Citation Nr: 19196459 Decision Date: 12/27/19 Archive Date: 12/27/19 DOCKET NO. 17-24 744 DATE: December 27, 2019 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death in February 2016, an amount for pension benefits, effective October 21, 2014 that was withheld from payment pending a determination of incompetency. At the time of the Veteran’s death in February 2016, no final determination regarding incompetency or fiduciary had been made by the Agency of Original Jurisdiction (AOJ). 2. The Veteran did not have a surviving spouse or any legal dependents living in his household as defined under 38 C.F.R. § 3.57. 3. The Veteran created an irrevocable trust which designated the appellant as Trustee. There was a provision in the trust for income from the Trust Estate to be “paid to or applied for” the benefit of the Veteran during his lifetime. 4. Funds from the Irrevocable Trust were used to pay the Veteran’s expenses related to the assisted living facility. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5112, 5121; 38 C.F.R. §§ 3.272, 3.500, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty, to include during the World War II era, from June 1943 to January 1946. The Veteran died in February 2016. The appellant is the Veteran’s adult son. Entitlement to accrued benefits The appellant was previously awarded $300.00 for a nonservice-connected burial expense. The appellant, who is one of three sons, contends that the accrued benefits that were withheld should be payable to him as reimbursement for paying the Veteran’s assisted living expenses. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of such individual be paid as follows: Upon the death of a Veteran to the living person first listed below: (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 widow or remarried surviving spouse, to the children of the deceased Veteran. 38 U.S.C. § 5121 (a)(3); 38 C.F.R. § 3.1000 (a)(2). The term “child” is defined, for purposes of Veterans’ benefits, as an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or 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 approved educational institution. 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57. In order to be eligible for accrued benefits, therefore, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. See Burris v. Principi, 15 Vet. App. 348 (2001). 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 the last sickness and burial. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000(a)(5). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee’s death. 38 U.S.C. §§ 5121, 5101(a), (c); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The record reflects that the appellant is the adult child of the Veteran and the claim was filed in a timely manner. The Board finds however, that there were no accrued benefits due and unpaid at that time of the Veteran’s death. In a November 2015 rating decision, the AOJ determined the Veteran was entitled to nonservice-connected monthly pension benefits, effective October 21, 2014. In November 27, 2015, correspondence to the Veteran, VA requested additional information needed to determine his expenses in order to reduce his income. Specifically, expenses paid to an in-home care provider or care facility, in order to use those expenses to reduce his income. In a December 2015 response to that request, one of the Trustees reported the amount of monthly expenses paid for the assisted living facility where the Veteran resided. It was noted on the form that the funds were paid from the Irrevocable Trust fund. In a January 2016 response to a VA request for additional details on the reported Trust, the appellant provided a copy of a September 2006 Irrevocable Trust agreement (the Agreement) between the Veteran (as Grantor) and the appellant (as one of the Trustees). Per the Agreement, the net income of the Trust Estate was to be paid or applied for the benefit of the Grantor (the Veteran) during his lifetime. In correspondence date February 18, 2016, VA notified the appellant and the Veteran that benefits were awarded, effective from November 1, 2014, and monthly payments would begin effective February 1, 2016. The first payment would be received on or around March 1, 2016. The letter further noted that VA was withholding all retroactive benefits until a fiduciary for VA purposes has been assigned. On February 26, 2019, VA received notice that the Veteran had died on February [REDACTED], 2016. The appellant is beyond the age of 23 (born in January 1947) and the record does not suggest, nor does he contend, that he or any child of the Veteran became permanently incapable of self-support before reaching the age of 18. Therefore, the appellant is only eligible for so much of any accrued benefits as may be necessary to reimburse him for any expenses he bore for the Veteran’s last sickness and burial. The Veteran’s death certificate showed the cause of death as uremia and chronic renal failure which is the Veteran’s last sickness. The Veteran’s actual burial costs paid by the appellant was in the amount $1,574.62. In August 2016, VA paid the appellant the maximum allowance of $300.00 as provided under 38 U.S.C. § 2302. The record does not contain any additional evidence that the appellant paid any expenses specific to the Veteran’s last sickness. The appellant essentially argues that the accrued benefits due to him is the amount paid on behalf of the Veteran for fees associated with the assisted living facility where he resided. Even assuming those expenses were part of the Veteran’s last sickness, the Board finds the appellant is not entitled to reimbursement or payment for those expenses on any basis. It is clear from the Trust Agreement document that income from the Trust Estate was to be paid or applied for the benefit of the Veteran during his lifetime. The December 2015 expense report submitted by one the of the Trustees showed that the monthly expenses for the assisted living facility were paid from the Irrevocable Trust fund. Thus, the expenses were not borne by the appellant; rather they were paid out of income from the Trust fund. To the extent there may have been funds due an unpaid as a result of the February 2016 notification that benefits would be paid beginning March 1, 2016, those funds cannot be paid because the Veteran died in February 2016. The effective date of a discontinuance of pension by reason of death of a payee shall be the last day of the month before such death occurs. 38 U.S.C. § 5112(b)(1). An exception is available under 38 U.S.C. § 5310 which provides that a surviving spouse of a Veteran is entitled to a one-time benefit for the month of the Veteran’s death if at the time of the Veteran's death, the Veteran was receiving VA compensation or pension, i.e. a month-of-death payment. 38 C.F.R. § 3.20(b). Unfortunately, the Veteran died in February 2016 and the effective date of discontinuance of pension would be January 31, 2016. Even if there were accrued benefits payable as a “month of death” benefit, that benefit is available only to a surviving spouse. The Board is sympathetic to the appellant’s contention that he was expecting reimbursement for assisted living expenses pain on behalf of the Veteran. However, the appellant’s request for monetary benefits essentially relies upon an appeal for an award on an equitable basis (i.e., a sense of fairness and just due). The Board may only grant entitlement to VA benefits authorized by law and does not have authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (“no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). VA regulations simply do not provide a remedy under theories of equity. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate Counsel 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.