Citation Nr: 1807619 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-26 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to accrued benefits in excess of $486.00. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1944 to March 1946. He died in January 2011. The appellant is his adult stepdaughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2011 and March 2014 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2017, the appellant presented sworn during a video conference hearing in Oakland, California, which was chaired by the undersigned. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. In a November 2011 rating decision, the Veteran was granted special monthly pension benefits based on a need for aid and attendance, effective October 26, 2010. 2. The Veteran died in January 2011. 3. At the time of his death, the Veteran was due $486.00 in unpaid benefits for the months of November and December 2010. 4. At the time of his death, the Veteran was survived by the appellant, his adult stepdaughter. The appellant does not meet the statutory definition of a child as defined in 38 U.S.C. § 101(4)(A) (2012). 5. VA paid the appellant accrued benefits of $486.00 in recompense for the Veteran's funeral and last sickness expenses. CONCLUSION OF LAW The criteria for entitlement to accrued benefits in excess of $486.00 are not met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all of the evidence of record, with an emphasis on the medical evidence pertinent to the claim on appeal. Although all the evidence of record has been thoroughly reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis herein will focus on what the evidence shows, or fails to show, with respect to the appellant's claim. I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. 38 U.S.C. §§ 5102 , 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2017). In this instance, adjudication of the appellant's claim for accrued benefits turns on the law as applied to the undisputed facts about the Veteran's benefits due from VA at the time of his death. As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the claim. Consequently, no further notice or development under the VCAA is necessary. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). II. Merits of the Claim In October 2010, prior to his death, the Veteran applied for special monthly pension (SMP) benefits, based on a need for aid and attendance. After his death, a November 2011 rating decision awarded those benefits effective October 26, 2010, the date of the Veteran's claim. The RO considered his income and deductible medical expenses and determined that he was entitled to $165.00 per month. Following the appellant's submission of documentation of additional medical expenses paid by the Veteran prior to his death, the RO increased the entitlement to $243.00 per month. The monthly payments for November 2010 and December 2010 (totaling $486.00) were not paid to the Veteran and were, therefore, accrued and due to him at the time of his death. In February 2011, the appellant filed an application, VA Form 21-601, seeking accrued benefits due to the decedent. In subsequent submissions, she stated that she bore the expenses for her stepfather's funeral and last sickness, including caregiving required for 8 years prior to his death. She also submitted a bill from the funeral home listing of the funeral in the amount of $1760.50 and several receipts for monthly payments of $900 that she made to various caregivers prior to his death. In a December 2011 determination, the AOJ granted the appellant's claim for accrued benefits in the amount of $330.00, in payment for the Veteran's last sickness and funeral expenses for which the appellant was responsible. This was subsequently increased to $486.00 in a March 2014 decision. As noted above, this was the entire amount of the accrued benefits due to the Veteran upon his death. The appellant appealed, claiming entitlement to reimbursement for the money she spent caring for the Veteran during the 8 year period leading up to his death. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death. 38 U.S.C. § 5121(a) (2012); 38 C.F.R. § 3.1000(a) (2017). Upon the death of a beneficiary, any accrued benefits are payable as follows: (1) to his or her spouse, (2) to his or her children (in equal shares), and (3) to his or her dependent parents (in equal shares) or the surviving parent. For accrued benefits, the term "child" is defined, in pertinent part, as: An unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) 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 educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57(a); see also 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.1000(d)(2) (2017). 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)(1) (2012); 38 C.F.R. § 3.1000 (a)(1) (2017). In short, in order to be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. Burris v. Principi, 15 Vet. App. 348, 352-53 (2001). The provisions of the law are clear. Although it is not clear whether the appellant became a stepchild to the Veteran prior to her 18th birthday, it is clear that she is not under the age of 18, did not become permanently incapable of self-support prior to age 18, and is not between 18 and 23 years old and pursuing her education. As such, she does not meet the legal definition of "child" of the Veteran for accrued benefits purposes and she is not entitled to claim the accrued benefits owed to her stepfather at the time of his death under this provision. The only other category under which accrued benefits are payable is in the form of reimbursement to cover the costs of the last sickness or burial of the beneficiary. 38 C.F.R. § 3.1000(a)(5) (2017). The funds paid to the appellant thus far, $486.00, represent the last sickness and funeral costs she submitted. Although the amount she has submitted exceeds $486.00, she has been paid the entirety of the accrued benefits available. As discussed in detail above, $486.00 is the total amount of benefits unpaid and due to the Veteran upon his death. The appellant has received the full amount of these accrued benefits as reimbursement for the expenses she incurred for the Veteran's last sickness and death. As the appellant has received the entirety of the accrued benefits due to the Veteran upon his death, there are no additional accrued benefits from which to reimburse the appellant for her costs above $486.00. The appellant has also argued that the medical expenses she paid for the Veteran's last 8 years of life should be considered in calculating his monthly SMP amount. However, the Board finds that there is nothing to support this argument. The appellant has not submitted any additional receipts of medical expenses paid by the Veteran during the period that he received monthly SMP benefits. The expenses paid by her cannot be used to calculate the Veteran's SMP benefits prior to his death, only expenses paid by the Veteran himself may be considered. Additional accrued benefits cannot be paid under this theory either. The Board is sympathetic to the appellant's claim and recognizes her commitment and care to her stepfather. Under the law as it stands, however, the appellant is not entitled to receive any additional accrued benefits, because she does not meet the legal requirements and the Board has no legal discretion in this matter. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b) (2012). ORDER Accrued benefits in excess of $486.00 are denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs