Citation Nr: 21025323 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-53 567A DATE: April 27, 2021 REMANDED Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1950 to April 1954. The Veteran died in January 2016. The Appellant is the Veteran’s son. A November 2019 Board decision denied accrued benefits. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In a November 2020 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board decision as to the claim for accrued benefits, and remanded the matter to the Board for actions consistent with the Joint Motion. Entitlement to accrued benefits is remanded. The Appellant asserts that he is entitled to accrued benefits in the amount that he paid for the Veteran’s assisted living facility costs, which the Appellant contends were not properly included in VA benefit payments due to a payment reduction error. In the November 2020 Joint Motion, the parties agreed that the Board correctly determined that the Veteran’s monthly benefit payment was reduced in error, that the Veteran would have been entitled to these benefits at the time of his death as would eligible persons under 38 U.S.C. § 5121(a)(2), and that the Appellant was “only eligible to claim accrued benefits in the amount he bore for the cost of the Veteran’s last sickness, funeral, and burial expenses.” However, the parties agreed that the Board improperly limited the scope of Appellant’s claim by finding that the Appellant was not seeking entitlement to accrued benefits for the Veteran’s last sickness. In an August 2015 statement, the Appellant stated that because of dementia and other health issues, the Veteran required assisted living care and had lived in an assisted living facility since December 2014. The Appellant explained that the cost of the assisted living facility was $1,890 a month, leaving the Veteran with $459 in out-of-pocket expenses, “($1,890 per month ALF minus $1,431 per month VA disability award = $459 additional per month) plus other out of pocket medical expenses.” In February 2016, the Appellant stated that since August of 2015, he paid the assisted living facility $1,890 a month for the Veteran’s assisted living expenses. During the September 2019 Board hearing, the Appellant testified that the cost of the assisted living facility was $1,890 a month and there were $14,683 worth of other medical expenses. The Appellant testified that prior to the Veteran’s death, that there were months in which no payments were received from VA. The Board notes that special monthly pension due to the need for regular aid and attendance was established effective July 16, 2013. The monthly pension was increased to $1,431, effective December 1, 2014. A July 2015 VA correspondence shows that the monthly pension award was reduced based on medical expenses reported in April 2015, and effective January 2015, the monthly award amount was reduced to $788. The Board notes that accrued benefits may be paid to reimburse a person who bore the expenses of the payee's last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). However, payments to persons who bore the expense of last sickness or burial shall be limited to the amount necessary to reimburse such persons for the expenses of last sickness and/or burial. 38 C.F.R. § 3.1000(a). Although the Appellant submitted receipts showing payments to the assisted living facility from April 2015 to December 2015, in the amount of $1,890 per month, the extent of the Appellant’s qualifying unreimbursed last sickness expenses is unclear. Specifically, the Appellant stated that when the Veteran was receiving $1,431 in special monthly pension, there was a $459 outstanding balance due to the assisted living facility. However, when special monthly pension amount was reduced to $788, the Appellant paid $1,890 to the assisted living facility on behalf of the Veteran. The Board finds that a remand is necessary to obtain a full accounting of all last sickness expenses that the Appellant incurred on behalf of the Veteran, to include assisted living costs and any other claimed last sickness medical expenses, and to provide verification of all last sickness and burial expenses paid by the Appellant, such as itemized credit card statements in the Appellant's name, copies of canceled checks, bills marked as paid by the Appellant or having a zero balance, or any other supported documentation. Additionally, VA cannot pay any expenses beyond the total amount of accrued benefits due the Veteran. Therefore, remand is necessary to obtain a full accounting of all special monthly pension benefits that were paid to the Veteran from April 2015 to January 2016. The matter is REMANDED for the following action: 1. Provide the Appellant an opportunity to provide a full accounting and verification of any last sickness expenses he incurred and paid on behalf of the Veteran from April 2015 to January 2016. 2. Conduct a paid and due audit for the period from April 2015 to January 2016. Provide a full accounting of all special monthly pension benefit amounts paid and due to the Veteran from April 2015 to January 2016. The accounting should include any statements indicating direct deposits into the Veteran’s bank account. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., 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.