Citation Nr: A24026331 Decision Date: 05/17/24 Archive Date: 05/17/24 DOCKET NO. 231016-388858 DATE: May 17, 2024 REMANDED Entitlement to accrued benefits is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2023 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for accrued benefits that were due and unpaid to her aunt, the Veteran's surviving spouse, at the time of her death in December 2020 based on a retroactive award of an aid and attendance allowance. Specifically, the March 2023 decision notice informed the appellant that her claim was filed on the wrong form and was also not received within one year of the Veteran's surviving spouse's death. In October 2023, the appellant filed a timely notice of disagreement and requested appellate review of the March 2023 decision via the Board's hearing docket. The appellant appeared at a hearing before the undersigned in February 2024. A transcript of the hearing is of record. In accordance with the provisions of the Appeals Modernization Act (AMA), the Board's review in this case encompasses evidence considered by the Agency of Original Jurisdiction (AOJ) in the March 2023 decision, as well as evidence submitted by the appellant within ninety days of her February 2024 Board hearing. See 38 C.F.R. § 20.302(a). The Board cannot consider evidence associated with the claims file between the issuance of the March 2023 decision and the February 2024 Board hearing or any evidence associated with the claims file after the end of ninety-day evidence submission window following the February 2024 Board hearing. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision; however, the AOJ will consider such evidence when it initially adjudicates the merits of the claim for the reasons discussed below. See 38 C.F.R. § 20.300; see also Cook v. McDonough, 36 Vet. App. 175 (2023). The appellant is advised to file a supplemental claim if she desires consideration of any evidence that is not currently associated with the claims file. See 38 C.F.R. § 3.2501. On appeal, the appellant asserts she filed a timely accrued benefits claim but was deprived of the opportunity to submit the necessary evidence to support her status as a proper accrued benefits claimant due to a misleading notice sent to her by the AOJ in March 2021 following her initial claim. The record indeed shows the appellant filed a VA Form 21-0847 (Request for Substitution of Claimant Upon Death of Claimant) in efforts to seek benefits that were due an unpaid to her aunt - the Veteran's surviving spouse - at the time of her death in December 2020. Thereafter, the AOJ sent the appellant a March 2021 decision notice that indicated she was not eligible for accrued benefits because she was not a dependent of the beneficiary. The March 2021 decision further noted the appellant failed to report any expenses related to her aunt's last sickness and burial on her March 2021 claim, which is not contemplated by VA Form 21-0847, but failed to properly advise her of the opportunity to submit such evidence in the one-year period thereafter to establish eligibility as an accrued benefits claimant - as required by statute. See 38 U.S.C. § 5121(c). Following the March 2021 decision notice, the appellant submitted a joint claim with her cousin - P.R., the Veteran's and his surviving spouse's son - on VA Form 21-0847, a form which the Board again reiterates does not contemplate the reporting of expenses related to the last sickness and burial. During her February 2024 Board hearing, the appellant testified that, based on the information provided in the March 2021 decision notice, she thought the claim for accrued benefits must be made in conjunction with a child of the beneficiary, such as P.R., even though she was seeking reimbursement of funds she paid to P.R. to provide care for his mother during her last illness. The appellant further testified she paid P.R. to care for his mother to allow him to quit his job because he made less working than it would cost to pay for twenty-four hour, in-home care for her aunt. In April 2021, the AOJ sent notice that the second VA Form 21-0847 submitted in March 2021 did not contain the necessary information to establish entitlement to accrued benefits with notice that expenses related to the Veteran's surviving spouse's last sickness and burial could be submitted within the following year to establish such eligibility. Following the April 2021 decision notice, the appellant and P.R. submitted several supplemental claims noting various expenses alleged to be related to the Veteran's surviving spouse's last sickness and burial. Yet, in March 2023, the AOJ issued the decision notice that led to the present appeal, which denied consideration of the merits of appellant's accrued benefits claim based on a finding that her claim was filed on the wrong form and was also not received within one year of the Veteran's surviving spouse's death. In sum, the appellant asserts her application for accrued benefits should be deemed timely because she filed a timely initial claim for such benefits in the one-year period following her aunt's death and continuously pursued the claim thereafter, at times in conjunction with her cousin, P.R., the Veteran's and his surviving spouse's son, because the AOJ's initial notice led her to believe this was required, even though she was seeking recovery of funds she paid P.R. to care for her aunt/his mother during her last sickness. The Board agrees with the appellant's assertion on appeal. It is supported by the evidence of record to include statements from P.R., which indicate all communication regarding accrued benefits should be directed to the appellant. The appellant's claim should not be rejected simply because she failed to comply with a claims-processing rule due to an unclear notice sent by the AOJ that failed to properly advise her of the evidence necessary to support her claim as required by 38 U.S.C. § 5121(c). Compliance with this statutory duty would have a reasonable possibility of substantiating the appellant's claim, providing a permissible basis for remand within the AMA framework. 38 C.F.R. § 20.802(a). In the interest of due process, the Board finds the appellant should be deemed a timely accrued benefits claimant based on her initial March 2021 claim and continuous pursuit thereafter, in conjunction with her cousin, P.R., to recover expenses she bore related to the Veteran's surviving spouse's last sickness and burial. The matter is REMANDED for the following action: Adjudicate the merits of the appellant's accrued benefits claim, as timely filed, based on her March 2021 date of claim. If additional evidence is necessary to adjudicate the claim, ensure the appellant receives adequate notice of the requirement of such evidence in accordance with 38 U.S.C. § 5121(c). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.