Citation Nr: 19119034 Decision Date: 03/15/19 Archive Date: 03/15/19 DOCKET NO. 16-44 169 DATE: March 15, 2019 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran’s surviving spouse (the Appellant’s mother) died in October 2013, only a few weeks after her claims for accrued benefits and service connection for the cause of the Veteran’s death were granted. 2. The Appellant is the Veteran’s son over the age of 18 and 23, and he was not rendered permanently incapable of self-support prior to reaching the age of 18. 3. The Appellant did not demonstrate that he paid expenses for the last sickness and burial of the Veteran’s surviving spouse. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101(4)(A), 5121 (2012); 38 C.F.R. §§ 3.1000 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision that denied entitlement to accrued benefits. By way of background, after the Veteran’s death in February 2009, the Veteran’s surviving spouse filed a claim for accrued benefits and for service connection for the cause of the Veteran’s death. In a rating decision dated October 3, 2013, the Veteran’s pending claim for a total disability rating based on individual unemployability (TDIU) was granted for accrued benefits purposes. Service connection for the cause of the Veteran’s death was also granted. Unfortunately, on October [Redacted], 2013, the Veteran’s surviving spouse passed away. The letter notifying the Veteran’s surviving spouse of the October 2013 decision was not sent until December 27, 2013, two months after her death. The present claim for accrued benefits was filed by the son of the Veteran and of the Veteran’s surviving spouse who is also a co-executor of the estate of the Veteran’s surviving spouse. He alleges that he is entitled to accrued benefits and, specifically, the disbursement of funds related to the October 2013 decision. Unfortunately, this claim must be denied. The law provides for the payment of certain accrued benefits upon the death of a VA beneficiary. 38 U.S.C. § 5121. Accrued benefits are the monetary sums which a beneficiary was legally entitled to receive from VA at the time of her death that were yet unpaid. Upon the death of a beneficiary, all benefits which are properly payable are paid to the beneficiary’s spouse, if living, then to the beneficiary’s children in equal shares, and then to the beneficiary’s dependent parents in equal shares. 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000(a). The definition of “children” in the context of 38 U.S.C. § 5121 is not the commonly understood or dictionary definition. Rather, “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 v. Principi, 15 Vet. App. 348, 352-53 (2001). Unfortunately, the Appellant does not qualify as a “child” as required under the regulation. The record indicates that the Appellant is not under 18 or 23 years old, and there is no evidence to suggest that he was rendered permanently incapable of self-support prior to reaching age 18. Accordingly, he is not eligible to receive the accrued benefits which were owed at the time of the death of the Veteran’s surviving spouse. The Appellant specifically asserts that he is entitled to the benefits in question as executor of the estate of the Veteran’s surviving spouse. However, the law precludes payment of these benefits to an estate. In Wilkes v. Principi, 16 Vet. App. 237 (2002), the United States Court of Appeals for Veterans Claims (Court) affirmed a Board decision that found that a veteran’s estate was not eligible to receive accrued benefits under 38 U.S.C. § 5121. The Court relied on an October 1997 VA General Counsel advisory opinion that found that an estate does not fall within the class of individuals eligible to receive accrued benefits. Wilkes, 16 Vet. App at 240; see also VAOPGCADV 31-91 (citing VAOPGCPREC 22-92). The Court also reviewed the legislative history of the provisions in question and found that Congress intended that accrued benefits be paid only to the eligible individuals set out above. See S. Rep. No. 227 (1953), reprinted in 1953 U.S.C.C.A.N. 1665, 1666. Accordingly, the Board finds that the Appellant is not entitled to accrued benefits either as a “child” of the Veteran’s surviving spouse or as executor of her estate. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, the preponderance of the evidence is against the claim and, thus, the doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. The Board has considered whether reimbursement of expenses paid for last sickness and burial is warranted under 38 U.S.C. § 5121(a)(6). Indeed, in all cases not set out above, accrued benefits will be paid in as much as it is necessary to reimburse a person who bore expenses of the last sickness and burial. See 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5); see Caranto v. Brown, 4 Vet. App. 516, 518 (1993) (this excludes reimbursement from accrued benefits for non-medical expenses). However, the Appellant has not reported paying any of the expenses related to the last sickness and burial of the Veteran’s surviving spouse. To the contrary, his sole argument is that accrued benefits are owed to him as co-executor of the estate of the Veteran’s surviving spouse. Thus, as the Appellant did not demonstrate that he paid such expenses, the Board finds that reimbursement for such expenses is not warranted. The Board acknowledges that the circumstances resulting in a lack of payment of benefits to the Veteran’s surviving spouse prior to her death are regrettable. However, the Board is bound by the applicable law and regulations as written. See 38 U.S.C. § 7104(c). As discussed, payment to the Appellant as a surviving “child” or to the estate of the Veteran’s surviving spouse is not authorized under 38 U.S.C. § 5121, and there is no other avenue pursuant to which the Board can legally award the Appellant the payment of monies due and unpaid at the time of death of the Veteran’s surviving spouse. Moreover, the Board has no authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994); Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) that held that no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress). (continued on next page) For these reasons, the Board finds that the appeal must be denied. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel