Citation Nr: 21005849 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-03 029 DATE: February 2, 2021 THE ISSUE Entitlement to accrued benefits in excess of $2,189.44. ORDER Entitlement to accrued benefits in excess of $2,189.44 is denied. FINDINGS OF FACT 1. A February 2015 rating decision determined that the Veteran was entitled to special monthly pension based on the need for aid and attendance effective September 19, 2014, and a finding of incompetency was proposed regarding the disbursement of funds. 2. The Veteran died in September 2015. 3. At the time of his death, the Veteran was survived by the appellant, his daughter. The appellant does not meet the statutory definition of a child. 4. The appellant was paid $2,189.44 in accrued benefits to reimburse her for the Veteran's funeral expenses. 5. The appellant has not provided sufficient evidence of expenses that were paid by her for the Veteran's last sickness. CONCLUSION OF LAW Entitlement to accrued benefits in excess of $2,189.44 are not met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from November 1948 to September 1952. The Veteran was a Korean Conflict Era Veteran. He also served during Peacetime. The Veteran filed a claim for pension with special monthly pension due to the need for regular aid and attendance in September 2014, which was granted effective September 19, 2014, in a February 2015 rating decision. The Veteran died in September 2015. The appellant is the daughter of the Veteran. This matter comes before the Board of Veterans' Appeals on appeal from a November 2016 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board denied the appellant’s claim. However, in a June 2020 Memorandum Decision, the Court found that the Board failed to adequately explain why it did not consider the appellant’s expenses for groceries, restaurants, and rent were unrelated to caring for the Veteran, her father. Entitlement to accrued benefits in excess of $2,189.44 is denied. The Veteran applied for pension in September 2014. His claim was granted in a February 2015 rating decision, which granted special monthly pension because of his need for aid and attendance, effective September 19, 2014. A finding that the Veteran was incompetent was also proposed. In February 2015, the Veteran was notified that the Veteran's claim for benefits was granted, with monthly payment to begin effective March 1, 2015. The Veteran was further notified that all retroactive benefits were being withheld until a fiduciary for VA purposes was assigned. The Veteran died on September [REDACTED], 2015, before the retroactive benefits were paid. In October 2015, the RO indicated that, due to the death of the Veteran, it had suspended payment of the Veteran's benefits. In November 2015, the appellant filed an application for burial benefits. She also provided the receipt from funeral and burial expenses of the Veteran in November 2015. The receipt revealed that the final burial expenses of the Veteran, as paid by the appellant, totaled $3234.44. In January 2016, the appellant was awarded $1045 for burial costs, $300 for funeral costs, and $745 for cemetery/plot costs. The appellant filed a timely application for accrued amounts due to a deceased beneficiary in November 2015. The claim was initially denied in March 2016, but after the appellant submitted additional evidence, she was awarded reimbursement in the amount of $2,189.44 for payment of the deceased surviving spouse's funeral expenses in November 2016. The appellant was informed that the last expenses considered did not include the $8,940 in caregiver expenses the appellant submitted for payment. The appellant seeks to recover the full amount of accrued benefits due, but unpaid, above the $2,189.44 she has already received as reimbursement, to include for unreimbursed medical expenses, or approximately $8,940. She asserts that she is due this amount on behalf of the Veteran as they are considered expenses of the Veteran's last illness. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Upon the death of a beneficiary, any accrued benefits are payable to his or her spouse, or to specific others if the spouse is not alive. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). In order to be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. Burris v. Principi, 15 Vet. App. 348, 352-53 (2001). If a Veteran dies without a surviving spouse, accrued benefits are payable to the children of the deceased Veteran. 38 U.S.C. § 5121(a)(2), (3); 38 C.F.R. § 3.1000(a)(1), (2). For accrued benefits, the term "child" is defined, in pertinent part, as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) 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 educational institution approved by the Department of Veterans Affairs. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.57(a), 3.1000(d)(2) (2018). The Veteran was divorced at the time of his death; hence, he had no surviving spouse. See Certificate of Death, dated September 2015. While the appellant was the daughter of the Veteran, she is not a "child" for purposes of VA accrued benefits, nor does she contend that he meets the legal criteria to be considered a "child" for VA purposes. The appellant also cannot be considered a helpless child. In all other cases, such as in this case, accrued benefits may be paid only as necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(5); 38 C.F.R. § 3.1000(a)(5). As discussed above, the appellant has been reimbursed for the burial expenses. Although the appellant has standing in this case to receive accrued benefits as the individual who bore the last sickness or burial expenses of the Veteran, upon review of the record, the Board finds that the preponderance of the evidence is against the claim. The Veteran's death certificate indicates that he died in September 2015, with the cause of death listed as congestive heart failure, chronic kidney disease, and hypertension. The appellant was a paid caretaker for the Veteran during his life, and, therefore, these expenses were not paid by the appellant. See User Calculations, dated November 2016; Application for Accrued Benefits, dated November 2015; Care Expense Statement, dated September 2011. Moreover, as noted by the RO, the $1,850 in monthly caregiver expenses ($8940 total) were utilized in calculating the Veteran's initial pension benefit. See Administrative Decision, dated November 2016; Application for Accrued Benefits, dated November 2015; Care Expense Statement, dated September 2011. The Board also notes that the appellant has submitted bank statements noting amounts she paid to grocers, restaurants, and for rent. See Correspondence, dated January 2018. In the June 2020 Memorandum decision, the Court found that the April 2019 Board decision was inadequate because it did not explain why these expenses were not related to the Veteran’s last illness. Under relevant provisions, 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. There is no documentation in the contemporaneous bank statements that any of these expenses went directly toward the care of the Veteran’s illness. Rather, these expenses are generic daily living expenses incurred by potentially any individual, including the appellant. To wit, there is no documentation that the expenses cited by the appellant went directly for the care for Veteran specifically for his final illness in the form of medical care. The appellant further contends that she continued to make mortgage and utility payments associated with the Veteran’s place of residence prior to the Veteran moving in with the appellant, as well as rent and utility payments for her own place of residence, where the Veteran resided for the final thirteen months of the his life. The appellant has produced bank records which document payment of her own rent where she and the Veteran lived during the relevant period. However, the appellant has not demonstrated why the payment of her own rent and utilities was in furtherance of the Veteran’s care for his last illness. Indeed, the appellant lived in the same house as the Veteran as his caregiver during the relevant period, and presumably benefited the appellant. Viewed from a legal perspective borrowed from tort law, we can ask whether the appellant would have incurred the expenses she is claiming “but for” the medical expenses exclusively associated with the Veteran’s final illness. It is clear that the answer is yes – she would have incurred all of the expenses she is claiming regardless of that illness. Although many of us might wish it were so, under current laws and regulations VA is unable to reimburse anyone for the expenses incurred by them that is associated with a Veteran’s food and shelter; under those regulations VA can only be expected to reimburse expenses of medical care. Caranto, 4 Vet. App. 516, 518 (1993). In sum, there is no evidence that these expenses are for the Veteran’s daily living, irrespective of the Veteran's last illness, or are for his last illness, specifically. Therefore, the expenses for food and rent, cannot be considered to be related to the Veteran's last sickness. See 38 U.S.C. § 5121(a)(5); 38 C.F.R. § 3.1000(a)(5). Finally, the Board acknowledges the appellant’s contentions and submitted evidence that the Veteran was competent to handle funds throughout the entire period prior to his death, and that VA improperly withheld retroactive pension payment until a fiduciary could be found. However, in the instant case, that issue is not dispositive on whether the appellant is entitled to accrued benefits and the issue was also not addressed in the June 2020 Memorandum Decision. 38 C.F.R. § 3.1000(a)(5). Upon his death, any VA benefits that were due to the Veteran, but not paid, do not become part of his estate to be inherited by his heirs. Instead, VA law limits those who are eligible to receive such funds to essentially those who were dependent upon the payee at the time of death. See 38 C.F.R. § 3.1000. As the appellant is an adult child of the Veteran, she does not meet the definition of "child" in the regulation and, therefore, entitlement to accrued benefits other than reimbursement of final expenses is not warranted as a matter of law. While the Board sympathizes with the appellant and recognizes the expenses paid by her, it is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). VA is bound by the applicable law and regulations as written. 38 U.S.C. § 7104(c). There is no basis to reimburse the appellant beyond the accrued benefits that have already been paid. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate 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.