Citation Nr: 20020007 Decision Date: 03/18/20 Archive Date: 03/18/20 DOCKET NO. 16-63 829 DATE: March 18, 2020 ORDER Entitlement to Department of Veterans Affairs (VA) accrued benefits is denied. FINDINGS OF FACT 1. The Appellant, as an adult, non-dependent child of the Veteran’s surviving spouse, 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 did not report any qualifying expenses as relating to the last sickness or burial of his mother, the Veteran’s surviving spouse. CONCLUSION OF LAW Entitlement to accrued benefits is not warranted as a matter of law. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1943 to November 1945. The Veteran died in April 2014. The Veteran’s surviving spouse was subsequently awarded nonservice connected pension as an accrued benefit, aid and attendance effective April 2014, and special monthly pension based on need for aid and attendance effective from March 11, 2014 to April [REDACTED], 2014 as an accrued benefit. death pension. The Veteran’s surviving spouse died in December 2014. The Appellant is the adult step-child of the Veteran and child of the Veteran’s surviving spouse and he is seeking accrued benefits owed to his mother during her lifetime. This matter comes before the Board of Veterans Appeals’ (Board) from a March 2016 decision by VA, which denied the Veteran’s surviving spouse’s estate request for accrued benefits. The Appellant filed a timely notice of disagreement in April 2016. In March 2017, VA found that it could not recognize the Appellant as a valid substitute claimant for the Veteran’s surviving spouse. The Appellant testified before the undersigned in January 2020 Board hearing. A transcript of the hearing is of record. 1. Entitlement to Accrued Benefits Upon the death of a payee of VA benefits, periodic monetary benefits to which he or she was entitled (accrued benefits) may be paid to certain parties. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). The statute provides that in certain circumstances, accrued benefits may be paid to reimburse the 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). Payment of monetary benefits begins the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. Additionally, VA benefit payments are discontinued on the last day of the month before the payee's death. 38 U.S.C. § 5112; 38 C.F.R. § 3.500 (g). The Appellant has asserted that while the Veteran qualified for VA benefits, he did not live long enough to collect such benefits; and that therefore, such benefits should have been passed to his mother, the Veteran’s surviving spouse, and then upon her death, to her estate. In this regard, the Veteran’s informal claim for disability pension was received on March 11, 2014. This would have made his payment date effective April 1, 2014. See 38 C.F.R. § 3.31. The Veteran died on April [REDACTED], 2014, which would have terminated his benefits effective April 1, 2014. See 38 U.S.C. § 5112; 38 C.F.R. § 3.500 (g). Thus, there were no accrued amounts that were payable, with the exception of the month of death benefit. In this regard, the AOJ has indicated that the Veteran’s surviving spouse received a month of death check in the amount of $2,085.00 in October 2014. The Appellant has also asserted that the Veteran’s surviving spouse applied for survivors’ pension including death pension and aid and attendance benefits, and would have been awarded such benefits if her unreimbursed medical expenses had been properly counted to reduce her income. Thus, he asserts that after her death the AOJ should have determined that there were available accrued benefits. However, as explained below, regardless of whether there were available accrued benefits at the time of his mother’s death, the Appellant has not demonstrated that he is entitled to such benefits. The law governing claims for accrued benefits provides that, upon the death of a surviving spouse, accrued benefits may be payable to the veteran’s children. 38 C.F.R. § 3.1000 (a)(2). However, the term “child,” for the purposes of accrued benefits, is specifically defined by VA regulation as an unmarried person who is (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. See 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57; see also Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (holding that the term “child” for accrued-benefits purposes is defined by 38 U.S.C. § 101 (4)(A)); Nolan v. Richardson, 20 Vet. App. 340 (2006). As the Appellant is over the age of 23 and there is no evidence to suggest he is not capable of self-support, he does not meet the regulatory definition of a “child” entitled to receive all accrued benefits owed but unpaid to his mother at the time of her death. As noted, accrued benefits may also be awarded to a person who bore the expenses of the payee’s last sickness or burial, but only so much may be paid as necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000 (a)(5). Thus, the Appellant is only eligible to receive these accrued benefits to reimburse him for expenses incurred for his mother’s last sickness and burial. In this regard, the Veteran’s surviving spouse filed a claim for nonservice-connected death pension with aid and attendance in May 2014. In an October 2014 letter, the AOJ informed her that her claim for dependency and indemnity compensation and death benefits were denied, and as noted above, that her claim for accrued benefits was approved. The AOJ explained, in pertinent part, that her claim for death pension benefits was denied because the evidence showed that her income effective May 1, 2014 exceeded the maximum annual limit set by law. Thus, her death pension claim was denied due to excessive income. In May 2016, the Appellant stated that he paid money for the Veteran’s surviving spouse’s last seven months in her nursing home. In December 2016, the Appellant submitted bills related to the Veteran’s surviving spouse’s nursing home. Notably, a January 2015 statement indicated that nothing was owed. The bills submitted did not indicate who paid the nursing home bills. In January 2020, the Appellant testified that the Veteran’s surviving spouse paid for all of her bills from her savings. The Appellant further indicated that he did not pay for any of the Veteran’s surviving spouse’s burial expenses. The Board finds that the Appellant’s May 2016 statement that he paid the last seven months in her nursing home is not supported by the record and thus, not credible. The Appellant’s May 2016 statement is inconsistent with his Board testimony. In weighing credibility, VA may consider inconsistent statements. Caluza v. Brown, 7 Vet. App. 498 (1995). (Continued on the next page)   The Board finds that Appellant is not entitled to any accrued benefits of the Veteran’s surviving spouse. The Appellant does not qualify as a “child” to whom accrued benefits may be paid and the Appellant specifically stated that he paid no qualifying expenses. As such, there is no legal basis upon which to grant his claim. While the Board is sympathetic to the Appellant’s argument, the Board is nevertheless bound by the applicable regulations and is without the legal authority to grant the benefit sought, regardless of whether there is any available benefit to award. Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten, 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.