Citation Nr: 22018055 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-66 252 DATE: March 28, 2022 REMANDED Entitlement to accrued benefits in excess of $761.22 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1946 to August 1946. He died in October 1974. The Appellant is the adult child of the Veteran's late surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2017 decision which denied accrued benefits in excess of $761.22. In November 2021, the Appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing. A copy of the transcript is of record. Entitlement to accrued benefits in excess of $761.22 is remanded. The Appellant contends that she is entitled to additional accrued benefits. Specifically, she contends that the Veteran's surviving spouse was owed benefits at the time of her death. The Appellant also contends that she helped pay the surviving spouse's assisted living fees. Periodic monetary benefits to which a VA beneficiary was entitled at death, either by reason of existing VA ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). Following the timely filing of a proper claim, such benefits will be paid according to a statutorily prescribed order of distribution. Upon the death of a surviving spouse receiving VA benefits, accrued benefits are paid to the veteran's children. 38 C.F.R. § 3.1000(a)(2). The term "child of the veteran" means an unmarried person who is under the age of 18 years, or who, before reaching the age of 18 years, became permanently incapable of self-support. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. 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 or burial. 38 C.F.R. § 3.1000(a)(5). By way of background, the surviving spouse filed an Intent to File for survivor's pension benefits on April 24, 2015. On her June 2015 VA 21-534 (Application for DIC, Death Pension, and/or Accrued Benefits), the surviving spouse reported paying $5,940 per month in assisted living fees, among other medical expenses. In a December 2015 notification letter, VA granted survivor's pension benefits with an aid and attendance allowance and calculated the surviving spouse's pension benefit using the assisted living fees as a continuing deduction from May 1, 2015. VA withheld the payment of retroactive pension benefits from May 1, 2015, pending the appointment of a fiduciary, and began payments from December 1, 2015. However, before the withheld benefits could be distributed, the surviving spouse died in January 2016. The Appellant contends that she paid at least some of the surviving spouse's assisted living fees. See December 2017 VA Form 9 (Appeal to Board of Veterans' Appeals). In January 2017, the Appellant submitted invoices from the assisted living facility showing the surviving spouse as the responsible party for at least one month, and the Appellant as the responsible party for the remaining months. The invoices do not indicate who actually paid the invoices. In the April 2017 decision on appeal, VA denied the award of additional accrued benefits, finding that the Appellant could not claim last expenses if those expenses were also claimed by the surviving spouse and used to calculate her pension benefits. The Board finds that it is not clear whether the Appellant or the surviving spouse paid, in whole or part, the surviving spouse's assisted living expenses. Although VA used the assisted living fees as a continuing expense to calculate the surviving spouse's pension benefit prospectively, it is possible that the Appellant paid some of those expenses subsequent to the surviving spouse's July 2015 pension claim. The Board notes that VA calculated the surviving spouse's income as $60,433 and medical expenses as $72,538, resulting in a countable income of zero for VA pension purposes for the initialization period. As such, it is possible that a reduction in the total amount of medical expenses could occur while maintaining a countable income of zero and without reducing the award of the surviving spouse's pension benefit. As such, the Board finds that a remand is warranted to obtain additional information from the Appellant as to the expenses she actually paid for the surviving spouse. Subsequently, VA should recalculate the surviving spouse's pension benefit and determine whether the Appellant is entitled to additional accrued benefits. The matter is REMANDED for the following actions: 1. Contact the Appellant and ask that she provide an accounting of expenses she paid relating to the surviving spouse's last illness, to include assisted living fees, and any documentation showing she paid these expenses, such as cancelled checks or bank statements. 2. Recalculate the surviving spouse's pension considering any expenses paid by the Appellant rather than the surviving spouse. 3. After completing the above, and any other development as may be indicated, the Appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Appellant and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.