Citation Nr: 21041508 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-59 352 DATE: July 9, 2021 REMANDED The matter of whether the Appellant may be paid the benefits withheld for the period of October 1, 2012, through October 31, 2013 from the beneficiary's (A.'s) retroactive special monthly pension award, pending the resolution of her competency status and appointment of a fiduciary, is remanded. REASONS FOR REMAND The Veteran died in September 1999. His surviving spouse, A., was granted entitlement to aid and attendance benefits in an October 2013 rating decision. The aid and attendance benefits were established effective from September 10, 2012. At that time, a finding of incompetency was proposed. In an October 30, 2013 letter, A. was advised that she had been granted death pension benefits with special monthly pension (aid and attendance benefits). The initial date of payable entitlement was the first day of the month following the grant of the benefits from September 10, 2012, which was October 1, 2012. See 38 C.F.R. § 3.31. However, since there was a proposal of incompetency, the Regional Office (RO) indicated that a retroactive payment of benefits would be withheld while that matter was being addressed. Specifically, A. was advised of the following: There has been a proposal to rate you incompetent for VA purposes. We have withheld retroactive benefits from October 1, 2012, through October 31, 2013, pending a formal determination of competency to handle your VA benefits. The issue of competency will be addressed by separate correspondence. We are releasing your monthly benefits effective November 1, 2013. You will receive your first check on or around December 1, 2013. We have withheld all retroactive benefits until a fiduciary has been appointed or you have been determined to be competent for VA purposes. In correspondence, A. responded to the incompetency proposal and indicated that she was not disputing that finding and wanted her son, the Appellant, appointed as her fiduciary. Thereafter, a January 2014 rating decision determined that A. was incompetent. However, A. then died the same month. In March 2014, A.'s Estate was notified that VA had received information from the Social Security Administration (SSA) that A. passed away in January 2014. Based on this notice, VA stopped paying VA benefits as of the first of the month of January 2014 as this was the month in which the reported death occurred. In addition, VA also stopped processing the claim VA had pending for her, which was dated October 30, 2013. A.'s Estate was also advised that the RO's records showed one or more VA payments may have been due to A. prior to her death and that the RO could use these amounts to reimburse the person who paid the expense of the last illness and burial, or the person who is responsible for payment. In March 2014, the Appellant's claim for accrued benefits was received. In August 2014, the Appellant was furnished a letter informing him of information regarding his claim for accrued benefits. The Appellant completed a VA Form 21-601 and provided documentation with regard to A.'s burial expenses. In February 2015, VA notified the Appellant that his claim for accrued benefits was granted because A. was owed money at the time of her death. He was told that he would receive a check in the amount of $2,950.80, payable to him for last expenses ($1,655.00 to Aspen Mortuary and $1,295.00 to Kirkwood Funeral Home). In March 2015, the Appellant submitted an additional claim for accrued benefits, However, in April 2015, the Appellant was thereafter denied his claim for additional accrued benefits on the basis that he had not timely filed that claim. The Statement of the Case (SOC) addressed the amounts representing the last expenses, indicating that the Veteran had been granted $2,950.80, for last expenses ($1,655.00 to Aspen Mortuary and $1,295.00 to Kirkwood Funeral Home). The SOC indicated that the additional claim, received in March 2015, for other expenses, was denied as not being timely. These expenses consisted of a new expense of $830.88 paid to Mountain Vista Assisted Living as well as expenses paid to Mountain Vista Assisted Living totaling $83,088.00 from 2012 to 2014. At his Board of Veterans' Appeals (Board) hearing before the undersigned, the Appellant clarified that he was seeking the payments (all monies) owed to A. for the period of October 1, 2012, through October 31, 2013. He expressed that he was supposed to be named her fiduciary. As noted above, VA was in the process of determining that A. was incompetent, but the rating decision which made that decision was the same month as A.'s death, so no fiduciary was named. Thus, the Appellant is seeking funds outside of those previously addressed by the RO which were the last expenses and the burial expenses. The Board notes that on remand, the matter of whether the Appellant may be paid the benefits for A.'s special monthly pension award (for the period from October 1, 2012, through October 31, 2013) which were the monies withheld from the retroactive award of special monthly pension pending the resolution of the competency matter must be addressed, and, if denied, that matter must be addressed in a Supplemental Statement of the Case (SSOC). (Continued on the next page) The matters are REMANDED for the following action: Address whether the Appellant may be paid all the benefits withheld for the period of October 1, 2012, through October 31, 2013 from A.'s retroactive special monthly pension award, pending the resolution of her competency status and appointment of a fiduciary (as noted, no fiduciary had been appointed prior to A.'s death) . If the issue is denied, the Appellant should be provided with an SSOC as to the issue on appeal and afforded a reasonable period of time within which to respond thereto. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals J. Connolly, Attorney for the Board Department of Veterans Affairs 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.