Citation Nr: 1818262	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  13-10 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in White River Junction, Vermont


THE ISSUE

Entitlement to accrued benefits for reimbursement for the expenses of the Veteran's last sickness.


REPRESENTATION

Appellant represented by:	Vermont Office of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and sister



ATTORNEY FOR THE BOARD

Y. Taylor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1942 to November 1945.  The Veteran died on February [REDACTED], 2011, and the appellant is his daughter.  

At the time of the Veteran's death, a claim of entitlement to nonservice-connected pension based on a need for aid and attendance was pending.  Following the Veteran's death, the appellant applied for accrued benefits, which was accepted as a claim to be substituted as the claimant, and that status was granted pursuant to 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (e) (2017).  Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death.  

This matter came before the Board of Veterans' Appeals (Board) from a decision letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The case was certified to the Board by the RO in White River Junction, Vermont.  

The appellant testified before the undersigned Veterans Law Judge during an August 2013 videoconference hearing; a transcript is of record. 

The Board previously remanded this case for additional development in March 2015 and November 2017.  The case has been returned to the Board for appellate review.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  


FINDINGS OF FACT

1.  The appellant is not a "child" within applicable regulations for purposes of entitlement to accrued benefits.  

2.  The preponderance of the evidence is against finding that the appellant used her own funds to pay for his last sickness expenses.   


CONCLUSION OF LAW

The criteria for entitlement to accrued benefits for reimbursement for the expenses of the Veteran's last sickness are not met.  38 U.S.C. § 101, 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In November 2010, the RO granted the Veteran non service-connected pension and special monthly pension (SMP) based on the need for aid and attendance; in the same rating decision, a finding of incompetency was proposed.  In January 2011, the RO determined that the Veteran was not competent to handle disbursement of funds.  While the issue of competency was pending, the Veteran's benefits accrued and were withheld by the RO from disbursement, which never occurred due to his death one month after the determination of incompetency.  In February 2011, the Veteran died.  Subsequently in the same month, the appellant filed an application for accrued amounts due a deceased beneficiary, asking to release accrued benefits to her.  At the January 2014 Board hearing, the appellant testified that she was seeking reimbursement for the expense of the last sickness.  The Board notes that VA reimbursed the appellant for her expense incurred for the Veteran's burial in July 2011.  

Upon the death of a veteran, specific regulations govern the disbursement of accrued VA benefits.  VA law provides that accrued benefits are payable, in descending order, to the Veteran's spouse; or, to the Veteran's children (in equal shares); or, to the Veteran's dependent parents (in equal shares); or to the person who bore the expense of the last sickness or burial of the payee, but only as much as necessary for reimbursement of such expenses.  38 U.S.C. § 5121 (a) (2012); 38 C.F.R. § 3.1000 (a) (2017).

There is no material dispute that the Veteran was eligible for benefits and that they had not been disbursed when he died.  The appellant, however, does not have standing to collect any such benefits.  The appellant is not entitled to accrued benefits based on her relationship to the Veteran as she reports being born in October 1948 and is thus not a "child" under 38 C.F.R. §§ 3.57, 3.1000(d)(2). "Child," under that section is as defined in 38 C.F.R. § 3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction within the meaning of 38 C.F.R. § 3.57 at the time of the payee's death.  38 C.F.R. § 3.1000 (d)(2).  Here the record shows that the appellant is over the age of the age of 23 and there is no assertion or indication that she became permanently incapable of self-support before the age of 18.  Thus, she does not meet the definition of child for accrued benefits purposes and she is not eligible for benefits in that capacity.

Thus, the sole remaining issue in this case is whether the appellant paid any of the Veteran's last expenses or last illness expenses out of her own funds.  

While the term "last sickness" is not defined under VA law or regulations, a similar term is defined in the VA Adjudication Procedure Manual (M21-1MR).  Under M21-1MR, Part V, Subpart 1, Chapter 3, Section D, para 15.b, the term "last illness" was defined as the period from the onset of the acute attack causing death up to the date of death.  If 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.  

In accordance with this, in the March 2015 remand, the Board clarified what "last illness" means for the purpose of accrued benefits and asked the appellant to submit further evidence that would aid in determining the nature of medical expenses for the Veteran.  

The appellant submitted spreadsheets of the home care expenses as well as for the health insurance payment during the relevant period.  In addition, the appellant submitted a bank statement dated December 2008 showing that both the Veteran's and appellant names are associated with a checking account, from which checks have been written out to pay medical expenses.  The appellant also submitted copies of canceled checks written to home care givers and all those checks have signatures from both the Veteran and the appellant.  

However, none of the evidence submitted demonstrates that the appellant used her own funds to pay medical expenses for the Veteran.  In June 2017, the RO requested the appellant to submit (1) bank statements containing the deposits made into the account she and the Veteran shared and (2) evidence that the last expenses were paid out of her own funds.  The RO noted that it did not receive any response from the appellant in its August 2017 supplemental statement of the case (SSOC).  

Additionally, in the November 2017 remand, the Board directed the RO to ask the appellant to submit a documentation demonstrating that the Veteran's assets had been depleted prior to his death and any available documentation that she had contributed to the joint checking account by depositing her own money in the account.  In a December 2017 letter, the RO properly notified the appellant and requested the appropriate documentations in accordance with the remand directive.  
The RO noted that it did not receive any response from the appellant in its February 2018 SSOC.  

In conclusion, without any evidence demonstrating that the appellant used her own funds to cover the Veteran's expenses, the evidence of record only shows that the appellant was managing the Veteran's funds on his behalf to pay for his medical and other expenses.  As such, the appellant is not entitled to accrued benefits based on bearing the expense of last sickness.  38 C.F.R. § 3.1000(a)(1)(5).  

The Board concludes that it cannot render a favorable decision in this matter.  There is no legal basis under which accrued benefits may be granted to the appellant.  The facts of this case as presented by the evidence of record are not in dispute and the law is dispositive.  The Board is sympathetic to the appellant's situation, however, it is bound to apply the law as it is written and has no authority to grant benefits on an equitable basis, no matter how compelling the argument.  38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994); Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).


ORDER

Entitlement to service connection for accrued benefits for reimbursement for the expenses of the Veteran's last sickness is denied. 

____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs