Citation Nr: 21029756 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-03 828A DATE: May 14, 2021 REMANDED Entitlement to payment of accrued benefits as reimbursement of actual funds paid for expenses associated with the Veteran's surviving spouse's last illness is remanded. REASONS FOR REMAND The Veteran, who died in July 2012, was a World War II Veteran and beyond and former prisoner of war (POW) who served honorably in the U.S. Air Force, Air Force Reserves, and state National Guard over the course of many years. He received several Purple Heart Medals for injuries sustained in combat. His surviving spouse died in October 2013. The appellant is their adult son, who, as evidence shows, served as his mother's fiduciary until her death in October 2013. This appeal to the Board of Veterans' Appeals (Board) is from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In support of this claim, a "virtual" hearing was held in December 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. This appeal also has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board remanded the claim in February 2021 for further development. Unfortunately, however, there has not been compliance with the remand directives, including the acceptable substantial compliance, so the Board regrettably must again remand this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than "strict" or "exact" compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to payment of accrued benefits as reimbursement of actual funds paid for expenses associated with the Veteran's surviving spouse's last illness is remanded. The Board's prior February 2021 decision found that the appellant was the person who bore responsibility for expenses associated with the Veteran's surviving spouse's last illness. As such, the Board granted reimbursement of funds paid by the appellant on the surviving spouse's behalf. Also, in light of the determination that the appellant is entitled to accrued benefits as reimbursement for last illness expenses paid on the Veteran's spouse's behalf, the Board then remanded the claim back to the Agency of Original Jurisdiction (AOJ) for a determination on the precise amount owed in the first instance. In a March 2021 letter, VA requested additional evidence from the appellant, including a caregiver agreement and statement, copies of personal checks to the caregiver, and funeral statements. In response, in March 2021 the appellant submitted a signed statement from a caregiver stating that she was paid $4,000 per month for 15 months from a trust account, a bank statement listing November 2012 to March 2014 payments to the caregiver, and two signed statements from the appellant accounting for care and burial expenses. In an April 2021 Supplemental Statement of the Case (SSOC), the AOJ stated that the information requested in the March 2021 letter was not received and denied the claim for accrued benefits because the appellant did not incur personal expenses. As rationale, the AOJ stated that funds being used for caregiver fees were paid for by the surviving spouse's own money that the appellant was appointed to manage. But, in fact, the April 2021 SSOC failed to consider evidence submitted by the appellant in March 2021. Further, the AOJ failed to calculate the amount of expenses associated with the last illness of the surviving spouse paid by funds belonging to the appellant, including those paid by the revocable trust. In the February 2021 decision, the Board found that the appellant was the person who bore responsibility for expenses associated with the Veteran's surviving spouse's last illness and granted reimbursement of funds paid by the appellant on the surviving spouse's behalf. Pertinent to payments made from the revocable trust, the Board concluded the trust was not specifically for the benefit of the Veteran's spouse and that the assets contained therein, therefore, were "owned" by the appellant upon his appointment as a fiduciary in August 2012, for purposes of calculating reimbursements. Since there resultantly has not been acceptable substantial compliance with the Board's February 2021 remand directives, unfortunately, the claim is again being remanded. See Stegall, 11 Vet. App. at 271 (noting that, when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, this claim is again REMANDED for the following action: Review all financial documentation submitted, including documents submitted by the appellant in March 2021, and calculate the amount of expenses associated with the last illness of the surviving spouse paid by funds belonging to the appellant, including those paid by the aforementioned revocable trust. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.