Citation Nr: 22015473 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-38 301 DATE: March 17, 2022 ORDER Entitlement to accrued benefits is denied. FINDING OF FACT The appellant is not shown to have borne expenses in connection with the last sickness and burial of the Veteran's surviving spouse. CONCLUSION OF LAW The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101, 5121, 5310; 38 C.F.R. §§ 3.57, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1950 to September 1952, and from October 1952 to May 1954. His decorations included the Korean Service Medal, the United Nations Service Medal, and the National Defense Service Medal. Unfortunately, he died in September 2014. In a March 2016 rating decision, the Veteran's surviving spouse was awarded survivor's pension benefits with an aid and attendance allowance, and a finding of incompetency was proposed. Unfortunately, she died in August 2016. The appellant is the adult daughter of the Veteran and his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2016 determination by a Department of Veterans Affairs (VA) Regional Office. In her June 2017 substantive appeal, the appellant indicated that she wanted to appear at a Board hearing. However, the hearing request was later withdrawn in November 2021. See 38 C.F.R. § 20.704(e). Entitlement to accrued benefits is denied. The appellant seeks accrued benefits based on amounts due, but unpaid, to the Veteran's surviving spouse (the appellant's mother) at the time of her death in August 2016. Under 38 U.S.C. § 5121(a), upon the death of a veteran's surviving spouse, periodic monetary benefits to which the individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (referred to as "accrued benefits"), and due and unpaid, shall be paid to the veteran's "children." 38 U.S.C. § 5121(a)(3); 38 C.F.R. § 3.1000(a)(2). 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)(6); 38 C.F.R. § 3.1000(a)(5). Establishing that a person is the veteran's biological son or daughter is insufficient, in and of itself, to establish entitlement to accrued benefits under 38 U.S.C. § 5121(a)(3) and 38 C.F.R. § 3.1000(a)(2). Rather, it must also be shown that the claimant qualifies as a "child." For accrued benefits purposes, the term "child" is defined, in pertinent part, as: [A]n 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 or was a member of the Veteran's household at the time of the Veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, 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 educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57(a); see also 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.1000(d)(2). In the present case, while the record reflects that the appellant is the Veteran's daughter, the evidence does not in any way suggest that she has qualified at any time during the period on appeal as a "child" of the Veteran, as that term is defined for purposes of accrued benefits under 38 C.F.R. § 3.1000(d)(2). Therefore, she may recover only so much of the accrued benefits, if any, as may be necessary to reimburse her for expenses she personally incurred in connection with her mother's last sickness and burial. See 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Following review of the record, the Board finds that the evidence is persuasively against a finding that the appellant is entitled to accrued benefits. Specifically, the Board finds that the appellant has not met her burden of establishing that she personally incurred expenses in connection with the last sickness or burial of the Veteran's surviving spouse. On an August 2016 VA Form 21-601, the appellant asserted that she paid $2,643.20 in Medicare expenses on behalf of the Veteran's surviving spouse. However, she did not provide any documentation showing that she personally paid any such expenses. On her August 2016 VA Form 21-601, the appellant also asserted that she paid $22,900 in nursing home expenses on behalf of the Veteran's surviving spouse. The appellant provided evidence that the monthly cost of her mother's nursing home expenses was $1,300 per month. See, e.g., May 2014 and November 2015 statements by Dr. M.T. The appellant also submitted copies of bank statements from 2014 and 2015 on which she hand wrote next to debit amounts of $1,300 dated September 25, 2014 and November 20, 2014 that those amounts were paid for her mother's nursing home expenses. However, the appellant did not provide copies of those checks verifying that those payments were made to her mother's nursing home. The appellant did not otherwise provide any receipts from the nursing home facility showing that she, rather than her mother, paid those expenses. The Board also notes that the above-referenced nursing home fees were used in calculating the appellant mother's entitlement to survivor's pension benefits while she was living. If those fees were not counted in determining entitlement to pension benefits, her mother may not have been entitled to the pension benefits she was awarded. The appellant has not otherwise submitted any documentation to show that she paid for any of the last sickness and burial expenses of the Veteran's surviving spouse. In the absence of such evidence, the Board must find that the evidence is persuasively against her claim. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.