Citation Nr: 20008490 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 16-02 868 DATE: January 31, 2020 ORDER Entitlement to accrued benefits in excess of $649.00 for reimbursement of last sickness/burial expenses is denied. FINDINGS OF FACT 1. The appellant, as an adult, non-dependent child of the Veteran, does not qualify as a “child,” as defined by VA regulation, to whom accrued benefits owed to the Veteran’s surviving spouse may be paid. 2. The appellant’s reported expenses do not qualify as expenses related to the last sickness or burial of her mother, the Veteran’s surviving spouse. CONCLUSION OF LAW The criteria for accrued benefits in excess of $649.00 for reimbursement of last sickness/burial expenses have not been met. 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1700, 3.1702, 3.1705. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1943 to February 1946 and from August 1950 to August 1951, with additional service in the National Guard. Following the Veteran’s death in March 1994, his surviving spouse (K.E.F.) was granted entitlement to aid and attendance allowance by way of a January 2013 rating decision. A February 2013 rating decision determined that K.E.F. was not competent to handle disbursement of funds. Later in February 2013, a Fiduciary Agreement (via a VA Form 21-4703) was executed in order to appoint the appellant (i.e., the adult daughter of the Veteran and K.E.F.) as K.E.F.’s fiduciary. Thereafter, K.E.F. died in April 2013. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied accrued benefits. The case was previously before the Board in November 2018 when it was remanded for further development. Entitlement to accrued benefits in excess of $649.00 for reimbursement of last sickness/burial expenses Periodic monetary benefits authorized under laws administered by VA, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid to the surviving spouse, surviving child, or dependent parents. The appellant does not meet the definition of “child” for VA purposes (pursuant to 38 U.S.C. § 101(4)(A) and 38 C.F.R. § 3.57(a)(1)) and therefore does not qualify under these criteria. 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)(5); 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. § 3.1003(a). Therefore, although the appellant does not qualify as a child for accrued benefits purposes, she may recover accrued benefits as may be necessary to reimburse her for expenses she personally incurred in connection with the payee’s last sickness and burial. See 38 U.S.C. § 5121(a)(6) (2012); 38 C.F.R. § 3.1000(a)(5). For a survivor to be entitled to accrued benefits, the payee must have had a claim pending at the time of his or her death or have been entitled to benefits, accrued and unpaid, under an existing rating or decision. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Although the term “last sickness” is not defined under VA law or regulations, a similar term is defined in the VA Adjudication Procedures Manual, M21-1MR. Under M21-1MR, Part V, Subpart 1, Chapter 3, Section D, 3(b), the term “last illness” is defined as the period from the onset of the acute attack causing death up to the date of death. If death resulted 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. At the time of K.E.F.’s death in April 2013, she was entitled to accrued and unpaid benefits under the January 2013 rating decision which had granted her entitlement to an aid and attendance allowance. In a February 2013 rating decision, K.E.F. was found not competent to handle the disbursement of funds. K.E.F. passed away before being paid the benefit. Following K.E.F.’s death in April 2013, the appellant filed the current claim for entitlement to accrued benefits in May 2013, alleging that she was due to be reimbursed for the following expenses that she had paid for K.E.F.: $649.00 for cremation expenses, $7,920.00 for medical equipment, $200.00 for ambulance transportation, and approximately $9,000.00 for a handicap bathroom renovation. The appellant also alleged that, at the time of her death, K.E.F. had the following outstanding debts: $1,434.00 for an emergency room visit and $34,000.00 for an in-home caregiver. The appellant’s claim for accrued benefits was denied in January 2014. In her January 2014 notice of disagreement, the appellant noted that, in addition to the bathroom renovations that were completed to allegedly accommodate K.E.F.’s disabilities, she also had to obtain a hospital bed and a wheelchair for K.E.F. In a November 2015 decision, the appellant was awarded accrued benefits in the amount of $649.00 for the aforementioned cremation expenses. The appellant has perfected an appeal as to the matter of entitlement to accrued benefits in excess of this $649.00 for reimbursement of last sickness and burial expenses for K.E.F. The appellant submitted evidence to show that she took out a $7,920.00 loan from Springleaf Financial, with a handwritten note on the loan stating: “Loan made for Mom’s medical equipment”; however, there is no evidence to document that the appellant used this money to purchase medical equipment for K.E.F. In addition, the appellant submitted evidence to show that K.E.F. received a $200.00 bill for ambulance transportation and that such was paid by credit card; however, there is no evidence to document that the appellant is the one who paid this amount. Furthermore, the appellant submitted evidence to show that she paid $9,011.39 in bathroom renovation costs in March 2013. However, there is no evidence to document that these renovation expenses were medically necessary for the care of K.E.F. Finally, the appellant submitted evidence to show that K.E.F. received a $1,434.00 bill for an emergency room visit in April 2013; however, there is no evidence to document that the appellant ever paid this amount. In the January 2014 notice of disagreement, the appellant asserted that she paid for a hospital bed and wheelchair, but she did not submit any evidence to document those expenses. As the Board noted in the November 2018 remand, regarding the $34,000.00 the appellant asserts is owed to her for K.E.F.’s in-home caregiver expenses, the appellant has been notified (to include in the December 2015 statement of the case) that she cannot be reimbursed for this amount, because this amount was already used to reduce K.E.F.’s countable income when calculating her award of VA benefits. Unreimbursed medical expenses used to calculate the Veteran’s spouse’s entitlement to a pension with aid and attendance may not be claimed as payments made by the appellant due to the last sickness. See VA Manual, Part V, Subpart I, Chapter 3, Section D, 3(c). Regarding several non-medical expenses claimed by the appellant during the appeal period (including an alleged $950.00 payment to American Veterans Advocacy, payments totaling $585.00 to Bradham Insurance Agency, and a $260.56 payment to a Days Inn and Suites hotel), the Board notes that the appellant has been notified (to include in the December 2015 statement of the case) that these expenses do not qualify as “last sickness and burial” expenses and therefore are not eligible for reimbursement through accrued benefits. The expenses do not relate to K.E.F.’s last illness. In November 2018, the Board remanded the appeal to ask the appellant to provide a full accounting of all last sickness and burial expenses that she herself incurred regarding K.E.F., to include all of those outlined above, and to provide verification of all such expenses paid by her, such as by providing copies of canceled checks, bills marked as paid by her or having a zero balance, etc. In September 2019, the RO sent the appellant a letter requesting a full accounting of all last sickness and burial expenses that she had incurred regarding K.E.F., in compliance with the Board’s remand. The letter informed the appellant that if the RO did not hear from her, the RO might make a decision on her claim after 30 days. The letter was sent to the appellant’s current address of record and was not returned as undeliverable. The appellant has not responded to the letter or sent any additional information in support of her claim. The Board notes that the duty to assist is not a one-way street; the appellant has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the evidence of record, the Board finds that entitlement to accrued benefits in excess of $649.00 for reimbursement of last sickness/burial expenses is not warranted. Although the appellant has asserted that she paid expenses relating to K.E.F.’s last illness, the available evidence of record does not show that she paid medically necessary expenses. The evidence of the $7,920.00 loan does not show that it was used for medical equipment and there are no receipts for the purchase of medical equipment of record. There is no evidence documenting that the bathroom renovation was medically necessary for K.E.F.’s care. There is also no evidence that the appellant paid the $200 ambulance transportation bill or April 2013 emergency room visit bill, which were addressed to K.E.F. Further, the in-home caregiver expenses were already used to reduce K.E.F.’s countable income when calculating her award for VA benefits, and are therefore, not eligible for reimbursement. Finally, the American Veterans Advocacy, Bradham Insurance Agency and hotel expenses are not related to K.E.F.’s last sickness or burial, and are thus not eligible for reimbursement. In sum, the appellant has not provided the additional documentation requested by the Board, and the current evidence of record does not show that the claimed expenses were paid by the appellant for K.E.F.’s last illness or burial or are eligible for reimbursement. Therefore, entitlement to accrued benefits in excess of $649.00 must be denied. See 38 C.F.R. § 3.1000(a)(5). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.