Citation Nr: 20037554 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-34 419 DATE: June 2, 2020 ORDER Entitlement to benefits, on an accrued or substituted basis, to include reimbursement of the expense of last sickness or burial, is denied. FINDING OF FACT The Appellant failed to provided evidence of expenses paid by her for her Aunt’s last sickness or burial expenses. CONCLUSION OF LAW The criteria for entitlement to benefits, on an accrued ort substituted basis, to include reimbursement of the expense of last sickness or burial, have not been 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 in the U.S. Army from January 1949 to June 1952. The Veteran died in September 1993, and was survived by his spouse, LH. LH passed away on June [REDACTED], 2011. The Appellant is the niece of LH and seeks benefits as the party responsible for payment of her final expenses. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant appeared before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2019. The transcript of the hearing has been associated with the record. Upon the death of an individual entitled to receive VA benefit payments, certain persons shall be paid the periodic monetary benefits to which the deceased beneficiary was entitled at the time of death that are due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. An application for accrued benefits must be filed within one year after the death of the veteran. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will, upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial of the veteran. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For purposes of this provision, “child” is as defined in 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 within the meaning of § 3.57 at the time of the payee’s death. 38 C.F.R. § 3.1000. In all other cases, accrued benefits may be paid only as necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(5); 38 C.F.R. § 3.1000 (a)(4). In short, in order to be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. Burris v. Principi, 15 Vet. App. 348, 352-53 (2001). Here, the appellant is seeking reimbursement for the last sickness expenses and burial expenses of LH. On March 2011 statement, LH stated that her assisted living fees were not paid for by her niece and nephew from their own funds but were actually paid from the proceeds of a loan secured on LH’s behalf to pay the assisted living fees. At the January 2019 hearing, the Appellant confirmed LH’s statements, contending that a loan was secured on behalf of LH, using LH’s home as collateral. The Appellant testified that the purpose of the loan was to utilize the proceeds to pay LH’s expenses including her nursing home fees. The Appellant further testified that some of the funds were used for LH’s burial. In April 2019, the Board remanded this matter in order to afford the Appellant the opportunity to submit the necessary documentation of proof of the sources of funds used to pay for LH’s living expenses and proof of payment of the expenses related to LH’s final expenses and burial. A statement of funeral goods and services selected was submitted in April 2012. However, the invoice showed that the Appellant and another person paid the funeral expenses. The Appellant was sent a letter in January 2020 requesting a statement from the funeral home showing the amount paid by the Appellant. Additionally, copies of all bills paid to all creditors whose services were rendered in connection with the expense of last sickness and burial of LH were requested to be submitted for the last expenses. However, to date, no response has been received. Although VA has a duty to assist the appellant in the development of the claim, such duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Rather, the appellant also has an obligation to assist in the adjudication of his claim. “If a Veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence.” Wood, 1 Vet. App. at 195. The Appellant has had ample opportunity to submit the requested information. The information requested is paramount of importance in this matter showing what was paid by the Appellant. The Board must conclude that entitlement to benefits accrued or substituted basis, to include reimbursement of the expense of last sickness or burial is not warranted in this matter. Absent evidence of proof what expenses were paid by the Appellant, there is no basis upon which to grant the benefit sought. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.