Citation Nr: 19192947 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 15-20 569 DATE: December 10, 2019 ORDER Entitlement to additional accrued benefits for the purpose of reimbursement of expenses regarding the appellant’s mother’s last sickness is denied. FINDINGS OF FACT 1. In a March 2011 rating decision, the appellant’s mother, A.W., was granted special monthly pension benefits based on a need for aid and attendance, effective December 1, 2009; payments to an assisted living facility were considered “unreimbursed medical expenses” that lowered her monthly income making her eligible for pension benefits. 2. At the time of her death in June 2011, A.W. was survived by the appellant, her daughter. The appellant does not meet the statutory definition of a child for Department of Veterans Affairs (VA) purposes. 3. VA paid the appellant accrued benefits of $11,947 in recompense for A.W.’s funeral expenses. 4. Although the appellant indicates she, and not her mother, paid the monthly fees for the assisted living facility where she resided on account of senile dementia (Alzheimer’s disease), the appellant has not provided evidence of medical expenses that were paid by her for her mother’s last sickness, specifically cardiopulmonary arrest and atherosclerotic heart disease. CONCLUSION OF LAW The criteria for entitlement to additional accrued benefits for the purpose of reimbursement of expenses regarding the appellant’s mother’s last sickness are not met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1942 to January 1946. He passed away in November 1985. The appellant is the only daughter of A.W., who passed away in June 2011, and the Veteran. By way of background, the Board of Veterans’ Appeals (Board) denied this claim in December 2018, and the appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court vacated the Board’s decision and remanded the claim pursuant to a Joint Motion for Remand (Joint Motion) filed by representatives of the appellant and the VA. In the Joint Motion, the parties agreed that vacatur and remand were warranted because the Board failed to provide an adequate statement of reasons or bases for relying on the VA Adjudication Procedures Manual M21-1MR (M21 Manual) to conclude that assisted living fees claimed by the appellant, which were reported as unreimbursed medical expenses in relation to her mother, A.W.’s, claim for special monthly pension, could not be claimed again, notwithstanding the fact that her mother passed away before those funds were completely released to her. The parties cited to Overton v. Wilkie, 30 Vet. App. 237 (2018) that held that it is insufficient for the Board to simply rely on an M21-1 provision without first independently reviewing the matter and providing a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. 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 surviving spouse be paid to the veteran’s children or to the person who bore the expense of last sickness or death. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). The definition of “children” for the purposes of eligibility for accrued benefits 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 is either: (1) under the age of 18; (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. 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57; see also Burris v. Principi, 15 Vet. App. 348, 35253 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006). If an individual qualifies for accrued benefits as the person who bore the expense of the final sickness and burial, that individual may only be paid up to the amount spent on the last sickness or burial. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a). In other words, an individual who is entitled to accrued benefits as the result of bearing the expense of the last sickness or death is not necessarily entitled to the entire amount of the accrued benefits. Instead, they may be paid only so much of the accrued benefits as will reimburse them for the expenditures related to the last sickness or burial. 38 U.S.C. § 5121 (a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). Non-medical expenses are not “expense of the last sickness” for accrued benefits purposes. See Caranto v. Brown, 4 Vet. App. 516, 518 (1993). In this case, in March 2011, the Regional Office (RO) granted A.W., the Veteran’s surviving spouse and the appellant’s mother, special monthly pension for aid and attendance, with benefits effective from November 30, 2009. The claim was granted based on a determination that A.W.’s medical expenses, including assisted living costs necessitated by progressing Alzheimer’s disease, reduced her countable income to $0. In a March 2011 letter to A.W., the RO informed her that she was entitled to receive $1,056 per month, with the first payment to be released April 1, 2011. She was also entitled to retroactive benefits for the 16 months of payments she had not yet received, from December 1, 2009 to March 2011. The payment of the retroactive benefits for the 16-month period prior to the issuance of her first payment was withheld pending an incompetency determination and appointment of a fiduciary. A.W. conceded incompetency and the appellant applied to be A.W.’s legal custodian in April 2011. The process to appoint the appellant as a fiduciary had not been completed by the time A.W. passed away in June 2011 and the 16 months of retroactive funds had not yet been released. In April 2012, the appellant filed an application for accrued benefits, to include funeral expenses and reimbursement for payment of A.W.’s assisted living facility fees. In January 2013, the RO awarded the appellant $11,947, the amount paid by her for A.W.’s burial expenses. The RO explained that accrued benefits could not be paid based on funds paid to the assisted living facility because those funds were used to determine A.W.’s eligibility for pension and A.W. would not have qualified for pension benefits if the assisted living funds were not used a continuing monthly deduction. The appellant appealed contending that she is owed the remainder of A.W.’s accrued benefits, specifically, the unpaid retroactive benefits ($16,896) less the funeral expenses ($11,947) equaling $4,949 to reimburse her for money she paid out of her personal account for bills from A.W.’s assisted living facility. Upon review of the evidence, the Board finds that the appellant is not an unmarried child under the age of 23, nor does she allege that she became incapable of self-support prior to the age of 18 years. Therefore, she does not qualify as the Veteran’s “child” for the purpose of receiving monetary benefits due and unpaid to her mother, the Veteran’s surviving spouse. Therefore, the central question becomes whether the payments to the assisted living facility that were used to calculate A.W.’s accrued benefits for special monthly pension purposes can also be claimed as payments made by the appellant as an expenditure related to A.W.’s last sickness. The Board finds that they cannot. Although the M21 is not binding on the Board, it does provide helpful guidance where the question, as here, references a term not defined in VA regulations, specifically “last sickness.” The M21 was created by a part of VA and pertains to VA claims. The question here is whether residence in the assisted living facility was a medical expense that was related to the appellant’s mother’s “last sickness” such that the appellant could be paid any owing accrued benefits as the individual who paid that expense. The M21 provides a definition for the term “last illness” that the Board finds adequate in the context of considering this claim. Last illness is generally understood as the period from the onset of the acute attack causing death up to the date of death; if death results from a lingering or prolonged illness, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person. See M21-1MR, Part V, Subpart 1, Chapter 3, Section D, para. 3(b). The Board finds no reason to consider this definition prejudicial or inapposite in this case. Here, A.W.’s death certificate indicates her immediate cause of death as cardiopulmonary arrest, due to or as a consequence of atherosclerotic heart disease. Although senile dementia contributed to her death, the record does not indicate any medical bills were paid by the appellant in relation to treatment for her immediate cause of death, specifically cardiopulmonary arrest and heart disease. The mere fact that the appellant’s mother was admitted to assisted living care and then subsequently passed away does not mean that the assisted living care is inherently an expense incurred as part of the appellant’s mother’s last sickness. Thus, the Board finds that the evidence does not establish that expenses were incurred by the appellant as part of A.W.’s last sickness and thus, no reimbursement is owed. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5) Additionally, and regardless of reference to definitions in the M21, even if it were assumed that the assisted living facility was in fact paid for by the appellant as a medical expense incurred as part of A.W.’s last sickness, this would result in a need for recalculation of A.W.’s income for pension purposes, resulting in an insufficient amount of accrued benefits to cover any portion of the $4,949 claimed. As explained, when calculating the monthly pension benefit to which A.W. was entitled, the RO relied on the evidence provided indicating that A.W., not the appellant, was paying the monthly assisted living fees. These fees were counted against A.W.’s reported income for the purposes of calculating the proper amount of monthly pension payments. When appropriately calculated, the inclusion of the assisted living facility fees resulted in A.W. having no income for pension purposes and thus in the determination that A.W. was entitled to monthly pension payments of $1,056. However, if the appellant, rather than A.W., paid the assisted living fees, then those fees should not have been factored into the calculation used to determine A.W.’s monthly pension entitlement, as the monthly payment for assisted living was not an expense being incurred by A.W., but instead was being paid by the appellant. Here, treating the assisted living facility fees as expenses incurred by the appellant as part of the last sickness, as opposed to expenses paid by A.W. during her life, would have the result of there being an insufficient amount of accrued benefits to pay anything to the appellant and would also mean that the appellant to date has been overpaid, as she has already been awarded reimbursement of $11,947 for funeral expenses. The availability of those funds as accrued benefits was based on the subtraction of the monthly assisted living fees from A.W.’s income. If A.W. was not in fact paying them, then they should not have been claimed as an unreimbursed expense reducing her countable income for pension purposes. Based on the foregoing, the preponderance of the evidence is against a finding that the appellant is entitled to additional accrued benefits beyond those already awarded for the purpose of reimbursement for funeral expenses. While the Board recognizes the expenses paid by the appellant and the frustration the appellant undoubtedly feels, it is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). As there is no additional entitlement to benefits demonstrated under the law, the claim must be denied. C. BANISTER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Boyd Iwanowski, 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.