Citation Nr: 21016158 Decision Date: 03/20/21 Archive Date: 03/20/21 DOCKET NO. 15-12 280 DATE: March 20, 2021 ORDER Entitlement to additional accrued benefits is denied. FINDINGS OF FACT 1. The appellant is not the Veteran’s spouse or child for accrued benefits purposes. 2. The appellant has not presented evidence of payment of expenses related to the Veteran’s last illness or burial beyond those for which he was already reimbursed. CONCLUSION OF LAW The criteria for additional accrued benefits have not been met. 38 U.S.C. §§ 5121, 5121A; 38 C.F.R. §§ 3.1000, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1943 to October 1943. He died in December 2011 and the appellant, who was appointed as his fiduciary in October 2011, is his nephew. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 decision issued by a Department of Veterans Affairs (VA) Regional Office. In December 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to additional accrued benefits. The appellant contends he is entitled to additional accrued benefits based on the retroactive pay due the Veteran for his special monthly pension and the expenses he bore on the Veteran’s behalf, namely, the cost of his assisted living care. In a July 2011 rating decision, the Veteran was awarded special monthly pension based on the need for the aid and attendance of another person, effective October 29, 2010. In the accompanying notification letter, he was advised that his monthly rate was $1,644.00, effective November 1, 2010; however, $1,521.00 was withheld due to a pending proposal of incompetency. The Veteran was further informed that, in calculating the amount of his award, $21,498.00 in annual Social Security income and $31,284.00 paid for Medicare Part B, Private Medical Insurance, and Annual Assisted Living Fees were considered, which resulted in countable income of $0.00. In August 2011, however, the Veteran was informed that he previously had been paid $123.00 more than he was entitled. Consequently, as of November 1, 2010, his new rate of special monthly pension would be $1,521.00 per month effective November 1, 2010. The Veteran passed away in December 2011. Under governing law, upon the death of a veteran, periodic monetary benefits to which the individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (referred to as “accrued benefits”), and due and unpaid, shall be paid to the Veteran’s spouse and, thereafter, if there is no spouse, his “children.” 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). 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); 38 C.F.R. § 3.1000(a)(5). Further, while the appellant was the Veteran’s fiduciary, a veteran’s fiduciary does not have standing or authority to receive accrued benefits that were unpaid at the veteran’s death, other than in accordance with payments to designated family members or for reimbursement of the expenses of last illness and burial. Youngman v. Shinseki, 699 F.3d 1301, 1303-04 (Fed. Cir. 2012). In the present case, the appellant does not allege, and the evidence does not in any way suggest, that he has at any time pertinent to the present appeal qualified as a “spouse” or “child” of the Veteran, as those terms are defined for purposes of accrued benefits. Accordingly, the appellant may recover only so much of the accrued benefits as may be necessary to reimburse him for expenses he personally incurred in connection with the veteran’s last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Thus, as the appellant was previously awarded $1,000.00 for burial expenses and $5,556.06 for funeral expenses in February 2013, he would need to establish payments for the Veteran’s last sickness and burial in excess of $6,556.06 in order to recoup any additional funds that may be owed to the Veteran. In regard to the amount of the additional funds owed to the Veteran at the time of his death, the appellant’s principal assertion centers upon a reported agreement with a VA field representative that VA owed him benefits in the amount of $19,380.14 at such time. There is no documentation of such communication in the file and, as noted below, VA calculations do not reflect that such amount was owed to the Veteran. Nonetheless, after subtracting the above noted $6,556.06 paid for the funeral and burial expenses, and an additional $5,109.00 of which he acknowledges receipt/overpayment, the appellant believes VA still owes him approximately $7,715.08 of accrued benefits. In support of such claim, he contends that he incurred additional expenses for the Veteran’s care, namely, sitters, caregivers, furniture, and rent, from March 2010 to December 2011. However, VA’s calculations determined that the Veteran was owed $13,689.00 at the time of his death, which was derived from the monthly rate of $1,521 paid from November 1, 2010, to August 1, 2011. After he passed away, he was overpaid three months of benefits that totaled $5,109.00, leaving a total amount of $8,580.00 unpaid and due to the deceased Veteran. Subtracting the already paid $6,556.06 from such amount, VA calculations reflect that $2,203.94 in accrued benefits remains. Clearly, there is a substantial difference between the appellant’s assertion and VA’s determination of the remaining available balance of accrued benefits. Regardless of the correct amount of unpaid benefits, however, the crux of the current issue is whether the appellant can establish payments for the Veteran’s last sickness and burial in excess of the $6,556.06 already paid in order to recoup any additional funds that may be owed to the Veteran. Again, the law states that VA may only pay an appellant who is not the veteran’s spouse or child the amount necessary to reimburse him or her for the expenses incurred in connection with the veteran’s last sickness and burial. 38 U.S.C. § 5121(a)(6). Therefore, he may not receive any additional funds in excess of such expenses. Here, the Board acknowledges that the record includes a Report of Nursing Home or Assisted Living Information that indicates the Veteran was admitted on February 9, 2011, to Southlake Village, a Senior Retirement Living facility. In addition, the appellant submitted invoices indicating that he had paid approximately $2,300.00 per month for the Veteran’s residency there, which he later reported included caregivers, sitters, furniture, and rent, and approximately $1,593.00 total for caregiver services from Medi Home Private Care. However, there is no indication that residence in an assisted living facility with associated caregiver services was a medical expense related to the Veteran’s last sickness. In this regard, VA defines the term “last illness” as the period from the onset of the acute attack causing death up to the date of death; if death results from a lingering or prolonged illness, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person. VBA Manual M21-1, V.i.3.D.3.b. In this regard, the Board has independently reviewed the matter and finds that such definition is an accurate guideline in the instant case. Overton v. Wilkie, 30 Vet. App. 237 (2018). Specifically, VA’s definition allows for a delineation between an individual who requires general residential care at a facility and a terminally ill individual who, due to acute or prolonged illness, requires heightened care from another person on a regular and daily basis. In the instant case, the Veteran’s death certification shows that the manner of death was natural and the cause of death was lymphoma. Dementia was listed as a significant condition, but not included as a cause of death. The appellant has not produced evidence showing that he incurred additional expenses in connection with any treatment for lymphoma and, in the absence of any evidence to the contrary, the Board has no reason to believe the assisted care leading to the Veteran’s death was part of his last illness as he was admitted over 10 months prior to his passing and received care typical of all residents. Caranto v. Brown, 4 Vet. App. 516, 519 (1993). Consequently, as the appellant has not presented evidence of payment of expenses related to the Veteran’s last illness or burial beyond those for which he was already reimbursed, there is no basis under which additional accrued benefits may be granted. While sympathetic to his assertions, the Board is bound by the legal requirements governing the distribution of monetary benefits, as set forth in federal regulation and enacted by Congress. Therefore, the appellant’s appeal must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.