Citation Nr: 20056691 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 14-28 563 DATE: August 27, 2020 ORDER Entitlement to accrued benefits, to include for the purpose of reimbursement of expenses relating to the Veteran's last sickness and burial, is denied. FINDINGS OF FACT 1. The appellant is the adult child of the Veteran. 2. The appellant does not meet the statutory criteria of “child” for the purposes of entitlement to accrued benefits. 3. The appellant did not incur costs of the Veteran’s last sickness and burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 5107, 5121; 38 C.F.R. §§ 3.57, 3.102, 3.353, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1972 to September 1980. He died in February 2012. The appellant is the Veteran’s son. By way of history, a September 2010 rating decision denied entitlement to the Veteran’s claims of service connection for hemochromatosis, liver damage, hypogonadism, gland damage, and type I diabetes. The Veteran submitted a timely notice of disagreement in February 2011, but died before a statement of the case (SOC) was issued. In January 2013, the appellant filed a VA Form 21-601, Application for Accrued Benefits due to a Deceased Beneficiary. In November 2016 and September 2019, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. In his July 2014 substantive appeal, the appellant requested a Board hearing which was scheduled, but the appellant had failed to appear. A review of the claims file reveals the notification of the scheduled hearing may have been mailed to the wrong address. However, as discussed below, the claim must be denied as a matter of law. In other words, there is no legal basis upon which entitlement to accrued benefits can be granted, and therefore any due process deficiencies would have no bearing on the claim. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Since the issuance of the June 2020 supplemental statement of the case (SSOC), additional evidence has been associated with the record in the form of a statement by the appellant and a billing report from the Hayes Funeral Home, which was received by VA in June 2020. The appellant did not waive review of the evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304(c). Nevertheless, these records are duplicative of evidence previously associated with the claims file. Consequently, the Board finds that a remand to the agency of original jurisdiction for a SSOC reflecting consideration of this evidence is not warranted. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Entitlement to accrued benefits Initially, the Board notes that the appellant has been substituted for the Veteran in his claims of entitlement to service connection for hemochromatosis, liver damage, hypogonadism, gland damage, and type I diabetes. See November 2018 Correspondence. Substitution is the right of a living person to submit additional evidence in support of a deceased claimant’s pending claim or appeal, for purposes of accrued benefits. Substitution applies to the same benefits for which accrued benefits are payable, i.e., periodic monetary benefits (other than insurance and Servicemember’s indemnity) such as compensation, pension, Dependency and Indemnity Compensation (DIC), and Chapter 18 benefits. See 38 C.F.R. § 3.1010. 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). 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 accrued benefits to be granted, the recipient must have been owed money at the time of his death, or had a claim pending at the time of his death, which is later granted and retroactive monetary benefits made available. “Child” means an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age, or an unmarried child over the age of 18 but not over 23 years of age who was pursuing a course of instruction at the time of the payee’s death. 38 C.F.R. § 3.1000(d)(2). Accrued benefits may also be paid as may be deemed necessary to reimburse the person who bore the expenses of the 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The appellant’s January 2013 application for accrued benefits indicates he was born in 1987. He does not contend, nor does the record indicate, that he became permanently incapable of self-support before the age of 18, or that he was unmarried and between the age of 18 but not over 23 years of age who was pursuing a course of instruction at the time of the payee’s death. Therefore, the appellant does not qualify for substitution and receipt of accrued benefits based on his familial relationship with the Veteran. Accordingly, he can only qualify for receipt of accrued benefits if he establishes that he bore the expense of the Veteran’s last sickness or burial. 38 C.F.R. § 3.1000(a)(5). Upon review of the record, the Board finds that sufficient evidence that the appellant bore the expense of the Veteran’s burial has not been provided. Here, the appellant indicated in his application for accrued benefits that the expenses of last sickness and burial were paid using his own funds. See January 2013 VA Form 21-601. He further stated that the funeral expenses were billed under his name. See June 2020 Statement in Support of Claim. The funeral expenses were, in fact, billed to the appellant. See February 2012 Hayes Funeral Home Expense Sheet (indicating the bill was paid on April 13, 2012). However, the director of Hayes Funeral Home stated that the Veteran’s other son, J.T.F., bore the expense of the Veteran’s burial. See December 2013 Report of General Information. Additionally, J.T.F. submitted a statement which relinquished any claim of reimbursement for the Veteran’s funeral expenses, indicating that he actually paid those expenses. See November 2018 Statement in Support of Claim. The Board finds that the evidence does not confirm that the appellant contributed to the Veteran’s burial expenses. Although the funeral expenses were billed to the appellant, the bill was only signed by the funeral director, with no notation on who actually paid the balance. Moreover, the statements by the funeral director and J.T.F. indicate that J.T.F. is the one who paid the funeral expenses. In sum, the preponderance of the evidence does not indicate that the appellant bore the expenses of the Veteran’s burial. The appellant does not qualify as a “child” to whom accrued benefits may be paid, nor did he incur any qualifying expenses of the Veteran’s last sickness or burial. As such, the appellant has not established standing to receive any accrued benefits due the Veteran at the time of his death and 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, 6 Vet. App. 426. As stated above, the appellant submitted a statement by J.T.F., in which J.T.F. relinquished all claims of reimbursement for the Veteran’s funeral expenses. J.T.F. further stated the appellant is entitled to any reimbursement due to the prior financial arrangement the parties had made. See November 2018 Statement in Support of Claim. While the Board acknowledges J.T.F.’s offer to transfer his right reimbursement for the Veteran’s burial expenses, the governing statutes establish very specific eligibility requirements for entitlement to accrued benefits. Such authority is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It is noted that the Secretary of Veterans Affairs (Secretary) does have discretionary authority to grant equitable relief in certain circumstances. See 38 U.S.C. § 503(a); McCay v. Brown, 9 Vet. App. 183, 189 (1996). The Board offers no opinion on this matter but advises the appellant that if he wishes to petition for equitable relief, he may file such a petition with the Secretary. The Board is without jurisdiction to consider that which is solely committed to the Secretary’s exercise of that discretion. See McCay, 9 Vet. App. at 189. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.