Citation Nr: 19106966 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-34 539 DATE: January 29, 2019 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The appellant is an adult over the age of 23, and there is no evidence that he became permanently incapable of self-support before the age of 18. 2. The appellant has not established that he bore the expense of the beneficiary’s last sickness and/or burial. CONCLUSION OF LAW The appellant does not meet the requirements for establishing basic eligibility to receive accrued benefits; the legal criteria for establishing entitlement to accrued benefits are not met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a surviving child of a Veteran who served on active duty from September 1958 to September 1961; he died in January 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Regional Office (RO) notification letter which denied the appellant’s claim for accrued benefits. Entitlement to accrued benefits is denied. Legal Criteria A survivor claiming entitlement to accrued benefits may be paid periodic monetary benefits to which a beneficiary was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the beneficiary died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). In order to be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients in 38 U.S.C. § 5121. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (concluding that a 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of “child” in section 101(4)(A), which excludes anyone over age 23 unless they were “permanently incapable of self-support” before reaching 18 years of age). Upon the death of a surviving spouse, accrued benefits are paid to the deceased veteran’s children. 38 U.S.C. § 5121(a)(3); 38 C.F.R. § 3.1000(a)(2). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of the veteran’s last sickness and/or burial. 38 U.S.C. § 5121(a)(6). A “child” is defined in 38 U.S.C. § 101(4)(A) 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. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Factual Background The Veteran died in January 2012. In February 2012, his surviving spouse filed a claim for service connection for the cause of the Veteran’s death, death pension benefits, burial benefits, and aid and attendance or housebound benefits (for herself). A May 2012 rating decision (and notification letter) denied service connection for the cause of the Veteran’s death, entitlement to aid and attendance or housebound benefits, dependency and indemnity compensation, death pension benefits, and accrued benefits. A total payment of $1,400 was granted for burial benefits. In February 2014, the Veteran’s surviving spouse (the appellant’s mother) passed away. In December 2014, the appellant filed a VA Form 21-601 (application for accrued benefits due to a deceased beneficiary) and identified the Veteran’s surviving spouse as the deceased beneficiary. He reported that he was born in 1962, and that his other siblings were born thereafter. He also reported burial expenses of $9,000, that such expenses were paid using funds from the Veteran’s estate, and that he had been reimbursed for the expenses paid from his personal funds. Analysis On review of the record, the Board finds that the appellant, the adult son of the deceased Veteran and his deceased spouse, does not meet the basic eligibility requirements for receipt of accrued benefits, and that entitlement to accrued benefits is not warranted. The appellant’s December 2014 application for accrued benefits indicates he was born in 1962. He does not contend, and there is otherwise no indication in the record, that he (or any of the Veteran’s other adult children) became permanently incapable of self-support before age of 18. Thus, he does not qualify under any of the criteria for receiving accrued benefits following the death of the Veteran’s surviving spouse enumerated in 38 U.S.C. § 5121(a)(3). Hence, he can only qualify for receipt of accrued benefits if he establishes that he bore expenses of the beneficiary’s last sickness and/or burial (to the extent of his unreimbursed payment for such). 38 U.S.C. § 5121(a)(6). Upon review of the evidence, including the appellant’s December 2014 application for accrued benefits, the Board finds that sufficient information pertaining to any expenses paid by the appellant for the payee’s last sickness and burial has not been provided. As discussed above, 38 U.S.C. § 5121 places the burden on the claimant to produce the evidence necessary for VA to determine whether an award from accrued benefits may be properly made. Here, evidence necessary for VA to determine whether an award may be properly made has not been submitted. The payee’s death certificate shows that she died in February 2014 of metastatic breast cancer; the appellant did not submit information regarding expenses paid for her last illness, nor did he report such on his December 2014 application. While he reported burial expenses of $9,000, he also indicated that those were paid by the funds from the Veteran’s estate, and that he was reimbursed for expenses paid from his personal funds. [He did not list any remaining debts.] Consequently, the Board concludes that the record does not contain the evidence necessary for VA to determine whether an award may be properly made. As such, the appellant’s claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). Finally, the Board notes the appellant’s February and May 2017 statements that he believes he is entitled to “wrongful death compensation” for the Veteran’s death under 38 U.S.C. § 1151. However, as discussed above, the law is dispositive. The appellant is not eligible to receive VA death benefits, to include dependency and indemnity compensation, either based on service connection for the cause of the Veteran’s death or under 38 U.S.C. § 1151. [The Board additionally notes that, in 2015, the appellant and his siblings settled with VA a claim under the Federal Tort Claims Act regarding t “in-patient hospitalization at [a VA Medical Center that] resulted in [Veteran’s] death.] The Board acknowledges and appreciates the Veteran’s honorable military service and sympathizes with his family’s loss. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dupont, Jason