Citation Nr: 21064426 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-01 206 DATE: October 20, 2021 ORDER Entitlement to additional accrued benefits of $200 is granted. FINDINGS OF FACT 1. The Veteran's surviving spouse died on September [REDACTED], 2017. 2. The appellant is not considered a "child" within applicable regulations for purposes of entitlement to accrued benefits. 3. The appellant is entitled to an additional $200 for claimed expenses for the last sickness of the surviving spouse. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are 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 in the United States Army from November 1945 to March 1947. The Veteran died in October 2003. The Veteran's surviving spouse died in September 2017. The appellant filed an application for accrued amounts due a deceased beneficiary in September 2017. The appellant is the Veteran's adult child. 1. Entitlement to accrued benefits in excess of $4,635.07 The appellant filed a timely claim for reimbursement from accrued amounts. At the time of death, the surviving spouse had $18,420 of payable accrued benefits. 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 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. 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 Board notes that the unreimbursed medical expenses used to calculate the surviving spouse's 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 appellant applied for reimbursement in September 2017 and in a statement received October 2017 requested as executor and administrator of the estate the entire amount of $18,420 due to the surviving spouse in accrued benefits. The claim was denied in October 2017 as the appellant did not meet the criteria of a child for VA purposes and did not provide evidence of expenses related to last illness or burial. The 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 appellant filed a timely appeal that included the following medical expenses: $4,500 to the funeral home, $213.65 United Healthcare premium, $135.07 in pharmacy costs, and $200 for a hospital bed rental. In December 2017, the appellant received $4,635.07 in reimbursement for the funeral home and pharmacy costs. See Notification Letter December 2017. Thus, the remaining issue before the Board is whether the appellant is entitled to an additional $413.64 for the United Healthcare premium and hospital bed rental. The December 2017 statement of the case reported that the United Healthcare premium was not reimbursed as it was not an expense clearly shown to be related to last illness or burial but did not include discussion of the $200 expense for the hospital bed. The evidence of records includes a copy of the check to the medical supply company for the hospital bed rental for $200 dated September [REDACTED], 2017. See NOD November 2017. The Board finds that the expense of the hospital bed rental is related to last illness and the appellant is entitled to an additional $200 in accrued benefits. However, the United Healthcare premium for September 2017 does not constitute an expense incurred for last sickness. 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 surviving spouse reported her monthly premium payments to United Healthcare in her claim for special monthly compensation. These recurring monthly payments were included in the calculation of medical expenses and used as a continuing deduction from December 1, 2016 through September 2017 resulting in the total accrued payable benefits of $18,420. The healthcare premium cannot be counted as both an unreimbursed medical expense and again as payment by the appellant for purposes of establishing entitlement to accrued benefits. The Board sympathizes with the appellant that the payment of retroactive pension with aid and attendance benefits was not made prior to death. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Accordingly, the Board finds that the appellant is entitled to additional accrued benefits of $200. 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.