Citation Nr: 19115201 Decision Date: 03/01/19 Archive Date: 02/28/19 DOCKET NO. 15-10 526 DATE: March 1, 2019 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The record does not show that the appellant bore any additional expenses of the F.A.’s last sickness and burial beyond those for which she has already been reimbursed. CONCLUSION OF LAW The criteria for entitlement to payment of accrued benefits have not been satisfied. 38 U.S.C. §§ 5107, 5121 (2012); 38 C.F.R. §§ 3.1000, 3.1010 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in November 2008. His surviving spouse, F.A., was awarded entitlement to an aid and attendance allowance pursuant to an August 2010 rating decision. She died in May 2011. The appellant is their daughter. She testified at an August 2018 Board videoconference hearing. The hearing transcript is of record. Entitlement to accrued benefits. The appellant contends that payment of accrued benefits is warranted based on the August 2010 grant of special monthly pension based on the need for aid and attendance. While special monthly pension was granted effective November 1, 2008, payment was withheld based on a proposed finding of incompetency and the Veteran’s spouse died prior receiving payment of those benefits. Periodic monetary benefits under laws administered by VA, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, will, upon the death of such person, be paid as follows: In pertinent part, upon the death of a surviving spouse or remarried surviving spouse, to the veteran’s children. 38 U.S.C. § 5121 (a)(2),(3),(5) (2012); 38 C.F.R. § 3.1000 (a),(2) (2018). While the appellant is the Veteran’s adult daughter and fiduciary of her mother’s estate, for purposes of determining eligibility for payment, a “child” of the veteran must be unmarried and must be either under the age of 18, have become permanently incapable of self- support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4)(A)(ii); 38 C.F.R. §§ 3.57 (a)(1), 3.1000(d)(2). The controlling law with respect to accrued VA benefits provides that accrued benefits are only paid to certain recipients rather than to the payee’s estate. In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of the last sickness and burial. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The record indicates that the appellant is the adult daughter of the Veteran. There is no evidence or argument indicating that the appellant is under the age of 18, became permanently incapable of self-support before the age of 18, or that she is between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution to qualify as a “child” for VA purposes. The Board finds, therefore, that she is only entitled to so much of the accrued benefit as necessary to reimburse the amounts she paid toward the Veteran’s last sickness and burial. The record shows that the appellant has already been reimbursed for all eligible burial expenses which have been submitted. The appellant indicated in a December 2012 statement that $6,122.00 was paid toward F.A.’s funeral and burial expenses. A March 2011 statement of funeral goods and services from Guttermand Warheit, however, shows that the majority of those costs were pre-paid, and a July 2011 report of contact with Gutterman Warheit Funeral Home shows that the appellant had paid the remaining balance of $852.00. The appellant can only be reimbursed for the expenses of last sickness or burial which are shown to have been paid by her. Accrued benefits in the amount of $852.00 for reimbursement of the portion of the burial costs paid by the appellant were awarded to her in a July 2011 decision, and she has not submitted evidence showing that she paid amounts in excess of $852.00 toward the funeral and burial costs. The appellant has not identified additional amounts paid toward the F.A.’s last sickness. While the appellant submitted a June 2011 letter from Emeritus at Deer Creek, indicating that payments were received from her for the benefit of F.A. in the amount of $1,430.00 a month, the appellant clarified in hearing testimony that those amounts were paid out of her mother’s Social Security benefits, and while she wrote the checks, it was F.A.’s money. The Board notes that there was some prior confusion as to whether the appellant paid for F.A.’s assisted living care. In a July 2011 statement, the appellant indicated a home equity line of credit was taken out to pay for F.A.’s care. However, assisted living costs in the amount of $1,430.00 a month were used in calculating F.A.’s countable income when she was awarded death pension benefits. Basic entitlement to death pension exists only if, among other things, the claimant’s countable income is not in excess of the maximum annual pension rate specified by law. 38 U.S.C. § 1521 (a). For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were “in excess of 5 percent of the applicable maximum annual pension rate … in effect during the 12-month annualization period in which the medical expenses were paid.” See 38 C.F.R. § 3.272 (g)(1)(iii); 38 U.S.C. § 1503 (a)(8) (2018). Thus, without the deduction of unreimbursed medical expenses paid by the F.A., she would not have been entitled to death pension benefits, and there would be no existing accrued from which reimbursement could be made. The appellant, however, confirmed in a April 2013 statement and during Board hearing testimony that assisted living costs were paid out of her mother’s funds. During the August 2018 Board hearing, the appellant reported while F.A.’s Social Security paid for her assisted living costs, she paid for all costs not covered by Social Security, such as haircuts, telephone bills, and incidentals. Unfortunately, such incidentals do not qualify as an expense of last sickness and burial. Under relevant provisions, non-medical expenses should be excluded from reimbursement for last sickness. See Caranto v. Brown, 4 Vet. App. 516, 518 (1993). The appellant contends in hearing testimony that she is entitled to accrued benefits because her mother was entitled to them, and they were actually awarded to her. The record shows that the appellant did make efforts to be appointed as a fiduciary for the appellant shortly after the award of benefits, and this was accomplished just prior to F.A.’s passing. While the Board is sympathetic to the appellant’s circumstances, her claim for the award of the full amount of accrued benefits lacks legal merit as she has no entitlement under the law. She is not the “child” of the Veteran for purpose of receiving benefits and can only be awarded the amount necessary to reimburse her for the expenses of last sickness and burial. Accordingly, the appeal for an increased amount of accrued benefits is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung