Citation Nr: 21063422 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-39 689 DATE: October 14, 2021 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is not the Veteran's "child" per the statutory definition of that term for VA purposes; he has not provided proof that he bore the cost of the Veteran's surviving spouses' final illness and burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 101 (4), 1542, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.57, 3.950. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1945 to December 1946. The Veteran died in January 2015. The Veteran's surviving spouse filed a claim for death pension in February 2016. She died in October 2016, while her claim was still pending. The appellant is the Veteran's adult child. 1. Entitlement to accrued benefits The appellant filed a timely claim for reimbursement from accrued amounts. At the time of death, the surviving spouse had a pending claim for death pension. A February 2017 rating decision granted entitlement to aid and attendance effective February 29, 2016; however, net worth was determined to be a bar based on assets, to include the family trust, of $283,657. See VA 21-5427 Corpus of Estate Determination. Accrued benefits are periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid. Accrued benefits shall, upon the death of such individual, be paid to the living person first listed below: (i) the Veteran's spouse; (ii) the Veteran's children (in equal shares); (iii) the Veteran's dependent parents (in equal shares). 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). To be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients listed above. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (concluding that a 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C. § 101 (4)(A) which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18). 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)(5). The definition of the term "child" of the Veteran as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4); 38 C.F.R. § 3.57 (a). In this case the appellant, although a child of the Veteran, is an adult as the evidence of record establishes a birth year of 1959 and the evidence does not establish that he was permanently incapable of self-support prior to the age of 18, nor does he so contend. Thus, as an adult, he may only qualify for accrued benefits if he bore the expense of the surviving spouses last sickness and/or burial. See 38 U.S.C. § 5121(a)(6). The Board is limited in its ability to grant any benefits beyond those incurred by the appellant to cover the cost of the final illness and burial. The Board finds that the appellant is not eligible for accrued benefits as he has not submitted evidence establishing that he incurred the expenses of last sickness or burial. The appellant reported expenses of $4,374.67 to the funeral home and $29,938.49 to an assisted living facility and included a statement explaining that all expenses were paid from the family trust, of which he is the trustee, and requested payment be made to either the trust or one of four beneficiaries. See VA 21-601 May 2017. In August 2017 the Regional Office (RO) requested proof of payment for the last illness or burial costs and unconditional written consent authorizing payment to just one person. See MAP-D Development Letter. In September 2017 the appellant provided the unconditional written consent as well as invoices and bank statements showing payments to the assisted living facility from March 2016 to October 2016 and the funeral home. All payments were made from the checking account titled S. Family Irrevocable Trust. See Funeral Bill/Expenses September 2017. The RO requested a copy of the initial trust agreement which clearly shows the terms and the Schedule of Assets, noting that the trust was not reported on the surviving spouse's application for benefits. The RO specifically stated that for any assets transferred after the date established the amounts and dates of each transfer should be provided. See MAP-D Development Letter October 2017. In the December 2017 correspondence the appellant reported total assets of $240,662.69 as of February 29, 2016 in the trust that were transferred via bank deposits of $50,000 in November 2013, $132,000 in October 2015 and $57,435 in November 2015. The appellant provided copies of the bank statements for the trust showing the reported deposits; however, the Board notes that neither the correspondence nor the provided copies indicate who made the deposits. See Correspondence January 2018. The appellant also enclosed a VA 21-0849 Request for Details of Expenses reporting that the $4,374.67 to the funeral home and $29,938.49 to the assisted living facility were paid by the S. Family Trust and again, via correspondence, emphasized that all assisted living expenses from March to October 2016 were paid through the S. Family Trust established in July 2013. See Correspondence June 2018. Review of the trust agreement reveals that it was established on July 3, 2013 with the settlors being the Veteran and his spouse and the trustee the appellant. Section three pertains to funding and notably states that the settlors shall initially fund this trust with assets described in Exhibit 'A', which contains documents of the sale of property owned by the settlors for $60,000. The trust documents also permit the settlors, or any other person with the consent of the Trustee, to add other property to the trust. See Court Documents General January 2018. Thus, the evidence establishes that the Veteran and his spouse provided the initial funds for the trust. While additional deposits to the family trust checking account were made and copies provided, there is no indication as to who made the deposits. Significantly, there is no evidence of funds added to the trust by the appellant, or any other beneficiary, that was then used to pay for the assisted living fees or funeral costs for the surviving spouse. Conversely, the evidence indicates that the expenses of last sickness and burial paid by the family trust were funded, at least in part, by the Veteran and his spouse. The Board also notes that in the surviving spouse's claim for pension was a report of unreimbursed medical expenses that included the assisted living facility expenses that she paid from the S. Family Trust checking account. Specifically, she reported paying unreimbursed medical expenses to the assisted living facility from March 2016 to the present (June 2, 2016) at $3,440. These payments were made from S. Family Trust checking account and coincide with the appellant's claimed expenses of last illness which also include payments to the assisted living facility for the months of March 2016 to June 2016. See VA 21-8416 June 2016. Unreimbursed medical expenses used to calculate accrued benefits for special monthly pension may not be claimed as payments made by the appellant due to last sickness. See VA Manual, Part V.i.3.D.3.c. The Board acknowledges the appellant's contention that the family trust should be reimbursed for the expenses related to the funeral home and assisted living facility; however, applicable law does not include fiduciaries, estates, or executors of estates among the persons eligible to receive accrued benefits. The United States Court of Appeals for Veterans Claims and the United States Court of Appeals for the Federal Circuit have repeatedly affirmed that claims for accrued benefits by persons other than those listed in section 5121(a) are not viable as a matter of law, including claims by a deceased veteran's brother, nephew, fiduciary, and "estate." See e.g., Morris v. Shinseki, 26 Vet. App. 494, 499-500 (2014); Youngman v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012); Pelea v. Nicholson, 497 F.3d 1290, 1291-92 (Fed. Cir. 2007); Richard v. West, 161 F.3d 719, 721-23 (Fed. Cir. 1998). The evidence of record clearly establishes that all claimed expenses related to last illness or death were paid by the S. Family Trust, funded, at least in part, by the Veteran and spouse. The appellant has provided no evidence that he bore the expenses of the surviving spouse's last sickness or burial; as such, he may not receive any reimbursement for such expenses. The Board notes that the merits of the surviving spouses pending claim for death pension was not discussed. However, as the appellant does not qualify to receive any accrued benefit that may be due, the issue of whether the surviving spouses claim should result in any accrued benefit need not be addressed. As the law is dispositive, the appellant's claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 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.