Citation Nr: 21025683 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-34 565 DATE: April 28, 2021 ORDER Entitlement to additional accrued benefits is denied. FINDINGS OF FACT 1. The appellant incurred expenses due to the last sickness of his mother, the Veteran’s surviving spouse. 2. Accrued benefits due the Veteran’s surviving spouse at the time of her death in November 2015 have been paid to the appellant in the amount of $5,745. 3. An additional payment to the appellant of accrued benefits is not warranted. CONCLUSION OF LAW The criteria for entitlement to additional accrued benefits, as necessary to reimburse the appellant as the person who bore expenses related to the last sickness of the Veteran’s spouse, his mother, are not met. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.272, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty between April and November 1944. He died in 2008. His surviving spouse died in November 2015. The appellant is their son. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the appellant testified in a hearing before the Board. A transcript of the hearing has been included in the electronic record and has been reviewed. Additional Accrued Benefits On May 14, 2015, VA received from the Veteran’s surviving spouse a claim of entitlement to survivors pension. She died in November 2015 while the claim was pending. In March 2016, her son, the appellant, claimed entitlement to accrued benefits due to his mother. He asserts he is due the money because of costs he incurred in caring for her in the year prior to her death, and costs he incurred in providing for her burial. In the rating decision on appeal, the RO granted the claim and awarded $5,745 in accrued benefits to the appellant. The appellant appeals the decision to the Board and claims entitlement to $98,627.24. Laws and Regulations VA compensation awarded, but not paid due to the death of an awardee generally is payable only to accrued beneficiaries pursuant to 38 U.S.C. § 5121. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Such benefits may be paid to the awardee’s spouse, then to children, and then to dependent parents. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000. In all other cases where there are awarded and unpaid monetary benefits, “only so much of the accrued benefits 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)(6); 38 C.F.R. § 3.1000 (a)(5). At the time of her death, the appellant’s mother (the Veteran’s surviving spouse) did not have a dependent parent or child as defined under 38 U.S.C. § 101 (4) (defining the term “child” for VA purposes). In this instance, the appellant does not contend (and nothing in the record supports a contention) that he qualifies as an accrued beneficiary under section 5121(a), other than to the extent he incurred expenses providing care for his mother prior to her 2015 death, and following with expenses related to burial. VA’s Adjudication Manual (the M21-1) contains provisions relative to the allowance of items of expense in connection with a claim for reimbursement under 38 U.S.C. § 5121 (a)(6). M21-1 Part VIII, 1.5.e, 5.11.f, and 5.12. The Manual specifically lists physician expenses, medicinal expenses, and nursing expenses. The Manual provides that payment of accrued benefits, as reimbursement, is not limited to specific items or amounts; that consideration is to be given to all reasonable expenses incident to last illness and burial; and that only those charges which are clearly shown not to be related to the beneficiary’s last illness are to be disallowed. The Manual further provides that claims for reimbursement must generally be supported by bills; provided, however, that bills covering the cost of medicines are not required if the claimant alleges that the medicine was paid for in cash and it is apparent that the amount claimed is reasonable and consistent with the character and duration of the last illness. Evidence and analysis The parties in this matter are in agreement on the following: first, VA owed to the appellant’s mother at the time of her November 2015 death accrued benefits in the form of survivors pension benefits with Special Monthly Pension (SMP) based on the need of aid and attendance (A&A); second, the appellant – though not entitled to accrued benefits under 38 U.S.C. § 5121 as a “child” of the Veteran’s spouse – has been entitled to accrued benefits; third, that the appellant’s entitlement is based on his expenditure in 2015 and earlier on medical expenses incurred while caring for his mother during her “last sickness” which resulted in her November 2015 death; and fourth, that the expenditures for medical care and for burial qualify under the Manual as expenses incurred by the appellant during his mother’s “last sickness.” The sole disagreement in this matter is whether additional accrued benefits were due the appellant’s mother based on her claim for survivors pension, and by extension, whether additional payment is due the appellant beyond the $5,745 already paid to him. In his hearing before the Board, the appellant asserted entitlement to $98,627.24 based on expenses caring for his mother. But as the RO correctly noted, the appellant was paid the maximum amount that was due his mother from the time of her May 14, 2015 claim for survivors pension until her death in November 2015. (Continued on the next page)   In 2015, the maximum annual pension rate (MAPR) with SMP A&A for a surviving spouse without dependents was $13,794, or $1149 per month. See https://benefits.va.gov/PENSION/rates_survivor_pen14.asp. As such, the total due the appellant’s mother at the time of her death was $5,745. She was due $1149 in June 2015, the month following her claim on May 14, 2015. See 38 C.F.R. § 3.31 (start of payment is first day of calendar month following month in which award became effective). And she was due $1149 each month through November 1, 2015, the first day of the month of her death. See 38 C.F.R. § 3.500 (g) (survivors pension payments terminate on the last day of the month prior to the death of the payee). In short, VA owed the appellant’s mother $1149 per month for five months, or a total amount of $5,745. The $5,745 is therefore the maximum amount of accrued benefits that were available and due to the person caring for the Veteran’s surviving spouse during her last sickness. Inasmuch as that amount was paid to the appellant, the entire amount of accrued benefits has been paid to him. Although he documents additional amounts expended by him, the fact remains that the maximum amount due his mother has been paid to him. There are no more accrued benefits from which VA could reimburse the appellant for expenses exceeding $5,745. His claim must be denied, therefore. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.