Citation Nr: 1808524 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-03 202A ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Center in St. Paul, Minnesota THE ISSUE Entitlement to accrued benefits in excess of $10,157.04. ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1945 to July 1946 and died in July 1995. The Veteran's spouse died in September 2011. The Appellant is the adult daughter of the deceased Veteran and his deceased spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision of the Department of Veterans Affairs (VA) Pension Center in St. Paul, Minnesota. The Board previously remanded this claim in December 2015 and May 2017 for additional development. Such development has been completed and this matter is returned to the Board for further consideration. FINDINGS OF FACT 1. The Veteran's surviving spouse, V. J. H., was granted an aid and attendance allowance by a February 2011 rating decision. 2. V. J. H. died in September 2012 before payment of retroactive benefits in the amount of $17,138.00 was made. 3. The Appellant is the adult child of the Veteran and V. J. H. and is not shown to be permanently incapable of self-support. 4. The Appellant was paid $10,157.04 as reimbursement for expenses incurred for and related to V. J. H.'s death and burial. 5. The Appellant did not demonstrate that she paid last sickness expenses for V. J. H. with her own money. CONCLUSION OF LAW The calculation of accrued benefits payable to the Appellant was correct, and no further benefits are due to her. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.57, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. See 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 surviving beneficiaries at the time of his surviving spouse's 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 warranted. 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); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law is dispositive, the claim must be denied due to a lack of legal merit). In December 2015 and May 2017, the Board remanded the claim for additional development. Pursuant to the Board's remand, the AOJ provided the Appellant with an audit of monthly amounts paid to V. J. H. from August 2009 to September 2011, as well as monthly amounts still owed to V. J. H. at the time of her death, and issued a supplemental statement of the case. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record. II. Entitlement to Accrued Benefits A. Legal Principles 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, and which were due and unpaid at the time of death. See 38 U.S.C. § 5121(a) (2012); 38 C.F.R. § 3.1000(a) (2017). Upon the death of a veteran, any accrued and unpaid benefits are payable to the living person in such order: (A) the veteran's spouse; (B) the veteran's children (in equal shares); (C) the veteran's dependent parents (in equal shares). 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000 (a)(1). Upon the death of a surviving spouse, accrued benefits are payable to the children of the deceased Veteran. 38 U.S.C. § 5121(a)(2), (3); 38 C.F.R. § 3.1000(a)(1), (2). For accrued benefits, the term ?child" is defined, in pertinent part, as a person who is unmarried and (1) under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3) under the age of 23 and pursuing a course of instruction at an approved educational institution. See 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.57 (2017); Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006). In all other cases, accrued benefits may be paid only as necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). 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). B. Factual Background and Analysis The Appellant seeks payment of the full amount of outstanding benefits owed to V. J. H. The facts of the case are not in dispute. The Veteran's surviving spouse, V. J. H., was awarded entitlement to aid and attendance allowance from August 24, 2009 in a February 2011 rating decision, which also proposed that V. J. H. was incompetent to handle disbursement of her funds. In March 2011 correspondence, VA indicated it was withholding all retroactive benefits owed to V. J. H. until a fiduciary was appointed, but that current monthly benefit payments would begin in March 2011. The Appellant was appointed as V. J. H.'s fiduciary in March 2011, and an August 2011 rating decision determined that V. J. H. was incompetent to handle disbursement of her accrued benefits. V. J. H. died the following month, September 2011. The Appellant is the adult daughter of the Veteran and V. J. H. She filed a claim for accrued benefits in October 2011. On her application, she indicated that she is the only surviving beneficiary. The Appellant noted a list of expenses of last sickness and burial costs for V. J. H., to include, $850.00 paid to Henderson Healthcare by V. J. H., $5,650.00 paid to Helping Hands Care Home by V. J. H., and $10,157.04 paid to Palm Mortuary by the Appellant. The Appellant included statements by Henderson Healthcare, Helping Hands Care Home, and Palm Mortuary as proof of last sickness and burial expenses paid. With respect to Henderson Healthcare, the Appellant produced a bill in the amount of $850.00 and circled the amount, noting that it was paid by check. With respect to Helping Hands Care Home, the Appellant produced a bill in the amount of $5,650.00 and included a copy of a check issued from V. J. H.'s bank account as payment. The statement from Helping Hands Care Home notes that of the $5,650.00 balance owed, $2,500.00 is a refundable deposit and an additional $2,500.00 charge is for advance payment for October 2011 board and lodging. With respect to Palm Mortuary, the Appellant produced a bill in the amount of $10,157.04, as well as a personal credit card receipt reflecting payment of the total amount due. In May 2012, the Appellant was paid $10,157.04 as reimbursement for the costs incurred for V. J. H.'s burial expenses. VA indicated the Appellant could not be reimbursed for expenses paid from V. J. H.'s estate without proof of documentation appointing the Appellant as the executor of V. J. H.'s estate. To date, the Appellant has not provided such documentation. In her February 2013 substantive appeal, the Appellant requested a specific breakdown of benefits paid and still owed to V. J. H. Pursuant to the Board's December 2015 and May 2017 remands, the AOJ provided the Appellant with an audit in September 2017 of monthly amounts paid and owed to V. J. H. from September 1, 2009 to September 30, 2011. The audit indicated that from March 1, 2011 to September 30, 2011, a monthly amount of $1,056.00 was paid to V. J. H., totaling $7,392.00. Retroactive benefits from September 1, 2009 to February 28, 2011 that were withheld until a determination was made regarding V. J. H.'s competency, and were still owed to V. J. H. at the time of her death in September 2011, totaled $17,138.00. More specifically, the audit showed monthly payments owed in the amount of $682.00 from September 1, 2009 to January 31, 2010, which totaled $3,410.00, and monthly payments owed in the amount of $1,056.00 from February 1, 2010 to February 28, 2011, which totaled $13,728.00. Of the remaining $17,138.00 in accrued benefits owed to V. J. H. at the time of her death in September 2011, VA indicated in its audit that the Appellant was reimbursed $10,157.04 for V. J. H.'s burial expenses paid by the Appellant with her own funds, leaving a balance of $6,980.96 in unpaid benefits. Additionally, as part of the Board's December 2015 and May 2017 remands, the AOJ requested from the Appellant any outstanding evidence that she paid for V. J. H.'s last sickness expenses with her own funds. To date, the Appellant has not provided the requested documentation. Upon consideration of the evidence of record, the Board finds that the Appellant is not entitled to payment of accrued benefits in excess of $10,157.04. Unfortunately, the provisions of the law are clear. Where the beneficiary who dies is the surviving spouse of the Veteran, the accrued benefits are then payable to the children, meaning unmarried children under the age of 18, unmarried children still in school under the age of 23, or unmarried children who became incapable of self-support prior to the age of 18. 38 C.F.R. § 3.1000(a)(2), (d)(2). Adult children capable of self-support, such as the Appellant in this case, do not meet the legal definition. To be clear, the Appellant has never contested her age or capacity for self-support and the fact that she was appointed as V. J. H.'s fiduciary in March 2011 demonstrates both. Under the law, the Appellant is not entitled to claim the accrued benefits owed to her mother at the time of her death in her capacity as the Veteran's child. The evidence does not show that anyone meeting the legal definition of ?child" of the Veteran for accrued benefits purposes exists. As such, 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). The funds paid to the Appellant thus far, $10,157.04, represent the burial costs submitted by the Appellant. While the Appellant asserts that she is entitled to last sickness costs in the amounts of $850.00 paid to Henderson Healthcare and $5,650.00 paid to Helping Hands Care Home, although VA has made multiple requests to the Appellant for evidence documenting that she paid for V. J. H.'s last sickness expenses with her own money, to date, the Appellant has provided no such documentation. While the Appellant provided outstanding balance statements from both Henderson Healthcare and Helping Hands Care Home, the Appellant did not show proof that she paid for these expenses with her own funds. The Board notes that on her October 2011 claim for accrued benefits, the Appellant specifically indicated that both of these last sickness expenses were paid for with V. J. H.'s money. Additionally, the Board notes that the September 27, 2011 statement for V. J. H.'s care at Helping Hands Care Home includes a $2,500.00 refundable deposit, as well as a $2,500.00 charge paid in advance for October 2011 board and lodging. While these charges appear to be refundable expenses to be paid by Helping Hands Care Home, the Appellant has not shown that Helping Hands Care Home did not comply with its contract and reimburse those costs directly. Therefore, as the Appellant has not produced documentation demonstrating that she paid for the abovementioned last sickness costs for V. J. H. with her own money, she is not entitled to further reimbursement. The Board is sympathetic to the Appellant's claim and acknowledges that the amount of the benefits owed to V. J. H. was greater than the amount which has been paid to the Appellant as reimbursement of final costs. 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. In sum, the calculation of accrued benefits payable in the amount of $10,157.04 is correct. No further benefits are payable to the Appellant, and the appeal must be denied as a matter of law. ORDER Entitlement to payment of accrued benefits in excess of $10,157.04 is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs