Citation Nr: A21017751 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 210206-165472 DATE: November 3, 2021 ORDER Entitlement to accrued benefits is granted. FINDING OF FACT 1. The Veteran was awarded special monthly pension based on the need for aid and attendance effective September 19, 2016. 2. The Veteran's special monthly pension was improperly terminated effective October 1, 2019; the Veteran passed away in January 2020. 3. The Appellant bore the expenses of last sickness and/or burial of her mother. 4. There were periodic monetary benefits due and unpaid to the Veteran at the date of her death. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are met. 38 U.S.C. § 5121 (2018); 38 C.F.R. § 3.1000 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1953 to January 1955. She died in January 2020; the Appellant is her adult daughter. The decision on appeal was issued in January 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the February 2021 VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Appellant with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Entitlement to accrued benefits The Appellant contends that her mother was due unpaid pension benefits at the time of her death. Periodic monetary benefits under 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: in pertinent part, upon the death of a surviving spouse or remarried surviving spouse, to the Veteran's children. 38 U.S.C. § 5121(a)(2), (3), (5); 38 C.F.R. § 3.1000(a), (2). A "child" is defined in 38 U.S.C. § 101 (4)(A) as a person who is unmarried and (1) under the age of 18; or, (2) became permanently incapable of self-support before the age of 18; or, (3) under the age of 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4)(A); 38 C.F.R. § 3.57. With respect to accrued VA benefits, benefits are only paid to certain recipients rather than to the payee's estate. In all other cases, only so much of the accrued benefit may be paid as necessary to reimburse the person who bore the expense of the last sickness and burial. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Under the AMA, the Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104 (c). In the January 2021 decision, the AOJ determined that the Appellant was an eligible claimant as she bore the expenses of last sickness and/or burial. In September 2020, the AOJ admitted that they incorrectly stopped the Veteran's pension effective October 1, 2019. The AOJ acknowledged that they mistakenly thought the Appellant had passed away on October 17, 2019, when in fact it was her spouse. The AOJ then stated that since "we stopped the benefit too early, we owed [the Veteran] funds prior to her death." The AOJ further stated that while the total amount due was not payable, whomever paid expenses related to the Veteran's last sickness or burial, may be entitled to a partial reimbursement. As the Board has delineated above, the Appellant bore those expenses. Therefore, she is entitled to any accrued pension benefits owed to her mother limited to the amount she paid for the expenses of her last sickness and/or burial. The Board notes the Appellant's claim was denied on the basis that she failed to submit a copy of her mother's death certificate. However, the cause of death is not pertinent to the claim for accrued benefits. Moreover, the date of death was previously confirmed by the Social Security Administration (SSA) in a February 2020 data match and inquiry. As there were periodic monetary benefits due and unpaid to the Veteran at the date of her death, the claim for accrued benefits is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.