Citation Nr: 21061849 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-64 193 DATE: October 5, 2021 ORDER Entitlement to special monthly death pension benefits based on the need for regular aid and attendance for purposes of accrued benefits is granted. FINDINGS OF FACT 1. The Veteran's widow, the beneficiary, was granted VA death pension benefits with an allowance for aid and attendance in August 2015, effective March 1, 2015. 2. The payment of death pension benefits was delayed due to a proposed finding of incompetency. 3. The beneficiary died in November 2015, prior to the payment of withheld death pension benefits other than for September 2015. 4. The appellant is the Veteran's widow's daughter. She was born in November 1949 and was not permanently incapable of self-support prior to attaining the age of 18; such that she does not satisfy the statutory definition of "child" under the governing statute to be eligible for the payment of accrued benefits. 5. The appellant submitted receipt for funeral expenses totalling $4,171.62, and has been reimbursed for these expenses. 6. The appellant has submitted receipts reflecting that she has borne additional cost of last sickness. CONCLUSION OF LAW The criteria for payment to the appellant of the available accrued benefits, up to the amount of $30,044.93, for expenses paid by the appellant in connection with the last sickness of the Veteran's surviving spouse have been met. 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 September 1944 to August 1946, and from January 1951 to December 1951. He died in November 2006. His surviving spouse, J.C., filed a claim for accrued benefits and nonservice connected death pension in February 2015. She died in November 2015. The appellant is their daughter. She filed a claim for accrued benefits in November 2015. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 administrative decision. In August 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. Entitlement to special monthly death pension benefits based on the need for regular aid and attendance for purposes of accrued benefits The appellant asserts that accrued VA nonservice-connected pension benefits were due and owing to the beneficiary, Veteran's surviving spouse, at the time of her death, and such should now be paid as reimbursed last sickness expenses. At her August 2020 hearing, the appellant detailed that the Veteran's surviving spouse passed away before the competency was determined and before the money awarded as survivor's pension benefits based on the need for regular aid and attendance had actually been paid. See Hearing Transcript (August 2020). She details that only one payment was made in September 2015 prior to the Veteran's surviving spouse's death, and thus payments from March 2, 2015 to September 1, 2015 should serve to reimburse medical expense the appellant incurred. Generally, VA periodic monetary benefits to which a beneficiary was entitled and which remained unpaid at the time of his or her death will be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). Applications for accrued benefits must be filed within one year after the date of death. Following timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Here, the Veteran's surviving spouse, the beneficiary, was granted death pension benefits with an allowance for aid and attendance in August 2015, effective March 1, 2015. Unfortunately, she died in November 2015. Prior to her death, the beneficiary's monthly death pension benefit of $1,149 effective March 1, 2015 had been withheld, prior to the only payment made to her in September 2015 to avoid financial hardship, due to a proposed incompetency and thus amounted to a total of $5,745 to which she was entitled at the time of her death. See Notification Letter (August 2015). The appellant is the Veteran's widow's daughter. In November 2015, she filed her Application for Accrued Amounts Due a Deceased Beneficiary (VA Form 21-601). This claim is essentially to reimburse the appellant for medical expenses personally paid on behalf of the deceased from accrued aid and attendance benefits. VA compensation awarded, but not paid due to the death of an awardee generally is payable only to accrued beneficiaries pursuant to 38 U.S.C. § 5121. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Pursuant to section 5121, full benefits due a surviving spouse but not paid as a result of the surviving spouse's death may be paid only to the children of the deceased Veteran. The term "child" denotes an individual who is either under the age of 18; is unmarried, over the age of 18, and became permanently incapable of self-support prior to attaining 18; or is unmarried, over the age of 18 but not over the age of 23, and was pursuing a course of instruction within the meaning of 38 C.F.R. § 3.57 at the time of the payee's death. See 38 U.S.C. § 101(4) (defining he term "child" for VA purposes). Absent such status, accrued benefits may be paid only to reimburse the expenses of last sickness and burial. 38 U.S.C. § 5121(a)(6). In this case, the record does not support that the appellant qualifies as an accrued beneficiary under section 5121, other than to the extent she incurred expenses providing care for the deceased (her mother). Accordingly, the criteria for entitlement to accrued benefits under 38 C.F.R. § 3.1000(a)(1)(ii) and (2), are not met, and accrued benefits may only be awarded to the extent necessary to reimburse the appellant for any expenses she bore for the Veteran's surviving spouse's last sickness and burial under 38 C.F.R. § 3.1000(a)(5). A March 2016 decision granted accrued benefits for funeral expenses in the amount of $4,171.62. See Notification Letter (March 2016). VA policy contains provisions relative to the allowance of items of expense in connection with a claim for reimbursement under 38 U.S.C. § 5121(a)(6). This specifically lists physician expenses, medicinal expenses, and nursing expenses. VA policy provides that payment of accrued benefits, as reimbursement, is not limited to specific items or amounts; that consideration is to be given to all reasonable expenses incident to last illness and burial; and that only those charges which are clearly shown not to be related to the beneficiary's last illness are to be disallowed. The policy further provides that claims for reimbursement must generally be supported by bills; provided, however, that bills covering the cost of medicines are not required if the claimant alleges that the medicine was paid for in cash and it is apparent that the amount claimed is reasonable and consistent with the character and duration of the last illness. Non-medical expenses should be excluded from reimbursement. Caranto v. Brown, 4 Vet. App. 516, 518 (1993). Further, 38 U.S.C. § 5121 places the burden on the claimant to produce the evidence necessary for VA to determine whether an award from accrued benefits may be properly made, and that it is within VA's discretion to require an appellant to submit receipts to substantiate payment prior to granting a claimant's application. Id. at 519. In this case, the appellant has submitted copies of several checks showing that she paid for the deceased's assisted living expenses from her personal joint checking account. Briefly, the Board notes that the assisted living care bill in this instance is properly classified as a medical bill since the deceased is shown to have dementia, chronic obstructive pulmonary disease (COPD) and glaucoma, as well as peripheral vascular disease (PVD), mitral valve disease, coronary artery disease (CAD), osteoporosis, chronic lymphedema, dermatitis and venous stasis, and personal care was medically indicated. See VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (August 2014). The medical expense payments by the appellant on behalf of the deceased during the applicable period are listed as follows: (1) Check number 108 Payee: ROBC Limited Partnership/The Bridges at Bent Crest Check amount: $4,277.00 Date: March 2, 2015 (2) Check number 112 Payee: ROBC Limited Partnership/The Bridges at Bent Crest Check amount: $4,277.00 Date: March 24, 2015 (3) Check number 119 Payee: ROBC Limited Partnership/The Bridges at Bent Crest Check amount: $4,277.00 Date: April 23, 2015 (4) Check number 122 Payee: ROBC Limited Partnership/The Bridges at Bent Crest Check amount: $4,298.00 Date: May 29, 2015 (5) Check number 125 Payee: ROBC Limited Partnership/The Bridges at Bent Crest Check amount: $4,298.00 Date: June 26, 2015 (6) Check number 128 Payee: ROBC Limited Partnership/The Bridges at Bent Crest Check amount: $4,310.68 Date: August 1, 2015 (7) Check number 131 Payee: ROBC Limited Partnership/The Bridges at Bent Crest Check amount: $4,307.25 Date: August 22, 2015 (Continued on the next page) The Board observes that a March 2016 decision award letter reimbursed the appellant $4,171.62 that she had paid for funeral expense. The appellant has, however, continued to appeal to be reimbursed for additional "last sickness" expenses; particularly checks paid to the Bridges at Bent Crest for nursing home care (Check #108, 112, 119, 122, 125, 128, 131). These checks were signed by the appellant and made from the checking account jointly owned by the appellant and her spouse. Together, the additional medical expenses paid by these checks during the appeal period equal $30,044.93. Therefore, an award of available accrued benefits up to the amount of $30,044.93 for medical expenses paid by the appellant in connection with the deceased's last sickness is granted to the extent that such amount remains undisbursed. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.