Citation Nr: 19167489 Decision Date: 08/29/19 Archive Date: 08/29/19 DOCKET NO. 15-15 200 DATE: August 29, 2019 ORDER Entitlement to the retroactive payment of withheld death pension from August 1, 2008 to September 1, 2010, for accrued benefits purposes, is denied. FINDING OF FACT The appellant was not shown to be a surviving spouse, child, or parent of the beneficiary and did not incur expenses related to last sickness and burial. CONCLUSION OF LAW The criteria for basic eligibility for accrued benefits are not met. 38 U.S.C. §§ 101, 1313, 1542, 5121; 38 C.F.R. §§ 3.3, 3.22, 3.24, 3.57, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1941 to October 1945. He died in December 1987. The record reflects the Veteran’s spouse is also deceased as of January 2011 and the appellant is the child of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 decision by the Department of Veterans Affairs (VA) Regional Office which denied the appellant’s claim for accrued benefits. The appellant was provided with a hearing before the undersigned Veterans Law Judge on February 2018. A copy of the transcript has been associated with the claims file and reviewed accordingly. It is noted that the appellant contends that she is entitled to accrued benefits that were due to her mother, as the surviving spouse, at the time of her death in January 2011. The appellant testified that her mother received an award of death pension for the death of the Veteran in an August 2010 rating decision. The effective date of the Award was August 1, 2008. However, it is also noted that her mother was proposed as incompetent that same month and that retroactive entitlement to the award from August 1, 2008 to September 1, 2010 was withheld pending the appointment of a fiduciary. Monthly payments for that award commenced September 1, 2010 until her death in January 2011. As such, the applicable period that is contested by the appellant for retroactive payment is limited to August 1, 2008 to September 1, 2010. It appears that, shortly after proposing incompetency the appellant’s mother indicated that she would not contest this finding and that she desired that the appellant be appointed as fiduciary. In an October 2010 administrative decision, the RO found the appellant’s mother to be incompetent. Although the appellant’s representative claims that the subsequent issue of appointment of a fiduciary was delayed for several years, a review of the claims file shows that within three months of the finding of incompetency, arrangements were made for a fiduciary examination in January 2011. However, due to the death of the appellant’s mother, this examination was rendered moot, as was also the issue of the appointment of a fiduciary. As such, a fiduciary was never appointed and the funds from August 1, 2008 to September 1, 2010 were never released. Therefore, the appellant has claimed entitlement to these previously unreleased funds as accrued benefits, to which it is uncontested that the appellant’s mother had an entitlement prior to her death. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121 (2012). 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 a beneficiary, be paid 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), 5121(a)(2) (2012); 38 C.F.R. § 3.1000 (a) (2018). 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 last sickness and burial. 38 U.S.C. § 5121 (a)(6). Applications for accrued benefits must be filed within one year after the date of death, which has been met in this case, as the claim was filed 2 months after the death of the appellant’s mother. See 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). The definition of “children” in section 5121 is not the commonly understood definition, but 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) (2012); 38 C.F.R. § 3.57 (2015); Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006). There is no indication in the claims file, nor has the appellant alleged, that the appellant meets any of the criteria for consideration as a spouse, child, or dependent parent of the appellant’s mother. Therefore, the appellant’s only standing for recovery of the unpaid death pension funds from August 1, 2008 to September 1, 2010 rests upon a showing that she is entitled to so much of the accrued benefits as may be necessary to reimburse the expense of last sickness and burial. Documentation in the claims file reveals that the appellant’s brother, who is not a party to the current appeal, paid the costs associated with the burial. There is no indication that the appellant bore any expense in that regard, therefore, such expenses would not be for consideration of accrued benefits. Additionally, the appellant has submitted copies of tax preparation services and other non-medical expenses provided to the appellant’s mother in the last months of her life. However, these expenses may not be considered for accrued benefits. Therefore, the inquiry now turns upon a showing that the appellant bore expenses relating the last sickness. In this regard, the appellant has submitted several medical documents, namely bank records showing payment for ENT Allergy Associates; Telehealth Services, and dental expenses. There was no indication that treatment at any of these facilities were related to the arrythmia, congestive heart failure, or cardiac arrest from which the appellant’s mother died as shown on the death certificate of record. The aforementioned records submitted by the appellant do not appear to show treatment for conditions that would have been directly or indirectly responsible for her mother’s death as confirmed by the death certificate. Additionally, the appellant, despite being requested to do so by the RO in a February 2019 correspondence, indicated in March 2019 that she had nothing further to submit, to include corroborating evidence of herself as the payor for her mother’s treatment. As such, there is no further showing that the appellant actually bore expenses relating the last sickness. Accordingly, the appellant does not meet any of the aforementioned criteria for entitlement to accrued benefits. Thus, entitlement to this benefit is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dodd, 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.