Citation Nr: 21048020 Decision Date: 08/05/21 Archive Date: 08/05/21 DOCKET NO. 17-53 893 DATE: August 5, 2021 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is not the Veteran's "child" per the statutory definition of that term for VA purposes; she has not provided proof that she bore the cost of the Veteran's final illness and burial. CONCLUSION OF LAW The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 101 (4), 1542, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.57, 3.950. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1948 to June 1952. 1. Entitlement to accrued benefits The appellant contends that as fiduciary of the Veteran, she is entitled to the accrued benefits from the Veteran's special monthly compensation based on aid and attendance. Accrued benefits are periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid. Accrued benefits shall, upon the death of such individual, be paid to the living person first listed below: (i) the Veteran's spouse; (ii) the Veteran's children (in equal shares); (iii) the Veteran's dependent parents (in equal shares). 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). To be eligible for accrued benefits, the claimant must qualify as a member of one of the statutorily enumerated categories of recipients listed above. See Burris v. Principi, 15 Vet. App. 348, 352-53 (2001) (concluding that a 70-year-old appellant was ineligible for accrued benefits because he did not satisfy statutory definition of "child" in 38 U.S.C. § 101 (4)(A) which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial." 38 U.S.C. § 5121 (a)(5). The definition of the term "child" of the Veteran as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the Veteran's household at the time of the veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4); 38 C.F.R. § 3.57 (a). The evidence reveals that the Veteran died in January 2017. On February 14, 2017, the Appellant filed a request for substitution of claimant upon death requesting accrued benefits owed for the out of pocket expenses for nursing home care, medications, and treatments. In a May 2017 decision, the Appellant's claim for accrued benefits was denied as she did not qualify as a "child" under the controlling regulation and she had not submitted evidence showing that she incurred any burial expenses, last sickness expenses or any debts as result of her father's death. In a June 2017 notice of disagreement, the Appellant contended that she was entitled to the back pay for aid and attendance that accrued while her appointment as fiduciary was pending. An August 2017 correspondence informed the Appellant that a completed VA Form 21-601, Application for Accrued Amounts Due A Deceased Beneficiary with proof of payments for any expenses was needed and the required forms were enclosed. The Appellant did not complete the forms responding that she had no other evidence to provide in support of the claim and in an August 2017 statement she stated that she is only seeking the back pay for special monthly compensation and not money for final expenses or burial. As noted above, accrued benefits, other than those necessary to reimburse the person who bore the expense of last sickness and burial" may only be paid to certain beneficiaries, including a spouse, the Veteran's children, or the Veteran's dependent parents. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). Although the Appellant is the Veteran's daughter, she is his adult daughter and has not provided any evidence that she became permanently incapable of self-support prior to age 18, or up to age 23 and pursuing approved higher education. Consequently, she does not qualify for receipt of accrued benefits as she has not been shown to meet the statutory definition of "child" for VA purposes. Therefore, as the Appellant does not meet VA's definition of a child, she can only qualify for receiving accrued benefits if she establishes that she bore the expense of the Veteran's last sickness and/or burial. See 38 U.S.C. § 5121(a)(6). However, the Appellant did not provide any evidence of paid expenses related to the Veteran's last illness or burial and made clear that she is not seeking reimbursement of final expenses. See Appellate Brief October 2020 and Statement in Support of Claim August 2017. As such, as the record does not contain any evidence of costs related to last illness and burial. Therefore, while the Appellant asserts that as fiduciary she is due the retroactive award for special monthly compensation due to the Veteran prior to his death, this is precluded by law which establishes the allowed beneficiaries in these cases. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit have repeatedly affirmed that accrued benefits claims by persons other than those listed in section 5121(a) are not viable as a matter of law. See, e.g., Youngman v. Shinseki, 699 F.3d 1301 (Fed. Cir. 2012) (denying accrued benefits to a deceased Veteran's fiduciary for distribution to the Veteran's heirs); Pelea v. Nicholson, 497 F.3d 1290 (Fed. Cir. 2007) (denying accrued benefits to deceased claimant's estate); Morris v. Shinseki, 26 Vet. App. 494 (2014) (holding that the Veteran's brother and fiduciary was not an eligible claimant for accrued benefits); Caranto v. Brown, 4 Vet. App. 516 (1993) (holding it was necessary to determine whether a Veteran's daughter was a "child" per VA's definition for purposes of accrued benefits as she was otherwise ineligible to pursue an accrued benefit claim). Thus, the record does not establish that the Appellant incurred expenses related to the Veteran's care during his last sickness or burial and she is not entitled accrued benefits due to her father at the time of his death on any other basis, as she does not meet the definition of a beneficiary to whom accrued benefits may be paid. 38 U.S.C. § 5121. (Continued on the next page) Accordingly, the claim for accrued benefits are denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.