Citation Nr: 20006175 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 18-41 227 DATE: January 28, 2020 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT 1. The appellant does not satisfy the statutory definition of “child” under the governing statute to be eligible for the payment of accrued benefits. 2. The appellant has not shown that she bore the expense of the Veteran’s surviving spouse’s last sickness and burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101 (4)(A), 5121; 38 C.F.R. §§ 3.57, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1944 to March 1945. She died in July 2016. The Veteran’s surviving spouse died in November 2016. The appellant is the adult daughter of the Veteran and her surviving spouse. This appeal comes before the Board from a July 2017 decision denying entitlement to accrued benefits. In July 2019 the Board remanded this matter for additional development. Such has been completed and this matter is returned to the Board for further consideration. Entitlement to accrued benefits is denied. In a January 2016 rating decision, the Veteran was awarded non-service-connected pension benefits, effective August 6, 2015, but a finding that the Veteran was incompetent to handle funds was proposed as well. In a February 2016 statement the Veteran agreed with the proposed finding of incompetency and requested the appellant be his fiduciary. In a May 2016 rating decision, the Veteran was found to be incompetent to handle funds. The Veteran died in July 2016, before all of the benefits due to her were paid. The Veteran’s surviving spouse filed a claim for accrued benefits in August 2016. He subsequently died in November 2016 before his claim could be adjudicated. While the appellant seeks the entire amount due at the time of the Veteran’s death (essentially retroactive benefits), she is not entitled to that amount. The appellant who is not a “child” is limited to the role of fiduciary. In this regard, the Board notes that generally a veteran’s fiduciary does not have standing or authority to receive accrued benefits that were unpaid at the veteran’s death as provided in 38 U.S.C. § 5121 (a). See Youngman v. Shinseki, 699 F.3d 1301, 1304 (Fed. Cir. 2012) (holding that, by statute, § 5121(a) limits the payment of benefits due at the veteran’s death to a surviving spouse or child or dependent parent. No payment can be made to the veteran’s estate, or any heir other than as designated in § 5121(a)). However, she may be eligible for accrued benefits to reimburse her for the actual expense borne as a result of the Veteran’s last sickness and burial. Persons eligible for accrued benefits 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) (2018). The term “child” is defined under 38 C.F.R. § 3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction at the time of the payee’s death. 38 C.F.R. § 3.1000 (a)(1). Here, the appellant was born in August 1950. There is no evidence that she has at any time pertinent to this appeal qualified as a “child” as defined for purposes of accrued benefits under 38 C.F.R. § 3.1000. Indeed, she is over 18 years of age, and there is no evidence that she became incapable of self-support prior to age 18. Nevertheless, accrued benefits may also be paid to reimburse a person who bore the expenses of the last sickness and burial of a payee. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5). As such, although the appellant does not qualify as a child for substitution purposes, she may recover accrued benefits as may be necessary to reimburse her for expenses she incurred in connection with the Veteran’s last sickness and burial. See 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5). It is noted that a list of medical expenses submitted in January 4, 2018 contained the names of both the Veteran and his surviving spouse and appear to have been from their 2015 Federal income tax statement. There is no indication that these bills were paid by the appellant. The Board remanded this matter in July 2019 to afford the appellant an opportunity to submit proof of payments associated with the Veteran’s (appellant’s mother) last sickness and burial in order to substantiate her claim for accrued benefits. Thereafter, the RO sent the appellant a letter dated August 2, 2019 requesting that she provide reliable evidence that she made payments related to her mother’s last sickness and burial, with such evidence to include actual bills, copies of cancelled checks, or other evidence to substantiate her claim that she bore any costs associated with her mother’s last sickness and burial. The appellant did not respond to this letter and the period for response has ended. Therefore, the evidence necessary for VA to determine whether an award may be properly made has not been submitted for consideration. 38 U.S.C. § 5121 places the burden on the claimant to produce the evidence necessary for VA to determine whether an award from accrued benefits may be properly made. As there is inadequate evidence to the establish who paid for the funeral and last medical expenses, the Board is unable to determine if the appellant incurred expenses due to the last sickness and burial of the Veteran. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The Board acknowledges the appellant’s contentions and is sympathetic to her claim, but it is bound by the law, and this decision is dictated by the relevant statutes and regulations. As the law is dispositive, the appellant’s claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.