Citation Nr: 20009995 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 15-29 367 DATE: February 6, 2020 ORDER Entitlement to accrued benefits in the amount of $958.00, but no more, for the purpose of reimbursement of expenses related to the last sickness of the Veteran’s widow is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT 1. In October 2012, the agency of original jurisdiction (AOJ) issued a rating decision awarding the Veteran’s widow special monthly pension benefits based on the need for aid and attendance, effective January 1, 2011. The widow’s assisted living facility expenses were counted as a continuing medical expense in reducing the widow’s countable income for purposes of calculating the amount of this award. 2. Prior to receiving the full retroactive payment for this award, the widow passed away in February 2013. 3. In October 2013, the Appellant was paid $7,488.92 in accrued benefits to reimburse him for last expenses paid for the widow’s burial. 4. The Appellant has identified an expense of $958.00 paid by him and his wife (M.U.), but no more, relating to the widow’s last sickness. CONCLUSION OF LAW The criteria for additional accrued benefits in the amount of $958.00, but no more, relating to the widow’s last sickness and burial are met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1942 to November 1945. He passed away in January 2011. His widow filed a claim for special monthly pension due to the need for regular aid and attendance in February 2011, which was granted, effective January 1, 2011. The widow died in February 2013, and the Appellant is the Veteran and widow’s son-in-law. The Appellant and M.U., the Appellant’s wife and the Veteran and widow’s daughter, have submitted argument in support of the appeal. The Board notes that, although the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, in November 2009 appointing a National Veterans Service Organization as his representative, the Appellant has not done so. On December 10, 2019, the Appellant was sent a letter advising him of a discrepancy in the record concerning representation, and the letter provided him with all of his representation choices and 30 days to respond. The letter stated that if a response was not received within 30 days of the date of the letter, VA will assume that he wishes to represent himself. The Appellant did not respond to the December 10, 2019 letter. As such, the Board recognizes the Appellant as proceeding pro se in this appeal. Accrued Benefits As noted above, the Veteran’s widow applied for death pension in February 2011. In her application, the widow certified that she was paying the expenses associated with her assisted living facility and prescriptions. In a July 2012 medical expense report, the widow’s other daughter, J.P., again noted that the expenses associated with the widow’s assisted living facility and prescriptions were paid for by the widow. In an August 2012 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the widow’s treatment provider noted that the functional limitations described in the examination report were attributable to her dementia, lung cancer, and chronic obstructive pulmonary disease (COPD), He also noted that the widow was unable to prepare her own meals, that she needed medication management, and that she needed assistance of a responsible adult to leave her home or immediate premises on a daily basis. In an October 2012 rating decision, the AOJ granted the widow’s claim for special monthly pension because of her need for aid and attendance effective January 1, 2011. In so doing, the expenses associated with her assisted living facility were used to offset her income. A finding of incompetency was also proposed. In correspondence dated October 2012, the widow was notified that retroactive payments were being withheld pending a determination concerning her competency. Nevertheless, she was notified that she would begin to receive regular monthly benefits check starting on or around November 1, 2012. In a January 2013 rating decision, the widow was found to be incompetent to handle the disbursement of funds, and J.P. was as appointed her fiduciary. Before the retroactive benefits for the months of January 2011 through October 2012 could be paid, the widow passed away in February 2013. Her death certificate lists her immediate cause of death as lung cancer that was due to or the result of COPD. The Appellant filed a timely application for accrued amounts due to a deceased beneficiary in March 2013, seeking the full amount owed to the widow at the time of her death. In Section III, item 12a, the Appellant noted that he and M.U. paid $7,488.92 for burial expenses, and he submitted a receipt from the funeral home showing that he paid that amount in full. He also noted that M.U. paid $958.00 to the widow’s assisted living facility for her final rent payment, and he submitted a copy of the check signed by M.U. showing that $958.00 was paid to the assisted living facility. The Appellant did not identify any other expenses that either he or M.U. paid on behalf of the widow’s last sickness and/or burial. In the October 2013 decision on appeal, the AOJ awarded $7,488.92 for burial expenses; however, accrued benefits in excess of $7,488.92, were denied. In doing so, the AOJ noted that any of the widow’s assisted living facility fees, including the amount identified by the Appellant in the March 2013 application, could not be considered in awarding accrued benefits as those expenses had been used in determining the widow’s entitlement to special monthly pension due to her need for aid and attendance. In June 2015, the Appellant submitted another VA Form 21-601, Application for Accrued Amount Due a Deceased Beneficiary. Again, he noted that he and M.U., paid $7,488.92 for burial expenses, and $958.00 to the widow’s assisted living facility. No other expenses were listed. The Appellant and M.U. seek recovery of the full amount of accrued benefits due but unpaid above the $7,488.92 already received as reimbursement for burial expenses. In an October 2014 statement, M.U. stated that the family would not have chosen an assisted living facility without the knowledge that accrued benefits payable from January 2011 were due to the widow. Moreover, she stated that, once the widow was situated at the facility, the family did all that it could to keep her in that facility, knowing that retroactive benefits were due. In the July 2015 VA Form 9, Appeal to the Board of Veterans’ Appeals, M.U. stated that, after receiving notice in October 2012 that the Veteran’s widow would receive retroactive benefits dating back to January 2011, her health began to deteriorate, and she was left with no money in her account. As such, her family did whatever it could to keep her at her assisted living facility, including borrowing from friends, family, and college accounts. She stated that without the promise of the retroactive benefit payments, the family would have made other arrangements for the widow’s care. 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). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c). 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). For VA purposes, 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. While M.U. was the Veteran and widow’s daughter, she is not a “child” for purposes of VA accrued benefits, nor does she contend that she meets the legal criteria to be considered a “child” for VA purposes. She also has not argued that she is helpless child. As such, neither the Appellant nor M.U. are entitled to the entirety of accrued benefits owed the widow at the time of her death. Nevertheless, accrued benefits may also be paid to reimburse a person who bore the expenses of the payee’s 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). Here, because M.U. is not shown to be a “child” for VA purposes, her and the Appellant only have standing in this case for the limited purpose of receiving reimbursement for expenses they paid for the last sickness or burial expenses of the widow. Upon review of the record, and as discussed in more detail below, the Board finds that the Appellant and M.U. are entitled to $958.00 in accrued benefits for amount M.U. paid for the last month’s rent at the widow’s assisted living facility. This is because, for this month only—the month of death—VA did not issue a pension payment to the widow, and it is the only month where the rent was indeed shown to be paid by the Appellant and M.U. As noted above, aside from the $7,488.92 that was paid for the widow’s burial expenses, the Appellant and M.U. have only specifically identified the $958.00 paid as being paid by them. Because the Appellant and M.U. have demonstrated that they paid the widow’s last month of rent for her assisted living facility, and she was at the assisted living facility due to need for care of disabilities ultimately causing her death, the Board finds that such payment, in this case only, constitutes a payment for an expense incurred for last sickness. Indeed, the functional limitations associated with the widow’s dementia, lung cancer, and COPD that were identified by her treatment provider in the August 2012 VA Form 21-2680 formed the basis of her award of special monthly pension benefits based on the need for aid and attendance, and her death certificate lists her lung cancer and COPD as her immediate and underlying causes of death. The Board is aware that monthly assisted living expenses were listed by the widow as expenses paid by her during her life, thus allowing her to meet the income requirements for her initial award of special monthly pension. Checks associated with the file confirm that monthly rent payments were indeed drawn from the widow’s checking account during her life. As such, although the Appellant and M.U. have submitted recent statements suggesting that they and other family members helped to pay for the widow’s assisted living community expenses at times while the widow was alive, no reimbursement is permissible to the Appellant or M.U. for such payments, as the evidence shows (1) assisted living expenses were specifically identified to VA as expenses paid for by the widow: (2) such expenses were in turn, included as offsets to her income establishing eligibility for her monthly pension award; and, (3) such expenses were in fact paid from the widow’s own checking account. That stated, it clear that the Appellant and M.U. paid the widow’s last month’s rent out of pocket. Given that VA did not issue a pension payment to the widow for the month in which she died, and that a check submitted demonstrates that rent expenses incurred during that month were paid for by the Appellant and M.U., such payment is eligible for reimbursement from benefits accrued and owed, so long as the payment was for the widow’s last sickness, which the Board has established above. In short, accrued benefits in the amount of $958.00, but no more, for the purpose of reimbursement of expenses related to the last sickness of the Veteran’s widow is granted. (Continued on Next Page) The Board recognizes that family decisions involving the care provided for the widow were made with an understanding that retroactive benefits would be paid. To the extent the Appellant is seeking more accrued benefits than what has been awarded herein, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Indeed, “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). V. Chiappetta Veterans Law Judge\ Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.