Citation Nr: 21013836 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-32 024 DATE: March 10, 2021 ORDER Entitlement to accrued benefits due and payable to the Veteran's surviving adult child, to include as reimbursement for last expenses of Veteran, is denied. FINDINGS OF FACT 1. The Veteran died in February 2015. 2. The appellant, who filed a VA Form 21-530 for burial reimbursement that was received in April 2015, was born in April 1953. At age 61 as of the date of the Veteran’s death, he does not meet the statutory definition of a child as defined in 38 U.S.C. § 101(4)(A). 3. The evidence of record precludes a finding that the appellant has any reported expenses that would qualify as expenses related to the last sickness or burial of the Veteran. 4. The appellant’s sister filed an Application for Accrued Benefits Due to a Deceased Beneficiary (VA Form 21-601) for reimbursement from accrued amounts due a deceased beneficiary that was not received within one year of the Veteran’s death; therefore, she cannot be recognized as a proper claimant as a matter of law. CONCLUSION OF LAW Entitlement to accrued benefits is not warranted as a matter of law. 38 U.S.C. §§ 101(4)(A), 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 April 1946 to May 1947. He died in February 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 16, 2015 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. See Notification Letter ( Sept. 16, 2015 ). The appellant, his Veterans Service Organization representative, and his sister as a duly sworn witness, all testified before the undersigned Veterans Law Judge at a hearing conducted on October 29, 2020. See Hearing Tr. ( Oct. 29, 2020 ). A transcript of the hearing testimony was associated with the claims file for Board review. Entitlement to accrued benefits due and payable to the Veteran's surviving adult child, to include as reimbursement for last expenses of Veteran, is denied. The appellant (the Veteran’s son) has sought entitlement to accrued benefits due and payable to the Veteran, to include as reimbursement for last expenses of the Veteran. At the hearing, the appellant indicated that he did not expend any personal funds on behalf of the Veteran, to include any burial expenses or expenses from last illness. See Hearing Tr. (Oct. 29, 2020), at Pages 2-3; 8. The appellant’s sister, i.e.: the Veteran’s daughter (who is not the appellant but who was a duly sworn witness at the hearing), was the executor of the Veteran’s estate, and she confirmed that she did not expend any personal funds on behalf of the Veteran either. See generally id. at Pages 3-6. Instead, the Veteran’s funeral was paid by proceeds from his life insurance policy. See id. at Page 6. Turning to the merits of the appellant's claim for accrued benefits are defined as “periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid....” 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Such payments may be made, in order, to the Veteran’s surviving spouse, his/her children in equal shares, or his dependent parents in equal shares. 38 C.F.R. § 3.1000(a)(1)-(4). In all other cases, only so much of accrued benefits may be paid as may be necessary to reimburse the person who bore the expenses of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). The term “child” is defined, for purposes of veterans’ benefits, as an unmarried person who is under the age of 18 years; or who, before reaching the age of 18 years, became permanently incapable of self-support; or 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 approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. In order to be eligible for accrued benefits, therefore, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (concluding that a 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of “child” in 38 U.S.C. § 101(4)(A), which excludes anyone over age 23 unless they were “permanently incapable of self-support” before attaining age 18). “In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial.” 38 U.S.C. § 5121(a)(6). Payment of accrued benefits is not available for expenses paid out of the Veteran’s funds even if made on his behalf by a fiduciary, or by the Veteran's estate. 38 C.F.R. § 3.1000(a)(5). In this case, the appellant has not met the threshold requirement of establishing standing to receive accrued benefits. The appellant is the Veteran’s adult son and has neither alleged nor demonstrated that he became permanently incapable of self-support prior to reaching 18 years of age. Thus, the requirements of 38 C.F.R. § 3.57(a) are not established in this case. The appellant does not meet the requirements of a child of the Veteran or of any other category of qualifying relative, which would entitle his to the decedent’s accrued benefits. See Burris, supra. The Board further notes in passing that even if the appellant’s sister, i.e.: the Veteran’s daughter, would have made the application within one year, she would not satisfy these requirements either. The Board acknowledges the receipts delineating some of the Veteran’s medications while residing at an assisted living facility. See Medical Receipts (rec’d Dec. 2, 2016 ). The Board also acknowledges receipt of an invoice from a funeral home which shows that the total amount due for the Veteran’s funeral was three thousand forty-six dollars ($3,046.00). See Funeral Bill/Expenses (rec’d Apr. 17, 2015 ). These are not addressed to the appellant. They are addressed to the appellant’s sister instead. Furthermore, their collective testimony indicates that the Veteran or his own estate paid for these expenses. See generally Hearing Tr. (Oct. 29, 2020), supra. Unfortunately, there is no evidence of record specifying any particular expense paid by the appellant (that were paid by him and not by the late Veteran’s estate or the appellant’s sister) that may fall within the VA regulatory definition of burial expenses or expenses related to the last sickness; furthermore, the appellant and his sister’s testimony indicate that there are no such eligible expenses that they personally paid. In that regard, the term “burial expenses” encompasses all terms regarding the disposition of a body, namely interment in a burial plot, cremation, burial at sea, medical school donation, and alkaline hydrolysis (“green cremation”). See 38 C.F.R. § 3.1700(b) (defining a burial as all legal means of disposing of a deceased person). As the Veteran’s estate’s expenses are not covered by this regulation and as the evidence of record indicates that the appellant personally has no such eligible expenses, no reimbursement to the appellant is possible. In sum, as the appellant does not qualify as a “child” to whom accrued benefits may be paid, and, as he testified that he has no reportable expenses that would qualify as “burial expenses” or expenses related to the last sickness, there is no legal basis upon which to grant his claim. While the Board is sympathetic to the appellant’s and his sister’s arguments, the Board is nevertheless bound by the applicable regulations and without the legal authority to grant the benefits sought. Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.