Citation Nr: 22040136 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-15 082 DATE: July 13, 2022 REMANDED Entitlement to a higher rate of special monthly compensation (SMC), for accrued purposes only, to include whether the appellant was properly recognized as substitute claimant, is remanded. REASONS FOR REMAND The Veteran served on active duty the United States Marine Corps from April 1954 to October 1973. The Veteran died in November 2017. The appellant, RB, is the Veteran's adult son who represents a class of potential substitutes and accrued benefits beneficiaries which includes his brother, DB. RB and DB both filed claims for accrued benefits simultaneously, and as such, RB was selected as the class representative under 38 C.F.R. § 3.1010(e)(3). This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to an increased level of SMC. This decision was appealed in a notice of disagreement (NOD) received by VA in December 2018. A Statement of the Case (SOC) was issued by VA in February 2019. VA received the appellant's Substantive Appeal (Form 9) in March 2019, requesting a hearing before the Board and perfecting the appeal. The appellant and his brother appeared before the undersigned Veterans Law Judge for a hearing in October 2021. A transcript of that hearing has been added to the claims folder and was considered in the decision here. As a preliminary matter, the Board notes that it has recharacterized the issue on appeal to better reflect and clarify the issue on appeal. As the claim is being remanded, there is no prejudice to the appellant in the recharacterization of the issue. 1. Entitlement to a higher rate of special monthly compensation (SMC), for accrued purposes only, to include whether the appellant, and the class of claimants he represents, was properly recognized as substitute claimant, is remanded. The appellant, on behalf of the class of potential claimants for substitution and accrued benefits purposes, has asserted that the Veteran, prior to his death, was entitled to a higher level of SMC than what he was being paid by VA. Specifically, he has contended that the Veteran should have been paid at the "r" rate of SMC. See 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). These assertions are based on the Veteran's having been rated in need of regular aid and attendance, and the appellant arguing that he also should have been recognized and compensated for having loss of use of both his feet due to service-connected disability in the months leading up to his death in November 2017. In reviewing the claim, the Board finds that remand of this issue is necessary to determine whether the appellant was properly recognized as a substitute claimant, whether the class he represents contains anyone who meets the criteria for substitution, whether there are accrued benefits available from which the appellant or the class he represents may be compensated, and whether he, and by extension the class he represents, meet the requirements to receive any accrued benefits pending at the time of the Veteran's death. Accrued benefits are defined as due and unpaid periodic monetary benefits to which a payee was entitled at his or her death under existing ratings or decisions or based on evidence in the file at date of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). An application for accrued benefits must be filed within 1 year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). A timely application for accrued benefits is deemed to include a request to substitute, if an appeal in a claim for periodic monetary benefits was pending before the AOJ when the claimant died. 38 C.F.R. § 3.1010(c)(2). A person eligible for substitution is defined as "a living person who would be eligible to receive accrued benefits due to the claimant...." 38 U.S.C. § 5121A. Upon the death of a veteran, any accrued and unpaid benefits are payable to the living person first listed as follows: (A) the veteran's spouse; (B) the veteran's children, as defined by VA (in equal shares); (C) the veteran's dependent parents (in equal shares). 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). Upon the death of a surviving spouse or remarried surviving spouse, any accrued and unpaid benefits are payable to the Veteran's children, as defined by VA. 38 C.F.R. § 3.1000(a)(2). Upon the death of a child, any accrued and unpaid benefits are payable to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. 38 C.F.R. § 3.1000(a)(3). Upon the death of a child claiming benefits under 38 C.F.R., chapter 18, any accrued and unpaid benefits are payable to the surviving parents. 38 C.F.R. § 3.1000(a)(4). In all other cases, only so much of the accrued benefit 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). The term "child," as defined by VA, 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 or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a). A "stepchild" may be the legitimate or illegitimate child of the Veteran's spouse. See 38 U.S.C. § 101(4)(A)(iii); 38 C.F.R. § 3.57(a), (b). In addition, such "child" must also be unmarried and either must be under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. With respect to the claim of any claimant who dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000(a), as listed in 38 C.F.R. § 3.1000(a)(1) through (5), may, in priority order, request to substitute for the deceased claimant in a claim for periodic monetary benefits under laws administered by the Secretary, or an appeal of a decision with respect to such a claim, that was pending before the agency of original jurisdiction or Board when the claimant died. 38 C.F.R. § 3.1010(a). Upon VA's grant of a request to substitute, the substitute may continue the claim or appeal on behalf of the deceased claimant for purposes of processing the claim or appeal to completion. Id. A person filing a request to substitute must provide evidence of eligibility to substitute. 38 C.F.R. § 3.1010(d). If a substitute dies while a claim or appeal is pending, another member of the same joint class or a member of the next preferred subordinate category listed in § 3.1000(a)(1) through (5) may substitute for the deceased substitute, but only if the person requesting the successive substation files a request to substitute no later than one year after the date of the substitute's death. 38 C.F.R. § 3.1010(g)(5). A veteran's estate or heirs are not eligible substitutes unless they otherwise meet the criteria to receive accrued benefits. See Youngman v. Shinseki, 699 F.3d 1301 (Fed. Cir. 2012) (holding that no payment can be made to a veteran's estate or any heir other than as designated in 38 U.S.C. § 5121(a)); see generally Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir. 1998) (holding survivors may not pursue disability compensation claims of a veteran, even as heirs to the veteran's estate). Therefore, the appellant and his brother are not eligible for recognition as a substitute claimant based on their status as co-executors of the Veteran's estate. The basic facts in this case are not in dispute. The appellant is the adult child of the Veteran and his now-deceased surviving spouse. The appellant's brother, who is a member of the class of potential claimants represented by the appellant, is also the adult child of the Veteran and his now-deceased surviving spouse. The evidence does not suggest that the appellant or his brother have qualified at any time during this appeal as a "child" of the Veteran, as that term is defined for VA purposes under 38 C.F.R. §§ 3.57 (meaning a child of the Veteran who was unmarried and under the age of 18 at the time of the Veteran's death, or had become permanently incapable of self-support before the age of 18, or had been between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution at the time of the Veteran's death). The appellant, and the other member of the class he represents, are adults over the age of 18 years old. Neither is under the age of 23 years old, nor pursuing an approved educational course of study. There is no evidence of record showing either is both unmarried and became permanently incapable of self-support before turning 18 years old. Therefore, the appellant, and the other member of his class, may recover only so much of the accrued benefits, if any, as may be necessary to reimburse either of them for expenses either of them personally incurred in connection with the Veteran's last sickness and burial. See 38 U.S.C. § 101(4)(A), 5121(a)(6); 38 C.F.R. § 3.1000(a)(5); see also Sucic v. Wilkie, 921 F.3d 1095 (Fed. Cir. 2019). As an initial matter, the Board notes that the record does not indicate if any accrued benefits are even available for the payment of the claims made in this case. The Veteran had been declared incompetent to handle his own funds in July 2017 and by the time he died in November 2017 a fiduciary had not yet been approved to handle the Veteran's funds on his behalf. On remand, an accounting should be made and provided to the appellant indicating what, if any, accrued funds are in existence in relation to this claim. While the record reflects that the Veteran himself, and following his passing his estate, paid many of the expenses of his last sickness and burial, and substitution and entitlement to accrued benefits are not warranted based on those expenses paid by him or the estate, is not clear from the record whether the appellant, or another member of the class he represents, personally incurred any expenses in connection with the Veteran's last sickness and burial. As noted in greater detail below, neither the appellant, nor any member of the class he represents, has submitted evidence indicating that they personally incurred any expenses related to the Veteran's last sickness or burial. However, it does not appear they were notified of what evidence they needed in order to establish entitlement to accrued benefits as required by regulation. See 38 C.F.R. § 3.1000(c)(1). Therefore, remand is necessary to determine whether the appellant, or any member of the joint class which the appellant represents, personally incurred any expenses in connection with the Veteran's last sickness and burial. The appellant and his brother should be notified of the type of information required to complete their application for accrued benefits, which in this case would mean evidence showing they are a child of the Veteran, within VA's definition of child, or that either of them personally incurred expenses as part of the Veteran's last sickness or burial. 38 C.F.R. § 3.1000(c)(1). As noted above, accrued benefits cannot be used to reimburse the estate itself as a legal entity for any expenses paid on the Veteran's behalf. Of note, the Board has reviewed the letter from the RO granting substitution from June 28, 2019. While the appellant's name is listed in the address at the top of the letter, and the body of the grant of substitution refers to the claim for accrued benefits he had filed in January 2018, the letter is addressed to a Mrs. C, presumably the Veteran's surviving spouse. However, the Board notes that the Veteran's spouse pre-deceased him and there is no indication that he remarried prior to his death. In their VA Form 21-601's, received simultaneously by VA in January 2018, the Board notes that both the appellant and his brother waived substitution; however, the RO still granted substitution, again seemingly without verifying their eligibility to substitute. On remand, the RO should clarify who has been approved as a substitute in the Veteran's claim pending at the time of his death and after the appropriate development, readjudicate whether the appellant or his brother qualify as substitute in this case. Considering all this, it is unclear whether substitution was properly granted in this case, as the evidence currently of record does not show that either the appellant or his brother personally incurred any of the expenses of the Veteran's last sickness or burial. It is also unclear what, if any, accrued funds are available from which to draw on for payment of accrued benefits. As such, the Board finds that remand is necessary so that the RO may correct these procedural errors. Finally, should the procedural issues be resolved, the Board notes that the question of whether the appellant had experienced loss of use of his feet, as that term is defined by VA, due to his service-connected disabilities only in the months prior to his death, is a question that requires a medical opinion to answer. Evidence shows the appellant was bedridden and did not regularly use his feet; however, it is unclear if this was due to a service-connected disability, or combination of service-connected disabilities, and if there truly was loss of use of the feet as VA understands the term. For reference, VA defines loss of use of a foot to be when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350 (a)(2). Being unable to get out of bed due to general weakness or malaise is not sufficient. Additionally, loss of use of the feet has to be attributable, whether directly or indirectly, at least in part, to a service-connected disability. The matters are REMANDED for the following action: 1. Provide the appellant, as representative of the potential class of beneficiaries, and his representative in this claim, with an accounting of all accrued benefits payable at the time of the Veteran's death. Of note, the Veteran was found incompetent in a July 2017 rating decision and a fiduciary had not yet been selected at the time of his death in November 2017. 2. Notify the appellant and his brother that they have not provided the information necessary to establish that they are entitled to accrued benefits, either as children of the Veteran, as that term is understood by VA, or as persons who bore the cost of the Veteran's last sickness or burial. Request that they provide information establishing their entitlement to accrued benefits. Perform any necessary development to determine if the appellant, RB, or any member of the joint class he represents, to include his brother DB, personally incurred any expenses related to the Veteran's last sickness and burial. 3. Readjudicate whether the appellant, and the class of claimants he represents, is properly recognized as a substitute claimant in light of his prior assertions that the Veteran himself, and following his death the Veteran's estate, incurred the costs of the Veteran's last sickness and burial. 4. If it is determined that there are accrued benefits from which benefits may be paid and that the appellant, or any member of the potential class of appellants, is a valid substitute or entitled to receive accrued benefits due to having personally borne the costs of the appellant's last sickness and burial, obtain a medical opinion to determine whether the Veteran had loss of use of both feet as understood by VA. See 38 C.F.R. § 3.350(a)(2) for VA's definition of loss of use of the feet. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.