Citation Nr: 21004608 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-29 534 DATE: January 27, 2021 ORDER Entitlement to accrued benefits, to include for the purpose of reimbursement for expenses regarding the last sickness and burial of the Veteran’s widow, is denied. FINDINGS OF FACT 1. The Veteran’s widow was granted death pension in April 2005 with an allowance for aid and attendance in December 2011, effective January 2011; she died in March 2013. 2. The Appellant is not a “child” of the Veteran for VA purposes. 3. The record fails to indicate that the Appellant personally incurred any expense of the widow’s last sickness and burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits, to include for the purpose of reimbursement of expenses regarding the last sickness and burial of the Veteran’s widow, have not been met. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1946 to January 1947. The Veteran died in March 2005. The Veteran’s widow died in March 2013. The Appellant is the son-in-law of the Veteran and his widow and was appointed the widow’s fiduciary in October 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 decision. The Appellant requested a hearing before the Board. The requested hearing was conducted in October 2020 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. Entitlement to accrued benefits, to include for the purpose of reimbursement for expenses regarding the last sickness and burial of the Veteran’s widow. The Appellant seeks entitlement to accrued benefits. As noted above, the Veteran died in March 2005. The Veteran’s widow was granted death pension in April 2005. An allowance for aid and attendance was granted in December 2011, effective January 2011. In a July 2012 rating decision, the widow was found to be incompetent to handle the disbursement of funds, and the Appellant was appointed as her fiduciary. A Medical Expense Report for January 2012 to December 2012 was received in January 2013, listing a total of $5,939.11 for medical expenses and $947.44 for transportation, for a total of $6,886.55 expenses for 2012. The expense report indicated the Veteran’s widow paid for the expenses. The Veteran’s widow died in March 2013. In May 2013, the Appellant filed the present claim. The Appellant’s claim form, VA Form 21-601, indicates that he sought payment for multiple expenses, including $8,920 for burial, $257.40 for headstone, $690 for month of death check, $83.75 for medication, $131.97 for transportation to doctors, $155.21 for transportation to Walmart to obtain medication, $6,866.55 for 2012 Medical Expense Report, and $1,250 for caregiver fees for January 2013 to March 2013. The Appellant indicated that these expenses were paid and under the section titled, “If Paid, Name of Person or Estate Whose Funds Were Used” the Appellant listed his name with the title of custodian. In May 2014, the Appellant was notified that the claim pending at the time of the death of the Veteran’s widow was for her 2012 medical expenses; however, on the VA Form 21-601, the Appellant indicated that the funds used to pay the expenses were his, not the widow’s. As such, no additional benefits were found for the Veteran’s widow based on the 2012 medical expenses since she did not pay for them. The Appellant then resubmitted a VA Form 21-601 in June 2014. The same expenses as those in the May 2013 application were listed, however, under the section titled, “If Paid, Name of Person or Estate Whose Funds Were Used” the Appellant specifically noted that the funds of the Veteran’s widow were used, but paid by himself as custodian. The Appellant was notified in August 2014 that his claim was denied because he stated on the application that the widow’s expenses were paid using her funds. Because he did not pay any last expenses for the widow, his claim was denied. The Appellant submitted an additional application in September 2014, noting it was a new corrected copy. A statement submitted with the application indicates the Appellant was “now listed as the person whose funds were used as shown on the receipts that are attached to this form.” On this application, the same expenses as those in the May 2013 and June 2014 applications were listed, however, under the section titled, “If Paid, Name of Person or Estate Whose Funds Were Used” the Appellant listed his name. In January 2015, the Appellant was notified that his claim was denied because the most recent application from September 2014 was received past the one-year time limit from the date of the beneficiary’s death. In January 2015, a notice of disagreement was received. The Appellant argued that the claim was timely as it was first received by the RO in May 2013 and a corrected copy was received in June 2014. A statement of the case was issued in June 2016 indicating that although the Appellant identified himself as the administrator/executer of the widow’s estate, the widow’s daughter was appointed as the executer, and the Appellant was listed as secondary executer. The RO stated that because the Appellant’s wife was still alive, she would be the proper claimant. The RO then indicated that the Appellant’s wife had one year from the date of the widow’s death to file the claim, and unfortunately, the time limit had passed. The Appellant testified before the Board in October 2020 that he and his wife provided aid and attendance to the widow, and he was appointed as her fiduciary. He indicated that although he was listed as secondary executer in the widow’s will, his wife entrusted him to be executer because she was not good at handling this type of issue. During the hearing, the Appellant was specifically asked if the final expenses and burial were from his monies or the widow’s and he stated those expenses were paid with the widow’s money. See October 2020 BVA Hearing Transcript, page 6. Except as otherwise provided, where death occurred on or after December 1, 1962, periodic monthly benefits (other than insurance and service member’s indemnity) authorized under the laws administered by VA to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid as follows: upon the death of a surviving spouse or remarried surviving spouse, to the Veteran’s children. 38 C.F.R. § 3.1000 (a)(2). 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 the last sickness or burial. 38 C.F.R. § 3.1000 (a)(5). For VA purposes, “child” is 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 within the meaning of § 3.57 at the time of the payee’s death. 38 C.F.R. § 3.1000 (d)(2). 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). Here, the evidence does not establish the Appellant was the Veteran’s “child” as defined by VA. Importantly, the Board notes the RO’s assertion that the Appellant’s wife was the proper claimant; however, there is no evidence that his wife meets the definition of a “child” either. While she is the Veteran and widow’s daughter, she is not a “child” for purposes of VA accrued benefits. There is no evidence that she is 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 death of the Veteran’s widow, and the Appellant has not asserted such. As such, neither the Appellant nor his wife are entitled to the entirety of accrued benefits owed the widow at the time of her death. As noted, the record contains evidence that the Appellant was appointed as the widow’s fiduciary during her lifetime. However, applicable law does not include fiduciaries, estates, or executors of estates among the persons eligible to receive accrued benefits. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit have repeatedly affirmed that accrued benefits claims by persons other than those listed in section 5121(a) are not viable as a matter of law. See, e.g., Morris v. Shinseki, 26 Vet. App. 494, 499-500 (2014) (holding, in the context of accrued benefits, that Veteran’s brother and fiduciary was not an eligible claimant); Youngman, 699 F.3d at 1303-04 (denying accrued benefits to a deceased Veteran’s fiduciary for distribution to the Veteran’s “heirs”); Pelea v. Nicholson, 497 F.3d 1290, 1291-92 (Fed. Cir. 2007) (denying accrued benefits to deceased claimant’s “estate”); Richard v. West, 161 F.3d 719, 721-23 (Fed. Cir. 1998) (denying accrued benefits to a deceased Veteran’s brother); Wilkes v. Principi, 16 Vet. App. 237, 242 (2002) (denying accrued benefits to a deceased Veteran’s nephew); Caranto, 4 Vet. App. at 518 (holding it was necessary to determine whether a Veteran’s daughter was a “child” for purposes of accrued benefits as she was otherwise ineligible to pursue an accrued benefits claim). The law is well-settled. The Appellant is not an eligible claimant as a child, as an heir, or in his capacity as fiduciary for the Veteran’s widow. The estate and the executor of the estate are not eligible either, to the extent Appellant’s claim can be construed as on behalf of the estate or as executor of the estate. 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 the Appellant is not shown to be a “child” for VA purposes, the Appellant only has standing in this case for the limited purpose of receiving reimbursement for expenses he paid for the last sickness or burial expenses of the widow. Therefore, the only question at issue is whether any additional payments were made by the Appellant that were necessary expenses of either last sickness or burial. Unfortunately, no further amount is payable to the Appellant. As noted above, the Medical Expense Report for January 2012 to December 2012 indicated the Veteran’s widow paid for the expenses totaling $6,886.55. Then, in the May 2013 VA Form 21-601 completed by the Appellant, he indicated that multiple expenses, including $8,920 for burial, $257.40 for headstone, $690 for month of death check, $83.75 for medication, $131.97 for transportation to doctors, $155.21 for transportation to Walmart to obtain medication, $6,866.55 for 2012 Medical Expense Report, and $1,250 for caregiver fees for January 2013 to March 2013 were paid using his funds. Then, in a June 2014 application, the same expenses were listed as paid with the Veteran’s widow funds but paid by him, as a custodian. Finally, in September 2014, an additional application again listed the same expenses but this time indicted that his funds were used for payment. More recently, in June 2020, the Appellant specifically testified that the final expenses and burial were paid from the widow’s money, not his. Under 38 C.F.R. § 3.1000 (a)(5), the accrued benefits may only be paid to reimburse the person who bore the expense of the last sickness or burial. Here, the preponderance of evidence indicates that although the Appellant was the widow’s fiduciary and was responsible for payment of her expenses, the monies used for payment were not his. The Appellant indicated on several occasions that the widow’s funds were used. See, e.g., June 2014 VA Form 21-601; June 2020 BVA Hearing Transcript. Therefore, these expenses do not qualify for reimbursement of payment. Additionally, as noted, fiduciaries, executors, heirs, and estates are not eligible claimants. See Morris, 26 Vet. App. at 499-500; Youngman, 699 F.3d at 1303-04; Pelea, 497 F.3d at 1291-92. To the extent that some of the Appellant’s applications indicate that the decedent’s estate paid for expenses of last sickness or burial does not alter this result. See Morris, supra; Youngman, supra; Richard v. West, 161 F.3d 719, 723 (Fed. Cir. 1998) (“a Veteran’s claim to disability compensation under chapter 11 of title 38 is terminated by his or her death, [and so] a Veteran - and therefore a Veteran’s estate - cannot have a protected property interest [therein]”). To the extent the Appellant is making a claim on his own behalf as a fiduciary, executor, or heir or on behalf of the widow’s estate, the claim must fail as a matter of law. The evidence which tends to establish that the estate paid the claimed medical and burial expenses from the estate’s funds defeats any claim by the Appellant that he, in his personal capacity, was a “person who bore the expense of last sickness and burial.” The statute and implementing regulations, as well as pertinent case law, establish that the provision is to reimburse individuals who actually paid the expenses of last sickness or burial. See 38 U.S.C. § 5121 (a)(6) (“as may be necessary to reimburse the person”); Morris, 26 Vet. App. at 499-500; Youngman, 699 F.3d at 1303-04. The evidence fails to credibly indicate that the Appellant personally incurred any expense of the widow’s last sickness and burial, but instead indicates that the expenses were paid by the widow’s estate. As discussed above, the Appellant specifically testified in June 2020 that the expenses of last sickness and/or burial were paid from the widow’s own funds. On this record, the Appellant is not entitled to accrued benefits and the Appellant may not be reimbursed for payments made by a separate legal entity, i.e. the widow’s estate. In summary, the Board finds as a matter of law that the Appellant is not entitled to accrued benefits as the executor of the widow’s estate, a fiduciary, or an heir. The Board also finds as a matter of law that the estate itself is not an eligible claimant. Consequently, the Appellant’s claim of entitlement to accrued benefits, to the extent it is based on any of those grounds, must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). The Board further concludes, based on findings of fact, that the Appellant is neither a “child” for accrued benefits purposes, nor “the person who bore the expense of last sickness.” Gilbert, 1 Vet. App. at 53-56. Accordingly, Appellant’s claim of entitlement to accrued benefits is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.