Citation Nr: A21016965 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 210305-148065 DATE: October 20, 2021 ORDER Special monthly pension (SMP) based on the need for aid and attendance prior to the Veteran's death, for accrued purposes, is denied. FINDINGS OF FACT 1. The Veteran was awarded SMP based on the need for aid and attendance in May 2020, but he died before benefits were paid, creating accrued benefits in the amount of $7,644. 2. The appellant, who is the daughter of the Veteran, was over 23 years of age at the death of the payee and thus not a qualifying "child" of the payee. 3. The Veteran paid for his own funeral expenses prior to his death and a preponderance of the evidence is against finding that the appellant paid the last expenses of the Veteran. CONCLUSION OF LAW The requirements for payment of accrued benefits are not met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1945 to March 1946. He died in May 2020. The appellant is one of the Veteran's surviving children. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2020 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which found that while accrued benefits were warranted, such benefits were not payable to the appellant because she was neither a "helpless child" and did not incur the Veteran's last expenses. Thereafter, in November 2020, the appellant requested Higher Level Review of the decision. Such was accomplished in December 2020, and in July 2021, the appellant submitted a VA Form 10182, appealing the December 2020 rating decision to the Board selecting the hearing docket. That hearing was accomplished in July 2021. Therefore, the Board may only consider the evidence of record at the time of the September 2020 rating decision, as well as any evidence submitted by the appellant at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Legal Criteria Upon the death of a veteran, periodic monetary benefits to which he was entitled, on the basis of evidence in the file at the date of death and due and unpaid prior to death, may be paid to the veteran's spouse, children, and dependent parents. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). "Child" means an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age or an unmarried child over the age of 18 but not over 23 years of age who was pursuing a course of instruction at the time of the payee's death. 38 C.F.R. § 3.1000 (d)(2). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of the last sickness or burial. 38 C.F.R. § 3.1000 (a)(5). A veteran's fiduciary does not have standing or authority to receive accrued benefits that were unpaid at the Veteran's death, other than in accordance with payments to designated family members or for reimbursement of the expenses of last illness and burial. Youngman v. Shinseki, 699 F.3d 1301, 1303-04 (Fed. Cir. 2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The record reflects that a claim was pending at the time of the Veteran's death in May 2020. Specifically, in January 2020, the Veteran submitted a claim for SMP based on the need of aid and attendance. After the Veteran's death, but prior to VA receiving notification of the Veteran's death, by rating decision dated in May 2020, VA granted the Veteran's claim and he was awarded $7,644. However, this money was returned to VA after notification of the Veteran's death. In her June 2010 claim for accrued benefits the appellant, who is the daughter of the Veteran, cited funeral expenses for the Veteran in the amount of $12,241 (paid for by the Veteran) as well as assisted living expenses for the Veteran in the amount of $19,326 (paid for by the appellant). The appellant also showed her date of birth to have been in December 1950. In July 2020, the appellant was awarded burial benefits in the amount of $1,096. In a September 2020 rating decision and accompanying letters, the appellant was notified that benefits in the amount of $7,644 were due to the Veteran at the time of his death, representing payment for the months of unpaid VA benefits corresponding to the effective date of January 8, 2020. However, payment to the appellant was limited to reimbursement of the deceased beneficiary's last expenses and there was no indication that the $19,326 assisted living expenses were paid by the appellant as the Veteran's January 2020 application for SMP revealed that the Veteran had paid the $19,326 assisted living expenses. In fact, it was this payment that qualified the Veteran for SMP. Higher-level review of the claim was done in December 2020. Review of the evidence above shows the appellant is not a qualifying "child" as defined in 38 C.F.R. § 3.1000 (d)(2) as her date of birth is in December 1950. Moreover, the evidence does not suggest, and the appellant does not contend that she is a helpless child for VA purposes. Accordingly, the provisions of 38 C.F.R. § 3.1000 (a)(5) are controlling, and these provisions limit payment of accrued funds to the amount paid by the claimant for the last expenses of the payee. Furthermore, as there is no indication that the appellant paid the last expenses of the Veteran, she is not entitled to any accrued benefits. The Board acknowledges the appellant's assertion that she was never told that she was not a qualified beneficiary. However, correspondence dated in June 2020 notified the appellant of the requirements of becoming a beneficiary. The Board also acknowledges the appellant's assertion that there might have been more benefits payable to the Veteran in his lifetime had the claim been granted more expeditiously. This appears to assert a claim based in equity, to the effect that VA is estopped from denying full payment by the tardy processing of the original claim. However, while the Board is sympathetic to the appellant's situation, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.