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran’s children; (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation; (4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents; and (5) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). For VA purposes, “child” means minor children, unmarried children who became permanently incapable of self-support prior to attaining 18 years of age, and those under 23 years of age pursuing a course of instruction within the meaning of 38 C.F.R. § 3.57. 38 C.F.R. § 3.1000(d)(2); see also 38 U.S.C. § 101(4)(A). Analysis The Veteran’s surviving spouse was awarded SMP based on the need for aid and attendance pursuant to a January 2011 rating decision, effective February 25, 2010. She passed away in November 2011. In a June 2013 decision, VA awarded the appellant $9,825 to reimburse her for expenses she incurred for her mother’s care and funeral. In a July 2013 notice of disagreement (NOD), the appellant asserted that the remainder of any unpaid pension should be paid to her or, in the alternative, to her mother’s estate. The appellant contends that neither she nor the estate of her mother has received death pension payments to which her mother was entitled. Specifically, she states that she or her mother’s estate is owed approximately $22,176, representing 21 months death pension payments (awarded at $1056 per month). In this case, the appellant is only entitled to expenses she herself incurred for the surviving spouse’s last sickness or burial—i.e., $9,825. There is no material dispute that the appellant does not meet the definition of a “child” pursuant to 38 C.F.R. § 3.1000(d)(2) as she is an adult. Because the appellant is not a “child” within the meaning of the controlling regulation, she may only be paid so much of this accrued benefit amount as may be necessary to reimburse her for bearing the expense of last sickness or burial. See 38 C.F.R. § 3.1000(a)(5); see also Sucic v. Shulkin, 29 Vet. App. 121 (2017) (holding that adult children do not meet the definition of children for accrued benefits or substitution purposes). The appellant contends that, had the payments due to her mother been properly made, her mother would have received the VA benefits. Additionally, the money should be sent to her estate, for which the appellant is the executor. Lastly, the appellant contends the amount should be greater as the surviving spouse’s assisted living facility expenses should have been included against income in arriving at the proper death pension amount. The United States Court of Appeals for Veterans Claims (Court) has addressed similar circumstances in Morris v. Shinseki, 26 Vet. App. 494 (2014). In Morris, the appellant was the Veteran’s surviving brother, fiduciary and legal guardian. At the time of the Veteran’s death in Morris, he was due approximately $75,000 but it had not yet been paid as a surety bond had not been obtained that would allow for the release of it to the brother as the fiduciary. The Court first noted that fiduciary status does not lead to accrued benefits eligibility. Id. at 500 (citing to Youngman v. Shinseki, 699 F.3d 1301, 1304 (Fed. Cir. 2012)). The Court further held that the due but unpaid benefits are not eligible to be paid to the estate (beyond the expenses of last sickness or burial) because an estate is not listed as a potential accrued benefits party under 38 U.S.C. § 5121(a) and 38 C.F.R. § 3.1000(a). This is so even in light of state inheritance laws. Morris, 26 Vet. App. at 505. Furthermore, there is an indication that VA attempted to send the benefits due to the surviving spouse but they were returned as undeliverable or were rejected from wiring the amount. The only exception where the estate is paid the amount is if a check is received by the beneficiary prior to death and it is not properly negotiated (i.e., “cashed”). See 38 U.S.C. § 5122; 38 C.F.R. § 3.1003. That was not the case here as the surviving spouse never received the amounts or a check prior to her death. In other words, the benefit payment must be at least delivered to or under the control of the payee prior to the payee’s death. See Wilkes v. Principi, 16 Vet. App. 237, 242-43 (2002) (holding that 38 U.S.C. § 5122 was inapplicable where electronic transfer to deceased payee’s account six days after payee’s death). (Continued on the next page)   The Board is sympathetic to the appellant’s case. However, the Board cannot by law award accrued benefits beyond the amount of $9,825 already awarded, including as payments to her mother’s estate. Thus, additional accrued benefits are not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George