Citation Nr: 19181663 Decision Date: 10/29/19 Archive Date: 10/28/19 DOCKET NO. 17-49 499 DATE: October 29, 2019 ORDER Entitlement to accrued benefits in excess of $8,396.24 is denied is denied. FINDING OF FACT 1. A November 2016 decision, a VA Regional Office granted an aid and attendance allowance to the Veteran’s surviving spouse and the Veteran’s surviving spouse passed away in December 2016 prior to any benefits being paid to her. 2. The appellant incurred $8,396.24 in expenses related to the Veteran’s surviving spouse, the appellant’s mother, last illness and funeral expenses CONCLUSION OF LAW The criteria for entitlement to accrued benefits in excess of $8,396.24 have not been met. 38 U.S.C. §§ 101, 5121, 5122; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1942 to September 1945. The Veteran and his surviving spouse are deceased. The appellant is the surviving spouse’s adult daughter. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2017 decision of a Regional Office (RO) for Department of Veterans Affairs (VA) that denied the appellant’s request for accrued benefits. In March 2016, the appellant completed a VA Form 21-22 naming Disabled American Veterans as her representative and filed a notice of intent to file a claim in her own name. Therefore, DAV’s representation on behalf of the appellant was not revoked by the subsequent appointment of another representative on the Veteran’s surviving spouse’s behalf. In January 2017, the appellant filed a substitution of claimant, VA Form 21-0847, and an application for reimbursement from accrued amounts, VA Form 21-601 in March 2017. A substitution determination was made by the RO in October 2019, granting the appellant’s request for substitution. A March 2017 notification letter denied any payment to the appellant as she had not submitted any expenses with the application. In May 2017, the appellant filed a notice of disagreement (NOD) and submitted documents relating to the last illness and funeral expenses for her mother. In July 2017, a partial grant of the benefit sought was paid to the appellant in the amount of $7,791.00. A statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9) in September 2017. An October 2017 rating decision changed the effective date of the award of aid and attendance allowance to the appellant’s mother. As a result of the earlier effective date, the amount of accrued benefits owed to the appellant increased in the amount of $605.24. . 1. Entitlement to accrued benefits in excess of $8,396.24 is denied The appellant seeks entitlement to accrued benefits in excess of the $8,396.24 already awarded. She seeks to have all amounts due to the Veteran’s surviving spouse paid to her and requests that the month of December be pro-rated based upon the actual date of death. Accrued benefits are those benefits to which a payee was entitled at the time of his or her death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Upon death of the Veteran’s surviving spouse payments may be made to the Veteran’s children. 38 C.F.R. § 3.1000(a)(2). In all other cases, only so much of accrued benefits may be paid as may be necessary to reimburse the person who bore the expenses of last sickness or burial. 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. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001). The Court has held that a “child” for accrued-benefits purposes is defined by 38 U.S.C. § 101(4)(A). See Burris, 15 Vet. App. at 352. The definition of “child” is expressly 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. See 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57; Burris, 15 Vet. App. at 352-53; Nolan v. Richardson, 20 Vet. App. 340 (2006). The threshold question in any claim for VA benefits is whether status as an eligible claimant has been established. See Hayes v. Brown, 7 Vet. App. 420 (1995). The relevant facts are not in dispute. The Veteran’s surviving spouse died in December 2016. Prior to her death, in a November 2016 rating decision, the RO   awarded the Veteran’s surviving spouse an allowance for aid and attendance in the amount of $1,113.00 per month. A RO employee subsequently calculated that the Veteran’s surviving spouse was due $7,791.00 of accrued benefits. An October 2017 decision corrected the maximum accrued benefit amount to $8,904.00 by granting an earlier effective date of March 11, 2016. In March 2017, the appellant in this case, filed an application for reimbursement from accrued amounts due a deceased beneficiary. In May 2017, after the benefit was initially denied, she submitted a letter detailing her disagreement with the decision and noted she had filed for the benefit in March 2016. She also submitted expenses relating to her mother’s last illness and cremation services totalling $8,396.24. In July 2017 the appellant received $7,791.00 and an SOC was issued detailing the reasons for the payment. The appellant filed a Form 9 in response indicating she believed she was entitled to an additional $3,986.90, specifically $1,113.00 for the month of April 2016, a pro-rated amount for December 2016 of $1,095.90, and funeral expenses of $1,056.00. A subsequent October 2017 decision granted benefits for the month of April and the appellant was reimbursed an additional $605.24 for the expenses of her mother’s last illness and funeral expenses for a total of $8396.24. In a November 2017 Form 9 filing she indicated she was still due $1,113.00 for April and $1,056.00 for funeral expenses. This request is denied as shown below. The Board finds that, as a legal matter, the appellant does not qualify as a beneficiary under 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000. 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 VA. 38 C.F.R. § 3.57 (a). See also 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.1000 (d)(2). However, the appellant does not contend that she is under the age of 18 or that she is under the age of 23 and is pursuing a course of instruction at an educational institution. There is also no argument or indication that she became permanently incapable of self-support before the age of 18. The appellant’s 2017 application for accrued benefits indicates that she was born in March 1947. In sum, the appellant cannot be deemed an eligible survivor under 38 U.S.C. § 5121 because she does not meet the statutory definition of “child” under 38 U.S.C. § 101(4)(A) to be eligible for the payment of accrued benefits, other than those paid in the case to reimburse her for her mother’s last expenses. The Board acknowledges the appellant’s contentions that the she deserves additional accrued benefits on a pro-rated basis for the month of December. However, the Veteran’s surviving spouse is not entitled to benefits for the month of her death. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.500 (g). Even if she was eligible for such a benefit it would constitute harmless error presently as the appellant has been awarded all monies currently due to her as discussed below. The appellant’s award of accrued benefits was approved based on 38 C.F.R. § 3.1000(a)(5), which awards ‘only so much of the accrued benefit... as may be necessary to reimburse the person who bore the expenses of last sickness or burial.’ In this regard, VA has awarded the entire amount claimed by the appellant for the expenses related to the claimants last illness and funeral expenses, in accordance with the law. The appellant submitted $8,396.24 in bills relating to her mother’s last illness and funeral expenses that were already included in the reimbursed amount. This is the maximum amount allowable by law in the present circumstance. The Board notes that the appellant was paid the maximum amount under the provisions of 38 C.F.R. § 3.1000(a)(5). All items that she submitted in relation to her mother’s funeral expenses and regarding her mother’s last illness have been reimbursed at this time. Thus, the appeal for accrued benefits in excess of $ 8,396.24 is be denied. The Board is bound by the laws passed by Congress. No equities, no matter how compelling, can create a right to payment that has not been provided for by law. See Smith v. Derwinski, 2 Vet. App. 429 (1992). In sum, the legal authority governing this claim is clear and specific, and the Board is bound by such authority. The law is dispositive, and the claim must be denied as a matter of law. See Sabonis, 6 Vet. App. at 430. 02167-00000172 MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.