Citation Nr: 21064587 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-57 173 DATE: October 20, 2021 ORDER Entitlement to additional accrued benefits due and payable to the Veteran's and his deceased spouse's (widow) surviving adult daughter (appellant) for the expense of last sickness and burial, to include on the basis of clear and unmistakable error, in the October 2012 rating decision, is denied. FINDINGS OF FACT 1. The Veteran died in August 1959. 2. The Veteran's surviving spouse (widow) died in October 2011. 3. At the time of the Veteran's surviving spouse's death, the widow had a pending claim for service connection for the cause of the Veteran's death, which was granted in an October 2012 rating decision. 4. The appellant, who filed an Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary (VA Form 21-601), which was received in June 2012, was born in January 1951. The appellant received $8,175.00 in accrued benefits for expenses she bore for the widow's last illness and burial expense. 5. At age 60, as of the date of the widow's death, she does not meet the statutory definition of a child as defined in 38 U.S.C. § 101(4)(A). CONCLUSION OF LAW The criteria for additional payment of accrued benefits due and payable to the appellant for the expense of last sickness and burial of the widow are not met. 38 U.S.C. §§ 101, 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REFERRED It appears the issue of substitution pursuant to 38 U.S.C. § 5121A was raised in April, July, and August 2012 statements. Although the appellant does not meet the statutory definition of "child" under 38 U.S.C. § 101(4)(A), this issue must still be referred to the Agency of Original Jurisdiction (AOJ) for initial adjudication, to include whether there were any pending claims or appeals prior to the widow's death and whether the appellant is an eligible claimant for substitution purposes. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in August 1959 and his widow died in October 2011. The appellant is the adult daughter of the Veteran and his widow. The widow remarried in June 1966 and her husband died in May 1975. The appellant provided testimony before the undersigned Veterans Law Judge in June 2021, and a hearing transcript is associated with the record. Analysis In April 2014, the appellant raised the argument that there was clear and unmistakable error regarding the issue of accrued benefits owed to the widow, the deceased beneficiary. The appellant wrote that the November 2012 VA letter noted the Veteran's death was service connected and that in the February 2014 letter, the Regional Office (RO) noted that on the application received on April 1, 2012, the appellant asked VA to review and pay benefits back to 1959. The appellant noted the RO explained that review of the file shows that VA received the widow's application for survivor benefits on September 2, 1959, which was denied in September 1959 and that no appeal was received within one year. The appellant contends that the RO failed to consider the accrued benefits from the date of the original Dependency and Indemnity Compensation or Death Pension (Including Accrued Benefits) ("DIC") claim filed in September 1959, and thus the RO should pay all accrued benefits from the original date of the claim. The appellant contends that the RO incorrectly denied the original claim in September 1959 and that if the RO had adjudicated the claim properly, the widow would have enjoyed her benefits from the date of the Veteran's death. She asserts that once service connection has been granted, VA assumed all responsibility for payment of accrued benefits from the date of death of the Veteran, if the application is filed within one year of death. She also asserts that an appeal of the initial rating decision was timely filed in 1959 and regardless of whether there is a substantive appeal, VA should make informative decisions based on rules and regulations. She provided a statement from a military member that he had assisted the widow in writing a letter requesting the Veteran's pension. The appellant requested that all accrued benefits be paid from September 1959. First, the issue before the Board is whether there was CUE in the October 2012 rating decision and corresponding November 2012 notification letter that awarded accrued benefits for service-connected death, effective from September 1, 2009. In September 1959, the widow filed VA 21-4182 Application for Dependency and Indemnity Compensation or Death Pension (Including Accrued Benefits). The RO denied the claim for service connection for cause of the Veteran's death in September 1959. In August 2009, the widow filed an application to reopen the claim for DIC benefits, followed by VA 21-526 Veterans Application for Compensation or Pension, in February 2010 for pension and aid and attendance. In August 2010, the RO awarded an allowance for aid and attendance, and, in the August 2010 notification letter, the RO granted nonservice-connected disability pension for the widow. In September 2010, the widow submitted 1958 service personnel and treatment records. Notably, the Veteran's service records were destroyed in a fire. In October 2010, the RO denied service connection for the Veteran's cause of death. In May 2011, the widow filed an application to reopen the claim for service connection for cause of the Veteran's death and submitted a private medical opinion. In April 2012, the appellant filed an informal claim for accrued benefits, followed by the submission of VA Form 21-601, Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary, in June 2012, in which the appellant reported paying $14,967.74 in burial expenses and $14,296.30 for sitters, house, and care expenses. During the June 2021 Board hearing, the appellant reported that she paid $80,000.00 in last sick and burial expenses for the widow and that she was reimbursed only about $1,400.00 for accrued benefits. In October 2012, the RO granted accrued benefits for service connection for the cause of the Veteran's death. Accrued benefits are defined as "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid. . . ." 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Such payments may be made, in order, to the Veteran's surviving spouse, his/her children in equal shares, or his dependent parents in equal shares. 38 C.F.R. § 3.1000(a)(1)-(4). Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. 38 U.S.C. § 5121(a)(2). In all other cases, only so much of accrued benefits may be paid as may be necessary to reimburse the person who bore the expenses of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). The term "child" is defined, for purposes of veterans' benefits, as an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or who, 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)(A); 38 C.F.R. § 3.57. In order to be eligible for accrued benefits, therefore, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. 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). The appellant has not met the threshold requirement of establishing standing to receive accrued benefits other than reimbursement for payment of the expense of last sickness and burial. The appellant is the adult daughter of the Veteran and the widow, and the appellant was 60 years old at the time of the widow's death. The appellant has not alleged or demonstrated that she became permanently incapable of self-support prior to reaching 18 years of age. Thus, the requirements of 38 U.S.C. § 101(4)(A) and 38 C.F.R. § 3.57(a) are not established in this case, nor has the appellant contended that she met the statutory definition of "child" as defined under 38 U.S.C. § 101(4)(A) and 38 C.F.R. § 3.57(a). The appellant does not meet the requirements of a child of the Veteran or the widow or of any other category of qualifying relative, which would entitle her to the decedent's accrued benefits. See Burris v. Principi, supra. As she is not a qualifying payee, the appellant is entitled to the expenses she bore for the widow's last illness and burial expense and was therefore entitled to $8,175.00 as reflected in a February 2014 notification letter. Notably, the appellant received two separate payments of $4,080.00 in November 2012 and $4,095.00 in February 2014, which totals to $8,175.00. Therefore, the appellant received the full amount in accrued benefits for the expenses she bore for the widow's last illness and burial expense. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5)). Regarding the appellant's general allegation that the RO should have granted service connection for the cause of the Veteran's death in September 1959 when the widow filed her initial claim for DIC benefits, the appellant has not offered any specific arguments other than the contention that the appeal of the initial September 1959 rating decision that denied service connection for the cause of death was timely filed in 1959. However, a review of the records reflects the widow did not file an appeal of that decision, as correctly documented by the RO. The September 1959 notification letter reflects that the correspondence was sent to the widow's address of record at that time and was not returned as undeliverable. It appears the widow continued to live at that address until April 1960, when she reported a change of address at that time. The appellant's general allegation that once service connection was granted, VA assumed all responsibility for payment of accrued benefits from the date of death of the Veteran if the application is filed within one year of death is without legal merit. There is no law or regulation that supports the contention that upon the grant of service connection for the cause of the Veteran's death, the date of service connection for the cause of death extends back to the initial claim, which was 50 years earlier in this case. Rather, the law provides that after notification of an initial review and adverse determination by the RO, a Notice of Disagreement (NOD) must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C. § 7105. The widow did not file an NOD with the September 1959 RO decision and the application to reopen the claim for service connection for the cause of death was not filed until August 2009. There was no pending claim for service connection for the cause of death filed by the widow that was not adjudicated. Regarding the appellant's argument that she is entitled to backpay from 1959 to 1973 when she was in college, as contended in the April 2013 VA Form 21-601, Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary, service connection for the cause of the Veteran's death was not granted during that time period. Further, even if service connection for the cause of the Veteran's death was granted during that time period, the widow would have been entitled to those compensation payments as the surviving spouse of the Veteran, and as explained previously, the appellant would not have been entitled to those payments at the time of the widow's death in October 2011, as the appellant was not considered the Veteran's child as defined under 38 U.S.C. § 101(4)(A) and 38 C.F.R. § 3.57. See also 38 U.S.C. § 5121(a). Notably, during the Board hearing, the appellant's representative argued that the claim should be reconsidered under 38 C.F.R. § 3.156(c) based on newly discovered service records associated with the record in 2010. The representative contends that the RO had constructive possession of the 1958 service records and therefore an effective date of September 1959 is warranted. However, "each new theory of CUE is a separate and distinct matter" and this argument was raised for the first time before the Board during the hearing and therefore the RO did not address this argument. Jarrell v. Nicholson, 20 Vet. App. 326, 332 (U.S. 2006) ("When a new theory of CUE under section 5109A is first presented to the Board, that matter was not "subject to decision by the Secretary," and the Board would lack appellate jurisdiction over the newly raised theory of CUE. 38 U.S.C. § 7104(a). In such a circumstance, the Board is obligated to refer that theory of CUE to the RO to be decided in the same manner as any other claim. 38 U.S.C. § 5109A(e). . . ."). The Board points out that to the extent the appellant is alleging there is CUE in the September 1959 RO decision, the appellant is not permitted to file a CUE motion as to the September 1959 RO decision. Section 5109A(c) specifies that a CUE challenge may be initiated only "on the Secretary's own motion or upon request of the claimant." Because the appellant was not "the claimant" involved in the September 1959 RO determination, she is not permitted under section 5109A to file a CUE motion in this circumstance. See Rusick v. Gibson, 760 F.3d 1342, 1345-46 (Fed. Cir. 2014) (stating "that 'a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE'" (quoting Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998))); see also id. at 1346 (clarifying that, notwithstanding the enactment of 38 U.S.C. § 5121A, which allows specified survivors to be substituted for the deceased VA claimant for accrued benefits purposes, "Haines still stands for the proposition that a survivor cannot initiate a freestanding CUE claim under section 5109A if the veteran had not already filed such a claim"); cf. 38 C.F.R. § 20.1400(a) (2017) ("Review to determine whether [CUE] exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision." (emphasis added)). Accordingly, in light of the above, the appellant may file the arguments raised during the Board hearing directly with the RO. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.