Citation Nr: 21066298 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-08 119 DATE: October 29, 2021 ORDER Entitlement to accrued benefits, to include reimbursement of the expense of last sickness and burial, is granted. FINDINGS OF FACT 1. The surviving spouse's death pension benefits were terminated in June 2016 due to an increase in her income above the maximum rate allowable to receive such benefits. 2. On July 15, 2016, the Veteran's surviving spouse disagreed with the termination of death pension benefits, which was pending before VA at the time of the surviving spouse's death in August 2016. 3. The appellant, the son of the Veteran and his widow, does not qualify as a dependent child. 4. At the time of the widow's death, she had approximately $422.30 in VA death pension benefits due and unpaid. 5. The appellant incurred more than $422.30 in medical expenses on behalf of the Veteran's widow; therefore, he is entitled to remaining accrued benefits in the amount of $422.30. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for an award of additional accrued benefits in the amount of $422.30, and not in excess thereof, have been met. 38 U.S.C. §§ 101, 102, 5121; 38 C.F.R. §§ 3.59, 3.250, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1944 to June 1946. The Veteran died in September 2002. The Veteran's spouse died in August 2016. The appellant is the Veteran's son. In May 2020, the Board remanded the appellant's claim. Entitlement to accrued benefits, to include reimbursement of the expense of last sickness. The appellant asserts he is entitled to two months of pension payments due to his mother, the Veteran's spouse, prior to her death in July 2016 and August 2016. The Appellant also contends that he should be reimbursed for expenses he paid to care for his mother beginning in May 2016 and continuing through her death for a total of $3335.29. See NOD (July 2017); Correspondence (January 2018). By way of background, following the Veteran's death, his spouse ("widow") applied for VA death pension benefits. In September 2015, the widow was granted special monthly pension (SMP) benefits at the aid and attendance rate. In June 2016, VA informed the widow that such benefits were terminated beginning June 1, 2016, due to an increase in her income making it above the maximum rate allowable to receive such benefits. On July 15, 2016, the widow submitted a statement disagreeing with the termination of SMP as well as VA Form 21-8416, Medical Expense Report, that detailed out-of-pocket medical expenses incurred by the widow, and Improved Pension Eligibility Verification Report in order to have SMP benefits reinstated. The widow subsequently passed away in August 2016. Accordingly, the widow's claim for survivor's pension was pending at the time of her death. The appellant in this case is the son of the widow. Under 38 U.S.C. § 5121(a), upon the death of a veteran's surviving spouse, 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 "children." 38 U.S.C. § 5121(a)(3); 38 C.F.R. § 3.1000(a)(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). While the record reflects that the appellant is the widow's son, the evidence does not in any way suggest that the appellant has qualified at any time during this appeal as a "child" of the widow, as that term is defined for purposes of accrued benefits under 38 C.F.R. § 3.1000(d)(2); therefore, the appellant may recover only so much of the accrued benefits, if any, as may be necessary to reimburse him for expenses he personally incurred in connection with his mother's last sickness and burial. See 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). As stated above, the widow's claim for reinstatement of SMP benefits at the aid and attendance rate was pending when she died in August 2016. In considering the appellant's claim for accrued benefits, generally, only evidence contained in the claims file at the time of the claimant's death is evaluated. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Alternatively, under 38 U.S.C.§ 5121A, substitution of an appellant is possible in the case of the death of a claimant who dies on or after October 10, 2008. In this case, the appellant's mother died after October 10, 2008. As such, the statute in this case allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. Death pension benefits are available for a surviving spouse pursuant to 38 U.S.C. § 1541(a) and its implementing regulation 38 C.F.R. § 3.3(b)(4). A surviving spouse is entitled to such benefits if two criteria are met. First, the veteran had qualifying wartime service as defined in 38 C.F.R. § 3.3(a)(3)(i), (ii), and (iii). Second, the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum allowable pension rate (MAPR) specified in 38 C.F.R. §§ 3.23 and 3.24. See M21-1, Part I, Appendix B. VA presently recognizes the following as periods of war: January 1, 1817 through December 31, 1898, inclusive; April 21, 1898 through July 4, 1902, inclusive; May 9, 1916 through April 5, 1917; April 6, 1917 through November 11, 1918, inclusive; December 7, 1941 through December 31, 1946, inclusive; June 27, 1950 through January 31, 1955, inclusive; August 5, 1964 through May 7, 1975, inclusive; and August 2, 1990 through a date to be prescribed by Presidential proclamation or law. 38 U.S.C. § 101; 38 C.F.R. § 3.2. Entitlement is established if, among other things, the appellant's income is not in excess of the applicable MAPR, and specified at 38 C.F.R. § 3.23, as changed periodically, and reported in the Federal Register. See 38 U.S.C. § 1521. The maximum pension rate is reduced dollar for dollar by the amount of the countable income of the appellant and any dependent. 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. The MAPRs are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. For death pension purposes, the MAPR for a surviving spouse with no dependent children for SMP at the aid and attendance rate was $13,794, effective December 1, 2015. See Pension Rate Tables, Effective December 1, 2015, available at https://www.benefits.va.gov/PENSION/rates_survivor_pen04.asp (accessed on September 14, 2021). Unreimbursed medical expenses reduce countable income for VA pension purposes. Unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); VA pension benefits; payments under Chapter 15 of Title 38, United States Code, including accrued pension benefits; reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner). 38 C.F.R. § 3.272. In this case, the record reflects that the Veteran meets the qualifying service criteria as defined in § 3.3(a)(3)(i) based on more than 90 days of active service during the war period from December 7, 1941 through December 31, 1946. The record reflects that the Veteran's spouse filed a claim for death pension, specifically, SMP at the aid and attendance rate, benefits on May 4, 2015, which were terminated effective June 1, 2016. She disagreed with the termination of benefits in her July 2016 statement along with submission of supporting evidence; however, she died in August 2016. Accordingly, the Board will analyze the amount of her entitlement to pension benefits for the annualization periods from December June 2015 to December 2016. The record reflects that, for the annualization period from December 2015 to December 2016, the Veteran's spouse was in receipt of monthly SSA income of $1099 from December 2015 (approximately $13,188 per year). See SSA Inquiry (June 2016). She received $50.00 in interest annually; as well as $298.03 per month in annuity (approximately $3,516.00 per year); and long-term insurance income of $3,600.00 per month, which stopped on April 30, 2016 ($14,400.00 for four months in 2016). See VA 21-4138 Statement In Support of Claim (September 2016); Eligibility Verification Report (July 2016). The combined income is $31,154.00. Unreimbursed medical expenses that are over five percent of the relevant MAPR are used to reduce countable income. As noted above, the MAPR effective December 1, 2015, for a surviving spouse with no dependents for SMP at the aid and attendance rate is $13,794, and 5 percent of that amount is $689.70. Therefore, in calculating the widow's countable income, only unreimbursed medical expenses in excess of $689.70 can be considered. In this case, the record reflects that the Veteran's spouse's countable income for the period on appeal was initially counted to amount to $50,330. See Notification Letter (June 2016). This amount accounted for SSA income ($14,124.00), interest payments (($50.00), other income ($68,033.00), and medical expenses ($32,308.00). With her Eligibility Verification Report (EVR), the Veteran's spouse submitted a statement that her former income amounting to about $3,600 a month was from a long term care insurance policy that she could receive only as a patient at a nursing home, where she no longer resided. See Statement in Support of Claim (July 2016). She stated that her only income at that time was from Social Security and a small retirement pension, totalling about $1,500.00 a month, and that she had been using her VA pension to help pay for her caregivers. Id. In her EVR, the Veteran's spouse listed additional unreimbursed medical expenses, including as may be relevant to the appeal period Medicare Part D payment in the amount of $355.20, and private medical insurance payment in the amount of $1,612.56. See Eligibility Verification Report (July 2016). She also listed Medicare Plan B payments covered by her Social Security and for the period prior to June 2016, as well as nursing home payments, where she indicated she no longer resided, including during the appeal period. Her aid and attendance expenses were listed as amounting to $1,279 per month. Id. Upon the Veteran's spouses' death, her son submitted a September 2016 statement and included a VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, showing that the Veteran's spouse required nursing home care and left to live with her family to be cared for at home in April 2016; she was later admitted to Southern Care Hospice. See Required nursing home care, left to live with family; admitted to Southern Care Hospice round the clock sitter (September 2016). He also submitted a letter from Penn Treaty showing that her long term insurance income stopped on April 30, 2016. See VA 21-4138 Statement In Support of Claim (September 2016). In a September 2016 VA 21-601 Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary, the Veteran's son stated that after the Veteran's spouse moved out of her nursing home on April 30, 2016, he was her caregiver. See VA 21-601 Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary (September 2016). In this case, the record reflects that, the Veteran's spouse had unreimbursed medical expenses of $48,500 annualized for the applicable period. See User Calculations (June 2020). In this regard, the Board accounted for Medicare Part D payments, caretakers for eight months in 2016 prior to the Veteran's spouse's death; private medical insurance and nursing home. Id. The Board notes that nursing home care was provided through April 30, 2016, while caregiver care was provided from May 1, 2016 until the Veteran's spouse's death, based on the available evidence. Adjusting unreimbursed medical expenses accordingly, results in nursing home care expenses reduction with the addition of home caregiver expenses. Accordingly, for the period in question annualized, nursing home care for four months in 2016 amounts to $13,000, while caregiver expenses for two months prior to her death amount to $2,558. Accordingly, the Veteran's spouse had unreimbursed medical expenses of $20,583.20 annualized for the applicable period Deducting the $689.70 (5 percent of MAPR) from $20,583.20 results in $19,893.50 in countable unreimbursed medical expenses. Deducting the amount of unreimbursed medical expenses that are over 5 percent of the MAPR ($19,893.50) from the widow's income of $31,154.00 results in countable income of $11,260.50, which is below the relevant MAPR of $13,794. Accordingly, the Veteran's spouse would have been paid the maximum rate of SMP with aid and attendance $13,794, reduced by the amount of countable income $11,260.50, which is approximately $2,533.50 (monthly amount of $211.15) for the period in question. Accordingly, the widow would have been owed a total amount of $422.30 for the period from June 1, 2016, when her SMP at the aid and attendance rate payments were terminated until she passed in August 2016. As noted above, the appellant may recover only so much of the accrued benefits, if any, as may be necessary to reimburse him for expenses he personally incurred in connection with his mother's last sickness and burial. See 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). In a July 2017 VA 21-601 Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary, the Veteran's son indicated that he provided in-home 24-hour care that he also paid for and had not been reimbursed for this care. See VA 21-601 Application for Reimbursement from Accrued Amounts Due a Deceased Beneficiary (July 2017). In January 2018, the appellant submitted an expense report, detailing charges purportedly incurred during the appeal period and amounting to $3,335.29. See Correspondence (January 2018). 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 asserts that he incurred $3,335.29 in last expenses for his mother. See Correspondence (January 2018). As stated above, the Veteran's spouse indicated total of $2,558 paid in aid and attendance between June 1, 2016 and July 2016, on her January 2007 VA Form 21-601, Application for Reimbursement from Accrued Benefits Due a Deceased Beneficiary. Moreover, in January 2018, the appellant submitted multiple receipts, including for medical and nonmedical expenses incurred on behalf of his mother, which he calculated to amount to $3,335.29. The Board notes that based on his submissions, some of the payments incurred were (1) non-medical expenses, and (2) incurred prior to May 1, 2016, when the Veteran's spouse left nursing home care. (Continued on the next page) Based on the foregoing, and resolving reasonable doubt in the appellant's favor, the Board finds that accrued benefits are warranted in the total amount of $422.30 (the amount due to and unpaid at the time of the widow's death), but not higher. While the appellant contends that he incurred a higher amount in expenses, there are no additional VA benefits for the appellant's mother that were due and unpaid at the time of his mother's death that can form the basis of a grant of a higher amount of accrued benefits. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5); Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the claim is granted subject to the laws and regulations governing the payment of monetary benefits to the extent described above. C.A. SKOW 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.