Citation Nr: 21066346 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 19-24 320 DATE: October 29, 2021 REMANDED Entitlement to accrued benefits due to the death of the Veteran's surviving spouse (Payee) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1942, to October 1945. His surviving spouse died in May 2018. Prior to her death, the Veteran's surviving spouse was deemed incompetent to handle the disbursement of monetary benefits, and her daughter was appointed her fiduciary. She is the Appellant. The appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 notification decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned Veterans Law Judge in February 2021 and a hearing transcript is associated with the record. The Board finds that a review of the relevant history is helpful. The Appellant essentially contends that her mother, the Payee, was entitled to deduction of caregivers' expenses from countable income at the time of her death for VA death pension purposes, and that she is therefore entitled to accrued benefits based on the adjustment in pension income. Periodic monetary benefits to which a veteran or other payee was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran or other payee had a claim pending at the time of death, (iii) the veteran or other payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the death of the veteran or other payee. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). In this case, in August 2016, the Payee submitted a completed VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. In December 2016, VA requested the Veteran's death certificate, VA Form 21-686c, Declaration of Status of Dependents, and information as to whether the Payee lived continuously with the Veteran until his death and whether she had been remarried, and also requested income information. In December 2016, the Appellant, on behalf of the Payee, provided the requested information and reported that they were seeking funds to cover in-help home help. In January 2017, VA again requested a statement indicating whether the Payee lived continuously with the Veteran from the time of their marriage to the date of the Veteran's death, with explanation of who the recipient of the retirement income is for, and financial statements explaining low income with high net worth, and a caregiver statement. In June 2017, caregivers' statements were received from N.S. and A.G. N.S. reported that she assisted in weekly showers of the Payee for almost a year and overnight stays for three days a week to care for the Payee from May 25. A.G. reported she cared for the Payee for eight hours a week from June 2. In June 2017, VA explained it had requested a complete marital history in December 2016, to specifically include whether the Payee had remarried following the death of the Veteran and whether she lived continuously with the Veteran from the date of their marriage until his death. As this information was not received, the RO denied the claim. In a June 2017 Report of General Information, the Payee's daughter informed VA that the Payee lived with the Veteran until he passed away and that she had not remarried. In a July 2017 letter, VA determined it could not reconsider the claim for survivor's benefits. VA explained that although the Payee's daughter, an authorized third party, informed VA that the Payee had lived with the Veteran from the time of the Payee's marriage until the Veteran passed away, and that the Payee had not remarried, since his death, this information must come directly from the Payee. In July 2017, the Payee submitted a signed statement indicating that Payee had lived with the Veteran from the time of the Payee's marriage until the Veteran passed away, and that the Payee had not remarried, since his death. In July 2017, the Payee filed VA Form 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child, for DIC, death pension, and/or accrued benefits. An August 2017 rating decision granted entitlement to aid and attendance. In September 2017, the RO requested clarification as to the Payee's retirement income based on the June 2010 correspondence that the Payee received $175.00 per month in retirement and 25.64 English Pounds per week. The RO requested documentation showing what the Payee had paid from this income source since July 30, 2016. Based on a copy of a personal checkbook ledger, the RO explained it is unclear what medical expenses she had paid for out of her own funds and requested completion of the enclosed VA Form 21-8416, Medical Expense Reports for medical expenses paid for since July 30, 2016. In a September 2017 statement, the Payee provided a statement explaining her retirement income and expenses. A completed VA-Form 21-8416, Medical Expense Report (outdated September 2008 version) was provided. In October 2017 death pension was granted from August 1, 2016. Regarding caregiver's expenses, VA requested receipts or other documentation of the caregiver's expenses and attendant affidavit. The Payee requested adjustment of the pension amount. In January 2018 and February 2018, the Payee submitted VA-Form 21P 8416, Medical Expense Report (February 2012 version). In the July 2019 statement of the case (SOC), the RO explained that in June 2017, VA received incomplete caregiver statements, as they did not itemize the amounts paid, the effective date of when they started their services, or the specific activities of daily living they provided to the widow. The RO noted that on September 21, 2017, the VA received an updated Medical Expense Report and that same day, the VA sent the widow a Veterans Claims Assistance Act (VCAA) duty to assist letter regarding marital history confirmation, income verification, and caregiver fees with in-home attendant statements. The RO noted that on January 2, 2018, the VA received an updated Medical Expense Report on an outdated form and no in-home attendant affidavit forms, or caregiver statements were received with the claim. The RO noted that on February 8, 2018, VA released an updated VA award notification letter which advised the Payee that she must resubmit her medical expenses on the correct form. In May 2018, VA amended the death pension award based on the medical expense report received in February 2018. The VA informed the Payee that it did not consider in-home care expense because it did not have evidence from the caregiver for the amount they charge or the services that they provide. The RO requested the Payee submit statements for each caregiver and resubmit her medical expense report. In June 2018, VA was informed about the Veteran's death. A death certificate shows the Payee passed away in May 2018. In September 2018, the Appellant submitted an application for substitution. Under 38 C.F.R. § 3.278, Deductible medical expenses for in-home care: Payments for assistance with ADLs and IADLs by an in-home attendant are medical expenses as long as the attendant provides the disabled individual with health care or custodial care. Payments must be commensurate with the number of hours that the provider attends to the disabled person. The attendant must be a health care provider unless - (i) The disabled individual needs A&A or is housebound[.] In VA Administrative Manual, M21-1, IX.iii.1.G.3.m-n, In-Home Attendants for a Disabled Person, "[m]onthly rates in excess of $5000 require verification and documentation" or if "the claimed expenses are questionable. Questionable medical expenses are those that raise doubt of validity. Example of questionable medical expenses: The amount of claimed annual medical expenses exceeds the claimant's annual income (including VA pension) and liquid assets." The RO determined that there were no claims pending at the time of the Payee's death in May 2018, and therefore, the Appellant cannot be recognized as a valid substitute claimant. In September 2017, the Appellant submitted information regarding expenses paid to her as a caregiver that included the monthly amounts paid, the effective date of when she started care, and the specific activities of daily living she provided to the Payee. Although the expense report submitted at that time was outdated, the Payee submitted a February 2018 expense report on the correct form, which shows the Appellant was paid $10,100.00 from August 2016 to February 2018 as a caregiver. The Appellant submitted a bank statement which reflects verification of $1,000.00 in personal checks that the appellant claims were paid to her as payment for caregiver services, documentation as to the remaining $9,100.00 was not provided. Nonetheless, given that at least $1,000.00 of the payments appear to be verified, the Board finds it is unclear whether a valid claim was pending prior to the Payee's death, as the required information, to include monthly amounts paid, the effective date of when she started care, and the specific activities of daily living she provided to the Payee was provided. In addition, in June 2017, the Payee submitted affidavits from caregivers, A.G. and N.S., in which the caregivers explained the services they provided to the payee. A.G. and N.S. appear to provide the date of service, although not exact dates, however, the amount they charged for their services was not provided. The personal checkbook ledger reflects that some payments were made to A.G. and N.S. Regarding payments to A.G., based on the February 2018 expense report, the total in-home care expense paid to A.G. was $1,385.00. As this expense was under $5,000.00, under M21-1, IX.iii.1.G.3.n, verification is only required if the claim expenses are questionable. The RO has not yet made a determination as to whether the $1,385.00 paid to A.G. was a deductible medical expense or whether the claimed expense is questionable and therefore required additional verification. N.S. was paid over $5,000.00, however, the RO did not address the checkbook ledger that documented $615 was paid to N.S. In sum, the Board finds that it is unclear if there was pending claim to increase the amount of the Payee's death pension based on caregiver expenses prior to the Payee's death on which the Appellant's accrued benefits claim could be based, and therefore the RO should specifically develop the question of whether the Payee's claim may be deemed filed prior to the Payee's death, whether there were any accrued benefits payable to the Payee prior to her death, and if the Appellant is an eligible claimant for the purposes of substitution or accrued benefits. Except as otherwise provided, where death occurred on or after December 1, 1962, periodic monthly benefits (other than insurance and service member's indemnity) authorized under the laws administered by VA to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid as follows: upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. 38 C.F.R. § 3.1000(a)(2). For VA purposes, "child" means minor children, unmarried children who became permanently incapable of self-support prior to attaining 18 years of age, and those under 23 years of age pursuing a course of instruction within the meaning of 38 C.F.R. § 3.57. 38 C.F.R. § 3.1000(d)(2); see also 38 U.S.C. § 101(4)(A). In all other cases, reimbursement may be sought by those who bore the payee's expense of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). Although the term "last sickness" is not defined in VA law or regulations, a similar term is defined in the VA Adjudication Procedures Manual Rewrite. See M21-1MR, Part V, Subpart 1, Chapter 3, Section D, para. 3(b), which is titled, "Developing for Unreimbursed Funeral and Other Final Expenses." Paragraph 3(b) of this section defines the term "last illness" as "the period from the onset of the acute attack causing death up to the date of death." However, "[i]f death resulted from a lingering or prolonged illness instead of an acute attack, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person." Notably, during the hearing, the Appellant's representative clarified that they were not seeking unreimbursed funeral or other final expenses but alleged that the Pension Center prolonged the claim and therefore did not adjudicate the claim and the Payee did not get the benefit. A claim for accrued benefits due to a deceased beneficiary may also be inferred as a request by an appellant to be substituted as the claimant for the purposes of processing a pending claim to completion. See 38 U.S.C. § 5121A (substitution in case of death of a claimant who dies on or after October 10, 2008). However, substitution is only permitted for a living person who would be eligible to receive accrued benefits due to a claimant under 38 U.S.C. § 5121(a). See 38 U.S.C. § 5121A(a)(1). Thus, to avoid any prejudice to the Appellant, on remand, the AOJ should address whether the claim was pending at the time of the Payee's death in light of the above, in the first instance. This should include a decision as to whether the Appellant is a proper party to substitute for the claim. If so, additional evidence could be received, if not, the decision would have to be made based on the evidence on file at the time of the death of the Payee. The Appellant should also be notified of her rights relating to substitution under 38 U.S.C. §§ 5121, 5121A. The matter is REMANDED for the following action: (Continued on the next page) Determine (1) whether the Veteran's surviving spouse's (Payee) claim may be deemed filed prior to the Payee's death, (2) whether there were any accrued benefits payable to the Payee prior to her death, and (3) if the Appellant is an eligible claimant for the purposes of substitution or accrued benefits. If the basic eligibility requirements are met, send the Appellant appropriate notice with respect to her status as a substituted party, clearly indicating that VA recognizes her as the substituted party. If the basic eligibility requirements are not met, the Appellant must be provided notice of this decision and notice of her appellate rights. In addressing the above, the AOJ should address the September 2017 documents from the Appellant describing the effective date of when she started caregiver services, the specific activities of daily living they provided to the widow, and the amount charged, and the bank statement, as well as the June 2017 statements from N.S. and A.G. describing serviced rendered as caregivers, and the personal checkbook ledger that documented payments were made to N.S. and A.G., received in May 2017. A. S. CARACCIOLO 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.