Citation Nr: 21062660 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-56 831 DATE: October 8, 2021 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT 1. The Veteran died on September [REDACTED], 2014. 2. In December 2014, the appellant filed VA 21-601 Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary. 3. The appellant is not considered a "child" within applicable regulations for purposes of entitlement to accrued benefits. 4. The appellant is not shown to have paid the claimed expenses for the Veteran's last sickness and burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1943 to November 1945. The Veteran died in September 2014. In March 2019, the Board remanded the case for further development, there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to reimbursement of accrued funds The appellant contends he is entitled to accrued benefits based on the retroactive pay due to the Veteran for his special monthly pension at the time of his death and for expenses owed to D.S. for providing caregiving service to the Veteran. Upon the death of a veteran, periodic monetary benefits to which the individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (referred to as "accrued benefits"), and due and unpaid, shall be paid to the Veteran's spouse and, thereafter, if there is no spouse, his "children." 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). For these purposes, a "child" is as an unmarried child under the age of 18 years, an unmarried child over the age of 18 but not over 23 years of age who was pursuing an eligible course of instruction at the time of the payee's death, or a child of any age who became permanently incapable of self-support prior to attaining 18 years of age. 38 C.F.R. §§ 3.57 (a), 3.1000(d)(2). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5). A threshold factor in determining entitlement to any type of VA benefits is whether there is an eligible claimant. If the appellant is not a "child" for accrued benefit purposes, 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 and burial. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). VA's Adjudication Procedures Manual (VA Manual) M21-1, Part V.i.3.D.3.b., defines last sickness as the period from onset of the acute attack causing death up to the date of death. If death resulted from a lingering or prolonged illness instead of an acute attack, the period of last sickness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person. The evidence does not establish that the appellant qualifies as a "child" under VA law and regulation. Thus, the appellant must provide evidence of final and last expenses paid on behalf of the Veteran. 38 C.F.R. § 3.57. See Supplemental Statement of the Case April 2020. The Veteran filed a claim for special monthly compensation on July 29, 2013. An August 2013 rating decision granted special monthly pension based on the need for aid and attendance effective July 29, 2013. At the same time a finding of incompetency was proposed and funds were withheld pending a final determination on competency. A June 2014 rating decision found the Veteran not competent to handle the disbursement of funds and a July 2014 rating decision granted an earlier effective date of July 29, 2012 for special monthly pension. The Veteran died on September [REDACTED], 2014. Prior to notification of the death, an October 2014 notification letter reported that the Veteran was entitled to a monthly payment of $160 effective April 1, 2013 and $1,732 effective August 1, 2013. The Veteran was advised that his countable income of $27,089 prior to April 1, 2013 was excessive; thus, benefits could not be granted until April 1, 2013 when his income was reduced to $18,3875. A check for $9,326, the amount of retroactive funds due was sent to D.S., custodian of the Veteran, on October 4, 2014. Subsequently, on October 6, 2014, the VA received notification of the Veteran's death. A tracer request revealed that D.S. cashed the check on October 10, 2014. See Correspondence March 2020. Generally, a veteran's fiduciary does not have standing or authority to receive accrued benefits that were unpaid at the veteran's death as provided in 38 U.S.C. § 5121 (a). See Youngman v. Shinseki, 699 F.3d 1301, 1304 (Fed. Cir. 2012) (holding that, by statute, § 5121(a) limits the payment of benefits due at the veteran's death to a surviving spouse or child or dependent parent. No payment can be made to the veteran's estate, or any heir other than as designated in § 5121(a)). However, a fiduciary may be eligible for accrued benefits to reimburse him or her for the actual expense borne as a result of the Veteran's last sickness and burial. To date, D.S. has neither returned the funds, nor filed a claim for accrued benefits. See Correspondence March 2020. In December 2014, the appellant filed a VA 21-601 application for reimbursement from accrued amounts due to a deceased beneficiary. He claimed the following expenses of last sickness and burial: $5,542.08 to Home Instead, $30,168 to D.S., $18,322.50 to The Oaks and $10,3700 to Grace Memorial. The appellant enclosed invoices from July 2012 to February 2013 for Home Instead, invoices from July 2012 to February 2013 for D.S., and invoices from The Oaks from March 2013 to July 2013. The appellant also provided an invoice for Grace Memorial with a grand total due of $10,370, as reported in his application for reimbursement; however, the invoice reveals that the burial expenses were paid from a trust and pre-needs burial plan with a balance owed of only $10, not $10,370. In February 2016 the Regional Office (RO) denied the claim as the Veteran did not have a claim pending at time of death and there was no money owed at the time of death. See Notification Letter February 2016. The appellant provided a written notice of disagreement alleging that the Veteran did have a claim pending as medical expenses for home care and assisted living costs from July 2012 to July 2013 were not properly considered in the pension award. See Notice of Disagreement February 2016. In March 2019 the Board remanded the case to permit the appellant the opportunity to provide evidence of payment to D.S. for home care services and for the RO to conduct an audit to determine if accrued benefits are due. A June 27, 2019 development letter requested the appellant provide evidence of cancelled checks, bank statements or the like, or acknowledgement of receipt from D.S.; however, the appellant responded that he had no other evidence to give VA to support his claim. Additionally, in a statement dated June 27, 2019 the appellant explained that the Veteran was cared for by D.S. from July 2012 to March 2013 with the agreement that the Veteran would pay D.S. upon grant of benefits but funds were not dispersed prior to his death. Thus, the appellant requests the retroactive payment in order to settle with D.S. and for out of pocket expenses to The Oaks. The Board notes that the expenses from The Oaks, Home Instead and caregiving by D.S. claimed by the appellant were also reported as unreimbursed medical expenses by the Veteran in his claim for special monthly compensation. See VA 21-8416 request for information concerning medical, legal, or other expenses. Unreimbursed medical expenses used to calculate the Veteran's accrued benefits for special monthly pension may not be claimed as payments made by the appellant due to the Veteran's last sickness. See VA Manual, Part V.i.3.D.3.c. Expenses used in the calculation of the Veteran's pension award are considered an expense of the Veteran and cannot be claimed by the appellant as an expense due to last sickness. See Statement of the case September 2016. The Board notes that the appellant contends that payments to The Oaks from March 2013 to August 2013 were not included in the pension calculations and should be considered. Irrespective, the appellant has not provided evidence of payment; thus, even if not considered for pension purposes, the evidence still does not establish that the appellant paid these expenses. Furthermore, for the other remaining claimed expenses of Home Instead, caregiving by D.S., and the $10 to Grace Memorial, the evidence of record also does not indicate that these expenses were paid by the appellant or even paid at all. Notably, in the case of caregiving by D.S., the appellant affirms that the alleged balance due remains outstanding. The Board considered the appellant's contentions that additional funds were due to the Veteran based on the alleged medical expenses, in particular from the months from April 2013 to August 2013 and that the RO erroneously claimed receipts and health care statements for home care fees were not received. As discussed above, the appellant may only receive so much of the accrued benefit as may be necessary to reimburse him for the expense of the last sickness and burial. 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000(a)(5). As the appellant has failed to establish that he bore any expense of last sickness or burial, reimbursement is not warranted; thus, any contentions that the Veteran was entitled to a greater benefit for special monthly compensation prior to death are moot. Accordingly, the claim for accrued benefits is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.