Citation Nr: 21008847 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-27 817 DATE: February 18, 2021 ORDER Entitlement to accrued benefits for the period from May 1, 2013, to February 1, 2014, is granted. FINDING OF FACT The evidence establishes that the Veteran’s spouse’s expenses associated with her last sickness were paid by the personal funds, albeit through a trust, by the Appellant such that accrued benefits are warranted for the period from May 1, 2013, to February 1, 2014. CONCLUSION OF LAW The criteria for entitlement to accrued benefits for the period from May 1, 2013, to February 1, 2014, have been met. 38 U.S.C. §§ 101, 5121; 38 C.F.R. §§ 3.57, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from June 1943 to May 1946. The Appellant is his surviving son. The Veteran passed away in January 1978 and his spouse passed away in July 2014. Entitlement to accrued benefits. Although somewhat convoluted, the facts in this case are largely not in dispute. By a September 2013 rating decision, the RO granted entitlement to aid and attendance allowance for the Veteran’s surviving spouse effective April 10, 2013, payable May 1, 2013. By that same rating decision, a finding of incompetency was proposed. In January 2014, the Appellant submitted an incompetency notice response whereby the Veteran’s spouse indicated “I agree with your proposal to rate me incompetent. I would like to waive my due process rights. Please consider appointing the following person as my Fiduciary provided they meet VA requirements, and decide my claim as soon as possible.” The current Appellant was listed as the requested Fiduciary. A January 2014 rating decision found the Veteran’s spouse to be incompetent to handle disbursement of funds. Following that rating decision, the RO issued the spouse her Aid and Attendance award. In a February 2014 letter, the RO stated: You are in receipt of: DEATH PENSION The effective date of the last change to your current award was: 01-JAN-2014 Your current monthly award amount is: $1,130.00 The evidence shows that prior to the incompetency finding (from May 2013 to February 1, 2014) the surviving spouse’s Aid and Attendance award was not provided. Instead, the surviving spouse’s assisted living facility was paid through an irrevocable trust. Six months later, the record includes a “report of death” notice indicating the Veteran’s spouse had died in July 2014. In November 2014, the Appellant filed an Applications for DIC, death pension, and/or accrued benefits; as well as burial expenses. The Appellant was paid burial benefits and that issue is not currently in dispute. However, by a March 2015 statement, the Appellant contended: [The surviving spouse] was granted the non-service connected pension with A&A 4/10/2013 payable 5/1/2013 funds were withheld due to incompetency issue and benefits started 2/1/2014 at $1130 per month. Accrued benefits from 5/1/2013 through 2/1/2014 were never paid out. We are submitting a bank statement that shows none of the accrued benefits were paid out. By a March 2017 statement of the case (SOC), the RO found that the Appellant had not proven that he used his own personal money to pay some of the assisted living fees for his mother. Specifically, the SOC states: We sent a letter dated April 20, 2016 requesting proof of payment that you paid the surviving spouse’s last illness or burial expense. In response to the letter you submitted a statement from Goodlife Assisted Living. The letter states all the payments were paid by Dorothy Streeter, not by you. To date we have not received any other receipts showing you paid any other last illness or burial expenses of Dorothy Streeter. Accrued benefits are periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid. Accrued benefits shall, upon the death of such individual, be paid to the living person first listed below: (i) the Veteran’s spouse; (ii) the Veteran’s children (in equal shares); (iii) the Veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). There is no surviving spouse, child, or dependent parent as defined by applicable regulations. The Appellant is the Veteran’s deceased spouse’s son (Veteran’s son) and has neither alleged nor demonstrated that he became permanently incapable of self-support prior to reaching 18 years of age. He is, therefore, ineligible for accrued benefits based solely on a familial relationship to the surviving spouse. When there is no surviving spouse, child, or dependent parent, 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 and burial. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Therefore, the Appellant is only entitled to accrued benefits in an amount to offset any expenses that he bore in connection with the Veteran’s deceased spouse’s last illness and burial, not to exceed the amount of unpaid accrued benefits to which the surviving spouse is found to have been entitled. Put differently, the only question before the Board is one of fact. The Board must determine whether the Appellant has provided sufficient proof that he used personal funds to pay some of the assisted living fees for his mother. After having considered all of the evidence of record, the Board finds that sufficient proof has been provided and the Appellant is entitled to accrued benefits for the period from May 1, 2013, to February 1, 2014. In support of his claim, the Appellant provided testimony at a virtual Board hearing in January 2021. He explained that although he did not make the payments directly to Goodlife Assisted Living from his personal account, he instead did so through a trust, of which he supplemented with his own personal funds. He has submitted statements from his siblings indicating that he was in fact the trustee and fiduciary of the irrevocable trust for their late mother, and as a result, was responsible for “keeping enough money in the trust to pay for her care expenses.” See April 2017 Buddy Statement. An April 2017 letter from Good Life Assisted Living indicates that payments were made from April 1, 2013 to July 1, 2014. A note states: “amounts were paid by Dorothy M. Streeter RTST UAD 11-23-04.” The Assisted Living facility was not paid by the Veteran’s spouse directly. Instead, they were paid through a trust, as the Appellant had explained at his Board hearing. It is worth noting that the Appellant also submitted the contract between himself and Good Life Assisted Living. The contract states “Parties responsible for costs for services will be: [Appellant’s Name].” Thus, the Appellant was personally contractually obligated to pay for the care of his late mother, irrespective of the trust. Had the trust somehow become overdraw, the assisted living facility had standing, under the contract, to sue the Appellant personally. The Appellant submitted trust documents which show that $6,000 was deposited into the account in December 2013, $2,000 in February 2014, $900 in March 2014, $3,200 in April 2014, $1,900 in May 2014, and $9,000 for June and July of 2014. He has also submitted corresponding records showing the withdrawals made to his personal account matched (within $100-200) the deposit amounts into the trust. Applicable law does not include fiduciaries, estates, or executors of estates among the persons eligible to receive accrued benefits. The United States Court of Appeals for Veterans Claims and the United States Court of Appeals for the Federal Circuit have repeatedly affirmed that claims for accrued benefits by persons other than those listed in section 5121(a) are not viable as a matter of law, including claims by a deceased veteran’s brother, nephew, fiduciary, and “estate.” See e.g., Morris v. Shinseki, 26 Vet. App. 494, 499-500 (2014); Youngman v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012); Pelea v. Nicholson, 497 F.3d 1290, 1291-92 (Fed. Cir. 2007); Richard v. West, 161 F.3d 719, 721-23 (Fed. Cir. 1998). However, the Appellant has shown that the funds used, although paid through the trust, included his personal funds. It is also worth noting that the trust documents clearly show that the deposit of additional funds was necessary for the payment of the Veteran’s surviving spouse’s expenses. The Appellant did not simply deposit the funds into the trust to “shelter” any monies. The Board further notes that although the evidence does not show that the Veteran consistently deposited additional funds each month beginning in May 2013, the evidence establishes that at first, the trust was sufficient to pay the necessary expenses. However, as of December 2013, the Appellant has shown that he used personal funds far beyond the $1,130 Aid and Attendance benefit provided by VA. Thus, there would be no windfall to the Appellant in granting the benefit sought on appeal. Therefore, resolving all reasonable doubt in his favor, the Board finds that the Appellant has provided sufficient proof that he used personal funds to offset expenses in connection with the Veteran’s deceased spouse’s (his mother’s) last illness. It is important to note that the regulations are not providing for the reimbursement of all expenses related to a last illness. Rather, the regulations provide that if “accrued benefits” are owed, and if a person has paid for either burial expenses or last illness expenses, then reimbursement may be authorized, but only up to the amount of the accrued benefits owed. Here, accrued benefits were owed at the time of the widow’s death, but the total amount owed is unknown. As such, the reimbursement of any money spent on last illness expenses cannot exceed that amount. Therefore, entitlement to accrued benefits from May 1, 2013, to February 1, 2014, is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.