Citation Nr: 20054167 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 16-15 389 DATE: August 14, 2020 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in October 2013. The appellant is her niece and executor of her estate. 2. The appellant was named executor of the Veteran’s estate in August 2015 and filed a claim for accrued benefits in November 2015, which was well more than one year after the Veteran’s death. 3. There is not proof of a mitigating circumstance to, in turn, justify concluding the appellant was unable to file a timely claim for accrued benefits following the Veteran’s unfortunate death. CONCLUSION OF LAW The criteria are not met for entitlement to accrued benefits. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.160, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1943 to March 1946, so during World War II. She died in October 2013. The appellant is her niece who is also the court-appointed administrator/executor of her estate. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2015 decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC), which denied entitlement to accrued benefits since the appellant had filed her claim after expiration of the one-year time limit she had to do that following the Veteran’s unfortunate passing. She testified before the undersigned Veterans Law Judge of the Board during a May 2019 hearing and offered explanation of why there was a delay in timely filing of her claim and, therefore, she believes, reason to excuse the untimely filing under the doctrine of equitable tolling. Entitlement to accrued benefits is denied. The appellant contends that she is entitled to accrued benefits for reimbursement of the Veteran’s final expenses because the local court’s inordinate delay in the appointment of her as administer of the Veteran’s estate created an extenuating circumstance that prevented her from filing a claim during the one-year period she had to do that following the Veteran’s death. The appellant filed a claim for accrued benefits in November 2015, more than two years after the Veteran’s death. Entitlement to accrued benefits requires a claimant to demonstrate that he or she bears a specific, statutorily enumerated relationship to the deceased, namely, a spouse, a child, or a dependent parent. 38 U.S.C. § 5121(a)(2); see also 38 U.S.C. § 101(3)-(5) (defining "spouse," "child," and "parent"). If no such survivors exist, any other person may obtain "only so much of the accrued benefits . . . as may be necessary to reimburse the person who bore the expense of last sickness and burial." 38 U.S.C. § 5121(a)(6). An individual who is not a surviving spouse, child, or dependent parent is not entitled generally to accrued benefits. See, e.g., Wilkes v. Principi, 16 Vet. App. 237, 240-42 (2002) (holding a deceased veteran's nephew and co-executor of his estate not entitled to accrued benefits) The Board initially notes that the appellant is not a spouse, child, or parent of the Veteran and thereby is only entitled, at most, to reimbursement of expenses of last sickness and burial and, even then, only if she has the required standing and filed a timely application. A claim for accrued benefits must be filed within one year after the date of death of the individual with respect to whom such benefits are sought. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000. However, failure to adhere to this requirement is not a total preclusion from filing a claim provided that the appellant can demonstrate that equitable tolling is warranted. The United States Court of Appeals for the Federal Circuit has held that equitable tolling applies when a claimant shows (1) an extraordinary circumstance; (2) that the extraordinary circumstance caused an inability to file during the requested tolling period; and (3) that there was diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014). If shown, the “clock stops” and the requested period is not counted against the time period for filing. Id. Here, though, the Board concludes that entitlement to accrued benefits is not warranted as extenuating circumstances have not been shown to, in turn, warrant equitably tolling the timely filing requirement. In making this important determination, the Board has considered the statements and explanation from the appellant’s representative at the May 2019 Board hearing that the undue delay regarding appointing of the appellant as administrator by the local court delayed the filing of this VA claim. The delay was exacerbated, in part, by the fact that the Veteran had a will, with an executor named, but that person was the Veteran’s sister, and the will was unable to be located until well after the death of the executor. See May 2019 Board hearing transcript at pg. 3. The appellant also testified that she hired an attorney to go to the local court to inquire about the delay in appointment, but the attorney did not receive any response. Id. at 4. The appellant says she started the paperwork prior to her appointment but could not do anything with it until she was named as administrator of the estate. Id. at 3.   The appellant also submitted correspondences between herself and the attorney hired to assist her in being named as executor. See December 2015 Notice of Disagreement (NOD). The correspondences show the appellant hired the private attorney in December 2013, two months after the Veteran’s death. A January 2014 note shows they continued to work together. However, all the necessary paperwork was not filed until June 2015. The appellant was appointed executer of the Veteran’s estate in August 2015 and filed her VA claim in November 2015. Notably, however, appointment as administrator of an estate is not necessary to establish standing to file a claim for reimbursement of funeral expenses. As already explained, accrued benefits may 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). Thus, the appellant could have demonstrated standing to file an accrued benefits’ claim merely by showing that she had paid the expenses of last illness or burial of the Veteran. Moreover, at the very least, if there were then still questions about her standing to file the claim, that could have been resolved after receiving her claim in the course of determining whether she was entitled to the benefit requested. The appellant submitted an invoice of funeral expenses dated in October 2013, so the month of the Veteran’s death; however, the appellant has not submitted documentation of payment of those funeral expenses or, as importantly, sufficient proof of the reasons there was greater than a 2-year delay in eventually filing her claim for accrued benefits. And, to reiterate, the simple filing of her claim would have been sufficient to initiate the process of reviewing her claim and set the date of claim receipt to a time within the time permitted to file a claim. If there then were issues with her claim application, they could have been resolved, even after resolution of the process that she says occurred in the local court system.   Consequently, the record does not reflect that any extraordinary circumstances precluded the appellant from filing a timely claim for accrued benefits – meaning within one year of the Veteran's unfortunate death. Her claim did not have to be complete when initially filed; VA routinely responds to claimants after claims are filed indicating what additional information is needed to supplement the claim. Therefore, the Board finds no basis for equitable tolling of the filing deadline. While sympathetic to the appellant's situation, the Board nonetheless is bound by the law and without authority to grant the claim on an equitable basis. See 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Based on the facts presented, there simply is no legal basis to award accrued benefits, and the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.