Citation Nr: 21028308 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-21 784 DATE: May 10, 2021 REMANDED Entitlement to accrued benefits in excess of $1,530.00 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1945 to November 1946. He died in November 2008. The Veteran's widow filed a claim for special monthly pension benefits due to the need for regular aid and attendance in August 2014, which was granted effective August 15, 2014, in an October 2014 rating decision. The widow died in March 2015 and the appellant is the son of the Veteran and his widow. The matter comes before the Board of Veterans' Appeals on appeal from a December 2016 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the appellant's claim for accrued benefits in excess of $1,530.00. See February 2019 Board Decision. The Veteran appealed the Board's February 2019 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In August 2020, CAVC vacated and remanded the Board decision for the Board to reassess whether the Veteran's spouse died from an acute attack or from a lingering or prolonged illness. See August 2020 CAVC Decision. 1. Entitlement to accrued benefits in excess of $1,530.00 is remanded. Although the Board regrets the additional delay, it finds that further development is necessary in order for this matter to be adjudicated. The appellant filed a request for substitution of claimant upon the death of claimant in September 2016 for reimbursement of accrued amounts due to a deceased beneficiary and alleges he is entitled to reimbursement because he bore the expenses of the Veteran's spouse's last illness and funeral. See September 2016 Request for Substitution of Claimant. Where death occurred on or after December 1, 1962, periodic monetary benefits (other than insurance and servicemembers' indemnity) authorized under laws administered by VA, to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid as follows: (1) Upon the death of a veteran to a living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000 (a). In this case, there has been an allegation that benefits are due on the basis of the appellant's relationship to the Veteran and Veteran's spouse as a child. The record indicates that the appellant has been reimbursed for payment of the widow's burial expenses. Here the claim on appeal pertains to payment of expenses related to the last illness of the widow. Under 38 C.F.R. § 3.1000 (a)(5) only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. While the term "last sickness" is not defined under VA law or regulations, a similar term is defined in the VA Adjudication Procedures Manual, M21-1 (Manual). Under Part V, Subpart iii, Chapter 1.G.6.b. of the Manual, the term "last illness" is defined as the period from the onset of the acute attack causing death up to the date of death. If death resulted from a lingering or prolonged illness instead of an acute attack, 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. M21-1, Part V, Subpart iii, Chapter 1.G.6.b. Currently the evidence of record is insufficient to decide the appellant's claim. An October 2014 rating decision granted the Veteran's widow special monthly pension based on the need for regular aid and attendance, effective from August 15, 2014. See October 2014 Rating Decision. However, the widow's clinical records from that date are not of record and have not been requested. Furthermore, the widow's terminal hospital report is not of record and has not been requested. Accordingly, the matters are REMANDED for the following action: 1. Request that the appellant provide copies of the widow's medical records dated from August 15, 2014 until the date she died, to include records of her final hospitalization. 2. Send a letter to the appellant requesting that he provide documentation of receipts and any other proof of the expenses that he paid on behalf of the widow's last sickness. 3. Include a memo in the file that shows the amount of retroactive pension benefits that were unpaid at the time of the widow's death and that shows the amount remaining, less what has been paid out for reimbursement of the widow's burial expenses. 4. After the development set out in paragraph one has been conducted to the extent possible, obtain an opinion from a suitably qualified health care professional which addresses the following question. a.) Whether it is at least as likely as not that the pleural effusions with pulmonary edema which caused the widow's death was/were a lingering or prolonged illness as opposed to an acute episode? In providing this opinion, the widow's medical history and additional illnesses which contributed to her death should be addressed. This opinion should address but not be limited to discussion of the results of the August 2014 housebound examination wherein it is noted a medical history of chronic heart failure and other cardiac disorders and possible aortic stenosis, renal insufficiency, osteoporosis, and chronic back pain. (Continued on the next page) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.