Citation Nr: 21010551 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-24 564A DATE: February 25, 2021 ORDER Recognition of the appellant as the substitute claimant to continue the Veteran’s pending claims on appeal to completion is denied. FINDINGS OF FACT 1. The Veteran died in September 2016. 2. Z.S. paid for the Veteran’s last sickness or burial. 3. In a January 2017 decision, the appellant was improperly accepted as the substitute clamant. 4. In May 2020, the Z.S. was named as substitute claimant, and the appellant was removed as substitute claimant. 5. The appellant does not meet the criteria for recognition as the substitute claimant to continue the Veteran’s pending claims on appeal to completion and was improperly recognized as the substitute claimant; thereafter, he was properly removed as substitute claimant. CONCLUSION OF LAW The criteria for recognition of the appellant as the substitute claimant to continue the Veteran’s pending claims on appeal to completion have not been met. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1976 to December 1977 and from August 1979 to February 1980. Unfortunately, she died in September 2016. The appellant is the Veteran’s surviving brother. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this case has a complicated procedural history. For clarity, the Board will briefly summarize herein the relevant procedural history. At the time of her September 2016 death, the Veteran had a pending appeal as to the issues of entitlement to service connection for torticollis, special monthly compensation (SMC) based on the Veteran’s need for aid and attendance, and recognition of J.M. as the Veteran’s helpless child. In December 2016, the appellant requested to be recognized as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. In a January 2017 decision, the RO recognized the appellant as the substitute claimant. In March 2017, the Veteran’s surviving adult daughter, Z.S., also requested to be recognized as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. In an August 2018 decision, the Board remanded the issue of entitlement to recognition of Z.S. as substitute claimant, to include whether VA’s recognition of H.M. as substitute claimant was proper. The Board also found that the Veteran’s pending claims on appeal were intertwined with this substitution issue and remanded the pending claims on appeal. In a May 2020 decision, the RO recognized Z.S. as the substitute claimant to continue the Veteran’s pending claims on appeal to completion, thereby removing the appellant as the substitute claimant. The appellant was notified of this decision in the May 2020 statement of the case. That same month, the appellant appealed this decision. As this appeal involves a question of which of two applicants is the proper substitute claimant, this is a contested claim. All parties have been given the required notice of all procedural actions in this case. See 38 U.S.C. §§ 7102(b)(2),7105A; 38 C.F.R. §§ 19.100-02, 20.500-04. Whether the appellant was properly removed as substitute claimant, to include whether VA’s current recognition of Z.S. as substitute claimant is proper. The appellant asserts that he is eligible to substitute as claimant for the claims that were pending at the time of the Veteran’s death, and seeks recognition as substitute claimant. Accrued benefits are defined as due and unpaid periodic monetary benefits to which a payee was entitled at his or her death under existing ratings or decisions or based on evidence in the file at date of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Thus, for an award of accrued benefits there must have been periodic monetary benefits due to the beneficiary at the time of her death. Here, as detailed above, the Veteran had pending claims for periodic monetary benefits at the time of her death. Upon the death of a veteran, any accrued and unpaid benefits are payable to the living person in such order: (A) the veteran's spouse; (B) the veteran's children (in equal shares); (C) the veteran's dependent parents (in equal shares). 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). For accrued benefits, the term "child" is defined, in pertinent part, 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. See 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57; Burris v. Principi, 15 Vet. App. 348, 352-53 (2001); Nolan v. Nicholson, 20 Vet. App. 340 (2006). An application for accrued benefits must be filed within 1 year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). A timely application for accrued benefits is deemed to include a request to substitute if an appeal in a claim for periodic monetary benefits was pending before the Agency of Original Jurisdiction (AOJ) when the claimant died. 38 C.F.R. § 3.1010(c)(2). A person eligible for substitution is defined as "a living person who would be eligible to receive accrued benefits due to the claimant . . . ." 38 U.S.C. § 5121A. Where there are two or more persons eligible to substitute under the same priority group under § 3.1000(a)(1) through (a)(5), e.g., two or more persons who incurred expenses for the Veteran's last sickness and burial, they are part of a joint class. 38 C.F.R. § 3.1010(e)(3). Only one person of the joint class may be a claimant at any one time. The first eligible person in the joint class to file a request to substitute/for accrued benefits will be the claimant representing the joint class. 38 C.F.R. § 3.1010(e)(3)(ii). In this case, the evidence reflects that the appellant is the Veteran’s brother. Therefore, the appellant is not eligible to receive accrued benefits on the basis of his relationship with the Veteran. However, accrued benefits may also be paid as may be deemed necessary to reimburse the person who bore the expenses of the last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Consideration of the claim under this provision could result in the authorization of payment of accrued benefits to the appellant as it is not dependent upon the appellant’s relationship with the Veteran. However, the evidence of record reflects that Z.S., the Veteran’s adult daughter and the appellant's niece, paid for the expense of last sickness and burial for the Veteran. While the appellant in December 2016 submitted a funeral bill that he claimed showed that he bore the expense of the burial and was the proper substitute claimant, this funeral bill does not indicate that the appellant paid any funeral expenses. To the contrary, both the funeral bill submitted by the appellant in December 2016 and subsequent evidence indicate that Z.S. actually bore the expense of the burial. Specifically, the record includes a funeral bill indicating that Z.S. was responsible for and paid the funeral costs. See Funeral Statements received by VA in November 2018 and December 2019. In addition, a May 2020 VA Form 27-0820, Report of General Information, indicates that the RO contacted the funeral home and was told that Z.S. made the only payment that had been received for the funeral expenses. The Board finds this statement from the funeral home to be highly probative evidence that Z.S. bore the expenses of the Veteran’s burial. As such, the Board finds that the weight of the evidence supports a finding that the appellant did not bear the expenses of the Veteran’s last sickness and burial, and therefore is not eligible to receive accrued benefits to reimburse him for any such expenses. For these reasons, there is no legal basis upon which to recognize the appellant as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. The Board acknowledges the appellant’s arguments that he should be recognized as the substitute claimant in this matter. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018) (holding that “§ 503 provides the Secretary with the authority to grant the precise relief that Appellants request here [payment of moneys], and the Secretary has not delegated that authority”). For these reasons, the Board concludes that the appellant is not entitled to recognition as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. Therefore, the appeal is denied. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.