Citation Nr: 19148902 Decision Date: 06/21/19 Archive Date: 06/21/19 DOCKET NO. 18-29 928 DATE: June 21, 2019 ORDER Entitlement to accrued benefits in excess of $3,028.77 is denied. FINDINGS OF FACT 1. A retroactive award of $23,320 in special monthly pension benefits was due and unpaid at the time of the Veteran’s death in July 2016. 2. There is no evidence that the appellant is under the age of 18 years, that she became permanently incapable of self-support before the age of 18, or that she is under 23 years of age but still pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs (VA). The appellant is an adult daughter of the Veteran. 3. The appellant is in receipt of $3,028.77 of accrued benefits to reimburse for burial expenses. 4. The appellant has not established that she bore expenses of the Veteran’s last sickness and/or burial in excess of $4,075.77 ($4075.77 in receipts - $1047 paid to the Veteran’s widow to assist with funeral and burial costs = $3028.77) CONCLUSION OF LAW The criteria for entitlement to accrued benefits in excess of $3,028.77 have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1959 to July 1965 with over 13 years of additional service. The Veteran died in July 2016. His surviving spouse died in October 2016. The appellant is the adult daughter of the Veteran. Entitlement to accrued benefits in excess of $3,028.77 The appellant seeks accrued benefits that were due and unpaid to her father at the time of his death in July 2016. She was appointed as his fiduciary shortly before his death. See Statement in support of claim, July 2016. The Agency of Original Jurisdiction (AOJ) indicates within the claims file that the retroactive award of special monthly pension due to the Veteran at the time of his death was $23,320 based on a monthly rate of $2,120 from August 2015 through June 2016. VA calculations worksheet, May 2017. In May 2017, VA’s Pension Management Center issued a decision awarding the appellant $3,028.77 in accrued benefits, based on evidence that she bore burial expenses on behalf of the Veteran. The notification letter explains that although she submitted evidence of $4,075.77 in expenses, the $1,047 previously paid in burial expenses to the Veteran’s spouse would be subtracted from the amount due. The appellant alleges that she, or alternatively the Veteran’s estate, is due the remainder of the full retroactive award that was due to the Veteran prior to his death. Accrued benefits that were due and unpaid at the time of a Veteran’s death may be paid to certain surviving beneficiaries only. To be an eligible accrued-benefits claimant upon a Veteran’s death, a claimant must be (1) the Veteran’s spouse; (2) the Veteran’s child; or (3) the Veteran’s dependent parents. 38 U.S.C. § 5121(a)(2). If no eligible survivor is alive at the time of a Veteran’s death, then accrued benefits that are due and unpaid may be paid to any person “who bore the expense of the last sickness and burial,” but “only so much of the accrued benefits may be paid as may be necessary to reimburse the person.” 38 U.S.C. § 5121(a)(6). In this case, although the appellant is the daughter of the Veteran, she is no longer a child but an adult. For the purpose of entitlement to accrued benefits, a beneficiary “child” is expressly 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. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. Although the year of the appellant’s birth does not appear to be of record, there is no indication that she is a child under the age of 18, that she is under the age of 23 and pursuing a course of instruction at an approved educational institution, nor that she became permanently incapable of self-support before the age of 18, nor does she so contend. Instead, the record indicates that the appellant is an adult child of the Veteran. The Veteran reported no unmarried children, or any child who became permanently unable to support him or herself before reaching age 18, on a VA Form 21-686c, Declaration of Status of Dependents submitted in September 2015. Indeed, days before his death, the Veteran expressed his intention to appoint his daughter, the appellant, as his fiduciary to manage his VA benefits. She is also named as an “agent” and/or “attorney-in-fact” on behalf of the Veteran in a durable general power of attorney executed by the Veteran prior to his death. Power of attorney, May 2014. Thus, although her date of birth is not of record, the body of evidence indicates that she was a capable adult child of the Veteran at the time of his death. However, as an adult, she does not meet VA’s definition of a spouse, child, or dependent parent of the Veteran, and she can therefore only qualify for receiving his accrued benefits if she establishes that she bore the expense of the Veteran’s last sickness and/or burial. See 38 U.S.C. § 5121(a)(6). The Board is limited in its ability to grant any benefits beyond those incurred by the appellant to cover the cost of the Veteran’s final illness and burial. This is the only way the appellant can claim the funds owed to the Veteran at the time of his death, and she may only claim those funds up to the amount of final expenses that she paid. While she asserts that she, or the Veteran’s estate, is due the full retroactive award that was due to the Veteran prior to his death, this is precluded by law which establishes the allowed beneficiaries in these cases. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit have repeatedly affirmed that accrued benefits claims by persons other than those listed in section 5121(a) are not viable as a matter of law. See, e.g., Youngman v. Shinseki, 699 F.3d 1301 (Fed. Cir. 2012) (denying accrued benefits to a deceased Veteran’s fiduciary for distribution to the Veteran’s heirs); Pelea v. Nicholson, 497 F.3d 1290 (Fed. Cir. 2007) (denying accrued benefits to deceased claimant’s estate); Morris v. Shinseki, 26 Vet. App. 494 (2014) (holding that the Veteran’s brother and fiduciary was not an eligible claimant for accrued benefits); Caranto v. Brown, 4 Vet. App. 516 (1993) (holding it was necessary to determine whether a Veteran’s daughter was a “child” per VA’s definition for purposes of accrued benefits as she was otherwise ineligible to pursue an accrued benefits claim). Thus, the law is well-settled. The appellant is not an eligible claimant for accrued benefits merely because she is the daughter of the Veteran or stood as his fiduciary at the time of his death. The estate is also not an eligible claimant, to the extent the appellant’s claim can be construed to be on behalf of the Veteran’s estate. The appellant does not meet the definition of beneficiary to whom accrued benefits may be paid under 38 U.S.C. § 5121(a)(2) or (a)(3) as although the daughter of the Veteran, she is no longer a child. Therefore, she may only receive so much of the accrued benefits as necessary to reimburse her for the expense she paid of the Veteran’s expenses for his “last sickness and burial.” 38 U.S.C. § 5121(a)(6). This amount was already paid to the appellant in the amount of $3,028.77. She does not assert that she is entitled to any reimbursement in excess of that amount for expenses she paid for the Veteran’s last illness or burial. Thus, the record includes no evidence that the appellant incurred expenses related to the Veteran’s care during his last sickness or burial in excess of that for which she has already been paid, and she is not entitled to the remainder of the accrued benefits due to her father at the time of his death on any other basis. 38 U.S.C. § 5121. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald, 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.