Citation Nr: 18161141 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-20 569 DATE: December 28, 2018 ORDER Entitlement to additional accrued benefits is denied. FINDING OF FACT The appellant is not a qualifying “child” as defined by VA regulation, and the expenses funded by the appellant were claimed by A.W. as medical expenses in connection with her claim for special monthly pension based on aid and attendance and formed the basis of the award. CONCLUSION OF LAW The criteria for accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1942 to January 1946. The appellant is the daughter of A.W. and the Veteran. Except as otherwise provided, where death occurred on or after December 1, 1962, periodic monthly benefits (other than insurance and service member’s indemnity) authorized under the laws administered by VA 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 as follows: upon the death of a surviving spouse or remarried surviving spouse, to the veteran’s children. 38 U.S.C. § 5121 (a) (1-3); 38 C.F.R. § 3.1000 (a)(2). 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 the last sickness or burial. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5). “Child” means an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age or an unmarried child over the age of 18 but not over 23 years of age who was pursuing a course of instruction at the time of the payee’s death. 38 C.F.R. § 3.1000 (d)(2). In December 2009, the Veteran’s surviving spouse, A.W., applied for death pension benefits and special monthly pension (SMP) based on the need for aid and attendance. In conjunction with the claim, A.W. provided a report of assisted living information detailing monthly expenses paid to the assisted living facility where she resided. VA initially denied A.W.’s claim for aid and attendance in a February 2010 determination, declining to offset her countable income by the payments made to the assisted living facility, and determining her countable income surpassed the income limit at the aid and attendance rate for a surviving spouse. A.W. submitted a written statement disagreeing with the February 2010 determination in April 2010, asserting that the assisted living costs specifically qualified as deductible expenses to reduce her countable income. With her April 2010 statement, A.W. submitted an opinion from her private physician certifying that A.W. had progressing Alzheimer’s disease which rendered the assisted living care necessary. SMP for aid and attendance was subsequently granted in a March 2011 rating decision, with benefits effective from November 30, 2009. The claim was granted based on a determination that A.W.’s medical expenses, including assisted living costs, reduced her countable income to $0. In a March 2011 letter to A.W. notifying her of its decision, VA reported that she was entitled to receive $1,056.00 per month, and the first payment would be released April 1, 2011. Thus, she was also entitled to retroactive benefits for the 16 months of payments she had not received since her entitlement was effectuated, i.e., from December 1, 2009 through March 2011. As there was evidence A.W. was not able to handle her own financial affairs, the payment of retroactive benefits for the 16-month period prior to the issuance of her first payment was withheld pending an incompetency determination and appointment of a fiduciary. A.W. conceded incompetency, and the appellant applied to be A.W.’s legal custodian in April 2011. The process to appoint the appellant as fiduciary had not been completed by the time A.W. passed away in June 2011. Thus, at the time of A.W.’s death, the retroactive funds had not been released. In April 2012, the appellant filed an application for accrued benefits. In a January 2013 RO determination, the appellant was awarded $11,947.00 in accrued benefits, the amount paid by the appellant for burial expenses. As noted above, accrued benefits are payable to the Veteran’s children. 38 C.F.R. § 3.1000 (a)(2). Although the appellant is the daughter of the Veteran and A.W., the appellant is not a “child” for purposes of VA accrued benefits, nor does she contend that she meets the legal criteria to be considered a “child” for VA purposes. The evidence does not establish that the appellant is under the age of 23 or is a helpless child. 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). VA paid the appellant the sum of $11,947 for the cost of funeral and burial expenses. There is no contention that additional money is owed for burial or funeral expenses. Rather, the appellant contends that she is owed the remainder of A.W.’s accrued benefits (i.e., the unpaid retroactive benefits less the funeral expenses) to reimburse her for money she paid out of her personal account for the bills from A.W.’s assisted living facility. VA has conceded that the appellant spent at least the amount of benefits which were due to A.W. at the time of her death in support of A.W. Thus, the issue is whether the payments were necessary expenses of a last sickness. Although the term “last sickness” is not defined in VA law or regulations, a similar term is defined in the VA Adjudication Procedures Manual Rewrite. See M21-1MR, Part V, Subpart 1, Chapter 3, Section D, para. 3(b), which is entitled, “Developing for Unreimbursed Funeral and Other Final Expenses.” Paragraph 3(b) of this section defines the term “last illness” as “the period from the onset of the acute attack causing death up to the date of death.” However, “[i]f death resulted from a lingering or prolonged illness instead of an acute attack, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person.” A.W.’s death certificate lists the immediate cause of death as cardiopulmonary arrest, due to or as a consequence of atherosclerotic heart disease. Other contributing cause of death was listed as senile dementia (Alzheimer’s Disease). The claims file does not indicate that any medical bills were paid by the appellant in relation to treatment for an acute attack resulting in A.W.’s death, notably the cardiopulmonary arrest that resulted in A.W.’s death. The Board acknowledges that the claimed expenses were for assisted living that provided regular and daily attendance for a prolonged illness, namely the Veteran’s Alzheimer’s disease, which is listed as a contributory cause of death on the death certificate. However, unreimbursed medical expenses used to calculate the Veteran’s accrued benefits for special monthly pension may not be claimed as payments made by the appellant due to the Veteran’s last sickness. See VA Manual, Part V, Subpart I, Chapter 3, Section D, 3(c). The assisted living fees claimed by the appellant were reported as unreimbursed medical expenses in relation to A.W.’s claim for special monthly pension and were claimed and considered to be an expense of A.W. As such, the same expenses cannot be claimed again as an expense of the appellant. The Board has considered whether the appellant may have legal entitlement to accrued benefits on behalf of the estate of A.W. However, as A.W. died prior to receiving payment of retroactive pension award benefits from VA, this payment cannot be part of the estate. See Wilkes v. Principi, 16 Vet. App. 237, 242-43 (2002). See also VAOPGCADV 31-91, citing VAOPGCPREC 22-92. The Board acknowledges that the claim for accrued benefits due to a deceased beneficiary may also be inferred as a request by the appellant to be substituted as the claimant for the purposes of processing the Veteran’s claim to completion. See 38 U.S.C. § 5121A (substitution in case of death of a claimant who dies on or after October 10, 2008). However, substitution is only permitted for a living person who would be eligible to receive accrued benefits due to a claimant under 38 U.S.C. § 5121 (a). See 38 U.S.C. § 5121A (a)(1). As earlier explained, the appellant in this case is not such an eligible person. Thus, the Board finds that the issue of substitution is not applicable in this case. In sum, the applicable authority does not allow for accrued benefits for the adult daughter of A.W. and the Veteran beyond the $11,947.00 in recompense for the expenses of the funeral and burial. In so finding, the Board acknowledges that the circumstances resulting in the delayed payment of pension benefits to A.W. are regrettable. However, the Board is bound by the applicable law and regulations as written. See 38 U.S.C. § 7104 (c). Payment to the appellant as a surviving beneficiary, or to the estate of the deceased A.W., is not authorized under 38 U.S.C. § 5121 as discussed above. Moreover, there is no other avenue pursuant to which the Board can legally award the appellant the payment of monies associated with death of A.W.; the Board is without authority to grant the benefit sought simply because it might perceive the result to be equitable. For these reasons, the Board finds that the appeal must be denied as a matter of law. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel