Citation Nr: 20005893 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 19-16 075 DATE: January 23, 2020 ORDER As the appellant is a proper accrued benefits claimant for expenses incurred related to the Veteran's last sickness and burial, the request for substitution is granted. FINDINGS OF FACT 1. The Veteran died in September 2015. 2. The appellant was not a dependent child of the Veteran at the time of his death. 3. In October 2015, the appellant, who is the Veteran's daughter, timely filed a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. 2. The appellant paid expenses related to the Veteran’s last sickness or burial. CONCLUSION OF LAW The criteria for substitution upon the Veteran’s death are met. 38 U.S.C. § 5121, 5121A. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1945 to January 1947. The Veteran died in September 2015. The appellant is the daughter of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2016 administrative determination of a Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin, that denied the appellant’s claim for substitution of claimant/accrued benefits. The appellant contends that she is entitled to substitution as claimant in the Veteran’s appeal for VA non-service-connected benefits pending at the time of his death. In October 2015, the appellant, who is the Veteran's adult daughter, timely filed a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. Substitution is the right of a living person to submit additional evidence in support of a deceased claimant's pending claim or appeal, for purposes of accrued benefits. Substitution applies to the same benefits for which accrued benefits are payable, i.e., periodic monetary benefits (other than insurance and Servicemember's indemnity) such as compensation, pension, Dependency and Indemnity Compensation (DIC), and Chapter 18 benefits. See 38 C.F.R. § 3.1010. The rules pertaining to the award of accrued benefits apply to substitution claims. 38 C.F.R. § 3.1010(a). Upon the death of a payee of VA benefits, periodic monetary benefits to which he or she was entitled to, on the basis of evidence in the file at the date of death (accrued benefits) may be paid to certain parties. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). For accrued benefits to be granted, the recipient must have been owed money at the time of his death, or had a claim pending at the time of his death, which is later granted and retroactive monetary benefits made available. Applications for accrued benefits and substitution must be filed within one year after the date of death. 38 U.S.C. § 5121(c); 5121A(a). Persons eligible for such payments (which are paid upon the death of the Veteran to the first living person listed) are: (i) the spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. § 3.1000(a)(1). They are also payable upon the death of a surviving spouse or remarried surviving spouse to the Veteran's children. 38 C.F.R. § 3.1000(a)(2). The term "child" means an unmarried person who is a legitimate child, a legally adopted child, a stepchild who was a member of the Veteran's household at the time of death, or an illegitimate child (acknowledged by the Veteran either in writing or via court ordered child support) of the Veteran; and is under the age of 18 years; or before reaching the age of 18 years became permanently incapable of self-support; or after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. Accrued benefits may also be paid as may be deemed necessary to reimburse the person who bore the expenses of the last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Payments to persons who bore the expense of last sickness or burial shall be limited to the amount necessary to reimburse such persons for the expenses of last sickness and/or burial. 38 C.F.R. § 3.1000(a). As discussed above, accrued benefits, other than those necessary to reimburse the person who bore the expenses of last sickness and burial, may only be paid to certain beneficiaries, including a spouse, the Veteran's children or the Veteran's dependent parents. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). Here, the evidence does not establish the appellant either was under 23 years of age, or an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age. Accordingly, for purposes of this decision, the appellant is not considered the Veteran's "child" under 38 C.F.R. § 3.1000 (d). Although the appellant is the daughter of the Veteran, she does not meet the regulatory definition of a "child" for purposes of determining eligibility for VA accrued benefits and substitution. Consequently, the appellant does not qualify for substitution and receipt of accrued benefits based on her familial relationship with the Veteran. As discussed above, accrued benefits may also be paid as necessary to reimburse the person who bore the expense of the Veteran's last sickness or burial up to the amount of the accrued benefit due and owed. 38 C.F.R. § 3.1000 (a)(5). The appellant submitted a detailed invoice from the funeral home, a life insurance assignment form, and receipt of payment for $12,325.99 in November 2015. These records indicate that the Veteran’s funeral and burial expenses were paid by the appellant with the proceeds of a life insurance policy for which she is the beneficiary. As the appellant timely filed a request to substitute and paid expenses related to the Veteran's last sickness and burial, she meets the basic criteria to substitute as claimant for the appeal pending at the time of the Veteran's death. (Continued on the next page)   For the purpose of reimbursement of expenses relating to the Veteran’s last sickness and burial, the Board finds that the appellant is a proper substitute for the appeal pending at the time of the Veteran's death. 38 U.S.C. § 5121A. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. E. VanValkenburg, 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.