Citation Nr: 21030518
Decision Date: 05/19/21	Archive Date: 05/19/21

DOCKET NO. 16-28 281
DATE: May 19, 2021

REMANDED

Entitlement to service connection for chronic obstructive pulmonary disease, to include the threshold matter of whether the appellant is a proper substitute, is remanded.

REASONS FOR REMAND

The Veteran served honorably on active duty from February 1975 to January 1980 in the United States Navy. He died in October 2019. The appellant is his adult daughter.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board dismissed the matter as the Veteran had passed away and no substitute had been granted. As was acknowledged in the Board's dismissal, however, a request for substitution had been filed in November 2019, and in August 2020, the RO determined the appellant met the basic eligibility for substitution. 

1. Entitlement to service connection for chronic obstructive pulmonary disease

Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Upon the death of an individual, any accrued benefits are payable to the first living person in a list as follows: the Veteran's spouse, the Veteran's children (in equal shares), or the Veteran's dependent parents (in equal shares) or surviving parent. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). In all other cases, accrued benefits may be paid only as 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). 

In determining eligibility for accrued benefits as well as substitution, the term "child" is defined, in pertinent part, as a child of the Veteran who is under the age of 18 years, became permanently incapable of self-support before reaching the age of 18 years, or after reaching the age of 18 years until reaching the age of 23 years is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 C.F.R. §§ 3.57(a), 3.1000(d)(2).

In an August 2020 administrative decision, the RO determined that the appellant qualified as a proper substitute, as she is the Veteran's daughter. However, upon close review of the record, the appellant does not appear to meet the definition of a "child" for VA purposes, as she is not an unmarried helpless child, an unmarried child under 18 years of age, or an unmarried child in college under the age of 23. 

Therefore, the Board finds that additional development is necessary in the matter of whether the appellant may properly be substituted for the Veteran's claim. In particular, clarification is necessary as to the RO's analysis of the appellant's basic eligibility for substitution under the proper legal requirements. Additionally, further investigation is necessary to determine whether the appellant is entitled to reimbursement as the person who bore the expense of last sickness and burial.

The matters are REMANDED for the following action:

1. The RO should undertake any and all development necessary to determine whether the appellant is a proper substitute in this matter, to include whether she bore the expense of the Veteran's last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5).

2. When the above development is completed, the RO should readjudicate the issue of whether the appellant is a proper substitute.

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Stuedemann, A.

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.