Citation Nr: 1806475 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-10 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to additional accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1942 to August 1945. He died in December 2003 and his surviving spouse (E.V.) was granted a death pension with aid an attendance allowance from October 2007 until the time of her death in April 2009. The Appellant in this matter is the adult son of the Veteran and the Veteran's late surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 determination by the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. By a January 2009 decision, the RO determined monthly amounts owed the Veteran's surviving spouse. That rating decision was not appealed within one year of its issuance, and it became final. 2. The Veteran's surviving spouse passed away in April 2009. At that time, based on the January 2009 rating decision, she was owed and had not been paid the amount of $1,573.00. 3. The Appellant provided documentation that he paid burial expenses for the Veteran's spouse, in excess of $1,573.00. 4. By an April 2011 rating decision, the RO awarded the Appellant $1,573.00 in accrued benefits. CONCLUSION OF LAW The criteria for entitlement to additional accrued benefits have not been met. 38 U.S.C. §§ 5121, 5121A (2012); 38 C.F.R. §§ 3.1000(a)(5), 20.302 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA must assist a claimant at the time a claim for benefits is filed. 38 U.S.C.§§ 5100, 5102, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The matter decided in this decision, however, rests on the interpretation and application of the relevant law, and VA's obligations in terms of its duties to notify and assist claimants do not apply. See Mason v. Principi, 16 Vet. App. 129 (2002). In any event, no additional development is indicated by the record. The Board has reviewed all the evidence in the record. The Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Background By way of background, in September 2007, E.V. filed a claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits. In June 2008, the RO issued a decision granting death pension benefits with an additional allowance for aid and attendance. The RO determined that E.V. was entitled to a monthly award of $976.00 beginning October 1, 2007 and $998.00 beginning December 1, 2007. This amount was based on E.V.'s payments for Medicare Part B and what the RO interpreted as the monthly cost for E.V.'s assisted living facility. In calculating this amount, the RO did not account for the portion of the assisted living facility that was covered by long-term care insurance and was, therefore, not an out-of-pocket expense. The Appellant made the RO aware of this mistake and no benefits were paid out under that allowance. While the death pension claim was pending, in a September 2008 rating decision, the RO determined that E.V. was not competent to manage her financial affairs, as due to a physician's assessment. Accordingly, the Appellant was appointed as fiduciary for E.V. As E.V.'s fiduciary, the appellant met with a VA representative in October 2008 to determine the actual expenses E.V. regularly incurred as part of her aid and attendance. A VA Form 21-8416, detailing the expenses, was prepared by both the appellant and a VA representative on October 14, 2008. The VA Form 21-8416 included the total out-of-pocket medical expenses paid during 2008 for Medicare Part B, private medical insurance premiums, "health shakes" (later described as nutritional supplements), and the cost of the assisted living facility where E.V. resided. The form also included the total cost of prescription medications from January 2008 to September 6, 2008. In November 2008, the RO granted a non-service connected death pension with aid and attendance dating back to October 1, 2007-the first date the pension would have been paid out after the claim. The RO calculated the total monthly entitlement as $702.00. This amount included the regular monthly costs for Medicare Part B and private insurance premiums, as well as what the RO had interpreted as the monthly out-of-pocket cost for the assisted living facility-$635.00. It did not include an amount for prescription medications or health shakes, as they were not shown to be a recurring medical expense at the time of the claim. In this determination, the $635.00 amount that VA had interpreted as a monthly expense for the assisted living facility was, in fact, an annual expense. VA issued a check, dated December 1, 2008, in the amount of $9,806.00 for the pension award from October 1, 2007 through December 2008. The Appellant, recognizing that the amount represented an overpayment of actual expenses, notified VA of its mistake and returned the check. At the same time, the Appellant questioned why E.V.'s medications and health shakes were not being considered in the payment, as there had been medical evidence justifying her need for them. In January 2009, the RO issued a decision identifying the recalculated entitlement amount owed to E.V. This amount included: $41.00 per month beginning October 1, 2007; an increase to $112.00 per month beginning January 1, 2008, based on an increase in medical expenses; and $53.00 per month beginning January 1, 2009, based on a decrease in medical expenses. The calculations did not include consideration of the expenses for prescriptions and medications because there was no evidence showing that they represented recurring medical expenses, and did not include consideration of the health shakes because the Appellant had not provided the complete date they were paid. The notification letter informed the Appellant that if he disagreed with the decision, he could file a written appeal within a year of the decision date. No appeal of the decision was filed. Since the Appellant had returned the December 1, 2008 check, VA temporarily suspended the payment of benefits. After the January 2009 recalculation, the RO notified the Appellant that it would reinstate monthly payments and that E.V. would receive a lump sum for prior payments owed. See Notification Letter, Received March 3, 2009. Based on the amounts identified in the January 2009 notification letter, for the period of October 2007 through March 2009, VA owed E.V. a total of $1,573.00. The record shows that in February 2009, VA sent the Appellant a check for $764.00 and in March 2009, VA sent the Appellant a check for $809.00, for a total of $1,573.00. The Appellant, believing these amounts were still in error, did not return the checks but also did not cash them. Notifications from June 2010 show that the United States Department of the Treasury voided both of the uncashed checks. The record shows that E.V. passed away on April [redacted], 2009. At that time, although VA had issued checks in the amount owed her, she had not received the actual funds since the checks had never been cashed. On April 4, 2010, the Appellant filed a claim for accrued amounts due a deceased beneficiary. With the claim, the Appellant provided an itemized list of death and burial expenses he had personally paid, totaling $8,562.23. In April 2011, the RO issued a decision approving the Appellant's claim for accrued benefits in the amount of $1,573.00, the amount that had been owed to E.V. but had never been actually collected by her or the Appellant. In April 2012, the Appellant filed a notice of disagreement with the April 2011 accrued benefit award, arguing that the award did not include consideration of all of the medical expenses owed E.V. before her death. In a January 2014 statement of the case, the RO denied the increase in amount of accrued benefits, explaining that there were no pending appeals on the award at the time of E.V.'s death and VA did not have the ability to amend awards made prior to her death. Furthermore, the RO pointed out that in Youngman v. Shinseki, 699 F.3d 1301, the United States Court of Appeals for the Federal Circuit confirmed that a fiduciary does not have standing under 38 U.S.C. § 5121(a) to receive accrued benefits due and unpaid to a Veteran at the time of the Veteran's death, beyond the amounts necessary to reimburse a person who bore the last sickness or burial expenses. In response, the Appellant submitted a formal appeal and resubmitted the October 2008 VA Form 21-8416 Medical Expense Report, along with an additional page of more itemized monthly expenses. The additional page was not of record prior to E.V.'s death. The RO issued a supplemental statement of the case, explaining that that VA could not retroactively readjudicate the award. Pertinent Law 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 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 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). If a claimant disagrees with a decision by an agency of original jurisdiction, the claimant, or his or her representative, must file a notice of disagreement within one year from the date the agency mails notice of the decision to the claimant. If the claimant does not file a notice of disagreement, the claim becomes final. 38 C.F.R. § 20.302. Analysis The evidence does not establish the Appellant either was under 23 years of age, or was an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age at the time of E.V.'s death. Accordingly, the Appellant is not considered the Veteran's "child" under 38 C.F.R. § 3.1000(d). Therefore, the Appellant's only avenue of entitlement to accrued benefits is under 38 U.S.C. 5121(a)(6) and 38 C.F.R. § 3.1000(a)(5). As the person who bore the expense of E.V.'s burial, the Appellant is entitled to be reimbursed for the actual amounts he paid, within the limitations of actual accrued benefits owed E.V. at the time of her death. The Appellant contends that VA incorrectly determined the amount owed to E.V. at the time of her death. He maintains that the RO never correctly calculated an appropriate monthly payment for aid and attendance and that, as a result, the amounts paid out by VA prior to E.V.'s death did not represent the actual amounts to which she was entitled. The January 2009 award of death pension and aid and attendance benefits represented a decision by an agency of original jurisdiction. As noted above, in that decision, and in response to an inquiry by the Appellant, the RO explained that the calculations of the benefit did not include consideration of the expenses for prescriptions and medications because there was no evidence showing that they represented recurring medical expenses, and did not include consideration of the health shakes because the Appellant had not provided the complete date they were paid. See the January 2009 decision, page 4. The Appellant was informed that if he disagreed with the outcome, he needed to notify the RO in writing within one year of the decision. See id. The Appellant did not notify the RO of a disagreement with the decision within one year-i.e., by the end of January 2010. Accordingly, this decision became final at that time. The Board recognizes that E.V. passed away during the administrative appeal period-meaning, she passed away during the one-year period of time allotted for a proper party to file a notice of disagreement with the January 2009 decision. This period closed however at the end of January 2010, without a notice of disagreement filed with VA, and prior to the Appellant's April 2010 claim for accrued benefits. See 38 C.F.R. § 3.160; see also Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007) (where a veteran dies before the expiration of one year following a rating decision, and an accrued benefits claimant files a claim within that same year, there is a claim pending at the time of the veteran's death). Thus, any challenge to the January 2009 award would have needed to be submitted within the statutory time limit in order to be considered for adjusting the amount owed E.V. prior to her death. The RO's April 2011 rating decision, then, was solely a determination on the Appellant's entitlement to reimbursement for the expenses of E.V.'s burial from any accrued benefits still owed and unpaid to E.V. at the time of her death. That is to say, the April 2011 rating decision was not a decision on the amount of the accrued benefits from which burial expenses could be drawn, as that decision had become final in January 2010. The decision was only on whether the Appellant was entitled to draw from them and, if so, how much. By granting the Appellant's claim for accrued benefits in April 2011, the RO granted the Appellant reimbursement for burial expenses, only to the extent that the accrued benefits were already determined to exist. Noting that the RO's decision on E.V.'s monthly award became final under 38 C.F.R. § 20.302, the Board must then determine whether the RO correctly applied its own calculations when determining the total accrued benefits at the time of E.V.'s death and the amounts reimbursable to the Appellant. In its January 2009 decision, the RO determined that E.V. was entitled to benefits based on the following calculations: Beginning October 1, 2007, an award of $41.00 per month. Beginning January 1, 2008, an award of $112.00. Beginning January 1, 2009, an award of $53.00. Based on these amounts, E.V. should have received a total of $123.00 in 2007, a total of $1,344.00 in 2008, and a total of $106.00 in 2009, prior to her death, for a total of $1,573.00. As the Appellant had not cashed any of the checks sent to E.V., $1,573.00 represented the amount owed E.V. at the time of her death. When the Appellant filed his claim for accrued benefits, the RO awarded him $1,573.00 as it was the entirety of the accrued benefits available for reimbursement. Given that the Appellant never appealed the January 2009 benefits decision, this is the maximum accrued benefit that may be afforded under the law. The Board recognizes that the Appellant was diligent in making overpayments known to VA in the months leading up to the RO's January 2009 determination. Ultimately, however, the RO's January 2009 decision as to an award amount became final and in April 2011, VA correctly limited the Appellant's reimbursement to the amount owed E.V. based on the January 2009 decision. (CONTINUED ON NEXT PAGE) ORDER The claim of entitlement to additional accrued benefits is denied. ____________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs