Citation Nr: 22018996 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 15-33 999 DATE: March 31, 2022 REMANDED The claim for additional accrued benefits is remanded. REASONS FOR REMAND In August 2018, the Board denied this claim. The Veteran appealed the Board's August 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2021, the Court issued an Order vacating the August 2018 Board decision. 1. The claim for additional accrued benefits is remanded. The appellant argues that she is entitled to additional accrued benefits. She asserts the following: She was the Veteran's caregiver between April 2002 and his death in March 2007. She provided assistance to the Veteran on essentially a full-time basis, i.e., 24 hours a day, seven days a week, 365 days a year. Her services included cleaning, meal preparation, assistance with the Veteran's activities of daily living, transportation to medical appointments, and care management. The value of her services was $7,600.00 per month, or $311,000.00 over 41 months. In August 2018, the Board denied this claim. The Board stated the following: On October 28, 2002, the RO received the Veteran's claim for increased compensation for his service-connected heart disability. At the time the Veteran's death in March 2007, service connection was in effect for rheumatic heart disease, evaluated as 100 percent disabling, effective May 16, 2001, and prostatitis, evaluated as noncompensable, effective July 8, 1965. In November 2013, the RO determined that the issue of SMC had been raised by the evidence, and granted special monthly compensation based on the need for aid and attendance at the 38 U.S.C. § 1114 (l)(1) rate ("L-1"), effective from October 28, 2002, for accrued benefits purposes. The RO granted the appellant accrued benefits for the period from October 28, 2002, to March [redacted], 2007. The RO stated that the appellant had been awarded a total of $29,656.00 in accrued benefits based on the following: $528.00 for the period from October 28, 2002 to November 30, 2002, $6,420.00 for the period from December 1, 2002 to November 30, 2003, $6,552.00 for the period from December 1, 2003 to November 30, 2004, $6,732.00 for the period from December 1, 2004 to November 30, 2005, $7,008.00 for the period from December 1, 2005 to November 30, 2006, and $2,416.00 for the period from December 1, 2006 to March [redacted], 2007. The Board stated that a claim for accrued benefits is derivative of a claim made by a veteran during his life. Citing Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Therefore, an award to the appellant based on expenses incurred in connection with the Veteran's last sickness may not exceed the amount of accrued benefits. The Board determined that an effective date for SMC was not warranted prior to October 28, 2002, and that additional accrued benefits based on an increased rate of SMC were not warranted. The Court did not take issue with the Board's conclusion that an effective date prior to October 28, 2002, for SMC was not warranted. Rather, it determined that the Board failed to explain how VA calculated the $29,656 figure, and stated that "without this information, we are unable to effectively review whether the Board properly adjudicated her claim. Thus, we must remand." Given the foregoing, a remand is warranted for the RO to: 1) determine whether SMC is warranted at a rate above the rate at 38 U.S.C. § 1114 (l)(1) ("L-1") for accrued benefits purposes, 2) determine the total amount of accrued benefits payable, 3) determine the full amount that the appellant bore in the expense of the Veteran's last sickness for the period from October 28, 2002, to March [redacted], 2007, see 38 U.S.C. § 5121(a)(6) and 38 C.F.R. § 3.1000 (a)(5), 4) determine and fully explain the basis for the November 2013 grant of $29,656.00 in accrued benefits to the appellant, and 5) determine whether or not additional accrued benefits are payable. The matters are REMANDED for the following action: 1. Determine whether SMC is warranted at a rate above the above the rate at 38 U.S.C. § 1114 (l)(1) ("L-1") for accrued benefits purposes. 2. Determine the total amount of accrued benefits payable. 3. Determine the full amount that the appellant bore in the expense of the Veteran's last sickness for the period from October 28, 2002, to March [redacted], 2007. 4. Determine and fully explain the basis for the November 2013 grant of $29,656.00 in accrued benefits to the appellant. 5. Determine whether or not additional accrued benefits are payable. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.