Citation Nr: 21042208 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-24 276 DATE: July 12, 2021 ORDER Entitlement to nonservice-connected burial benefits is granted. Entitlement to accrued benefits, to include unpaid service-connected Department of Veterans Affairs (VA) compensation benefits, is denied. FINDINGS OF FACT 1. The Appellant submitted an application for burial benefits in June 2018, with an accompanying itemization of final costs paid by personal funds. 2. The Appellant is not a "child" for VA accrued benefits purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to nonservice-connected burial benefits have been satisfied. 38 U.S.C. §§ 2302, 2304; 38 C.F.R. §§ 3.1703, 3.1705. 2. The criteria for entitlement to accrued benefits, to include unpaid service-connected VA compensation benefits, have not been satisfied. 38 U.S.C. §§ 5112, 5121; 38 C.F.R. §§ 3.500, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from May 1942 to June 1944, and in the United States Navy from September 1944 to June 1946. The Veteran died in May 2018 and the Appellant is his surviving child. The matter is before the Board of Veterans' Appeals (Board) from a decision of a VA Regional Office (RO). It was previously before the Board in September 2019, where it was denied. Thereafter, the Appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Memorandum Decision, the Court set aside the September 2019 decision and remanded the matter back to Board. It now returns for action consist with the Court's decision. 1. Burial benefits. As an initial matter, the Board finds that the Appellant is entitled to nonservice-connected burial benefits. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. The Board will principally cite the new regulations, in effect at the time the Appellant's claim was filed in June 2018. Claims for a burial allowance may be advanced only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." at 38 C.F.R. § 3.1702(b)(3). The Veteran died in May 2018. In her June 2018 VA Form 21P-530, Application for Burial Benefits, the Appellant solely requested nonservice-connected benefits. Accordingly, only eligibility for burial benefits on a nonservice-connected basis will be considered. Where a veteran's death is not service-connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of burial may be payable, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the veteran's body. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703(a). Specifically, if the cause of a veteran's death is not service-connected, entitlement is based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation (or (2) but for the receipt of military retirement pay would have been in receipt of compensation; or,) (3) the veteran had an original claim for either benefit pending at the time of his death for which there was evidence available on the date of death to support the award for compensation or pension or, (4) in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, (5) the deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and the body of the deceased is being held by a State (or a political subdivision of a State), and the Secretary determines, (i) that there is no next of kin or other person claiming the body of the deceased veteran, and (ii) that there are not available sufficient resources in the veteran's estate to cover burial and funeral expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b), (c). Alternatively, a burial allowance may be paid if a veteran dies from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. See 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1706(b), (d). Here, the Veteran was in receipt of VA compensation at the time of his death. In a July 2018 notice letter, the Agency of Original Jurisdiction (AOJ) noted records showed one or more VA payments were due to the Veteran prior to death and those amounts can be used to reimburse the person who paid the expense of his last illness and burial or the person who is responsible for payment. The Board originally denied the claim in September 2019, however, finding that, while an application for burial benefits was received in June 2018, it was not accompanied by an evidence that the Appellant bore any actual personal expenses. As the Court noted in its October 2020 Memorandum Decision, however, the record does contain not only two VA Form 21P-530's, but receipts of funeral costs and an itemization of final costs incurred by the Appellant. As the burial application was timely, the Appellant paid for the Veteran's burial expenses, and the Veteran was in receipt of VA compensation at the time of death, the claim for nonservice-connected burial benefits is granted. 38 C.F.R. § 3.1705. As regards an additional transportation allowance under 38 C.F.R. § 3.1709, VA will reimburse the costs of transportation only if a veteran was buried in a national cemetery. See 38 C.F.R. § 3.1709. Here, not only was the Veteran was indeed buried in a national cemetery, at Fort Snelling National Cemetery in South Minneapolis, Minnesota, July 2018 correspondence from the AOJ indicates that a transportation reimbursement has already been authorized. 2. Accrued benefits. The Appellant asserts that the Veteran's VA compensation payments were improperly terminated upon the death of the Veteran's wife in 2015, and that accrued benefits are due to from that date until the date of his death in May 2018. The record reflects that the Veteran was service-connected for a disability and his combined service-connected evaluation was 10 percent. In a June 2015 letter sent to "estate of [the Veteran]," the AOJ incorrectly noted that the Veteran died on June [REDACTED], 2015, his service-connected VA compensation benefits were terminated effective June 1, 2015, and if the notice of death was erroneous to call or write immediately to resume payments. As noted above, the Veteran actually died in May 2018, and the Board finds that it was the Veteran's wife who died in June 2015. No response was received regarding the error in the June 2015 notice letter, however, until the Veteran's death in 2018. Unfortunately, and while the Board is not unsympathetic to the Appellant and recognizes VA's error in the June 2015 notice letter, for the reasons below the Appellant is not an eligible recipient of any benefits that were due and unpaid to the Veteran at the time of his death. Accrued benefits are those benefits that were due and unpaid to a claimant who was entitled at the time of death under an existing rating or based on evidence in the file on the date of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). An eligible recipient may be paid monetary benefits to which a claimant was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when the claimant died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). An "eligible recipient" is a living person who would be eligible to receive accrued benefits due to the claimant. Such individuals are (a) the Veteran's spouse, (b) the Veteran's child, (c) the Veteran's surviving dependent parent, or (d) the person who bore the expense of the claimant's last sickness and burial to the extent as to reimburse him or her for such expenditures. 38 U.S.C. § 5121(a). Review of the record shows the Veteran died in May 2018 and his death certificate lists his marital status as "widowed (and not remarried)." Moreover, throughout the appeal period, the Appellant consistently reported that the Veteran's wife died in June 2015. Since the Veteran did not have a surviving spouse at the time of his death, the Board finds the Appellant is not the Veteran's surviving spouse. Additionally, there is no indication of record, nor does the Appellant assert, that she is the Veteran's surviving dependent parent. Next, the Board considers whether the Appellant is an "eligible recipient" to receive accrued benefits as the Veteran's child. For VA purposes, the term "child" means a person who is (a) unmarried; (b)either (i) who is under the age of 18 years; (ii) who, before attaining the age of18years, became permanently incapable of self-support; or (iii) who, after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years), is pursuing a course of instruction at an approved educational institution; and (c) who is a legitimate child, a legally adopted child, a stepchild who is a member of a Veteran's household or was a member at the time of the Veteran's death, or an illegitimate child but, as to the alleged father, only if acknowledged in writing signed by him, or if he has been judicially ordered to contribute to the child's support or has been, before his death, judicially decreed to be the father of such child, or if he is otherwise shown by evidence satisfactory to the Secretary to be the father of such child. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a); Sucic v. Shulkin, 29 Vet. App. 121, 126 (2017). In a June 2018 VA Form 21P-601, Application for Accrued Amounts due to a Deceased Beneficiary, the Appellant identified herself as the Veteran's daughter and over the age of 18 years. While the Board finds no reason to question whether the Appellant is a (c) legitimate child of the Veteran, review of the record both before and since the Board's previous denial continues to be silent as to whether she is also (a) unmarried and (b) became permanently incapable of self-support before turning the age of 18 years or pursued a course of instruction at an approved educational institution after the age of 18 years and until completion of education or training (but not after the age of 23 years). In sum, while the Appellant is the Veteran's daughter, she is not a "child" for VA accrued benefits purposes. Thus, the Board finds that the criteria for the Appellant to be an eligible recipient of any benefits that were due and unpaid to the Veteran at the time of his death (accrued benefits) have not been met, and the claim for unpaid service-connected VA compensation benefits must again be denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.