Citation Nr: 18131253
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-12 348
DATE:	August 31, 2018
Entitlement to accrued benefits in excess of $11,613.43 is denied.
1. The appellant has not established that she is a "child" for accrued benefits purposes.
2.  The appellant has not established that she paid any other expenses related to the Veteran or his surviving spouse’s funeral or last sickness that have not been reimbursed.
The criteria for entitlement to accrued benefits in excess of $11,613.43 have not been met. 38 U.S.C. §§ 5112, 5121 (2012); 38 C.F.R. §§ 3.500, 3.1000 (2017).
The Veteran served on active duty from November 1943 to May 1946.  He died in March 2013.  He was survived by his spouse, who died in June 2013.  The appellant in this matter is the daughter of the Veteran and his spouse.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in Philadelphia, Pennsylvania, which denied the appellant’s entitlement to accrued benefits.  
In March 2018, the appellant testified during a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

Entitlement to Accrued Benefits in Excess of $11,613.43
The appellant argues that monetary benefits were due, but unpaid, to the Veteran at his death and that, as his daughter, executor of the estate, and/or as the person who paid certain medical expenses, she is entitled to those accrued benefits.
Accrued benefits are those benefits that were due and unpaid to a claimant who was entitled at the time of death under an existing rating or based on evidence in the file on the date of death. 38 U.S.C. § 5121(a) (2012); 38 C.F.R. § 3.1000(a) (2017).  An eligible recipient may be paid periodic monetary benefits to which a claimant was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when the claimant died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998).  Applications for accrued benefits must be filed within one year after the date of death.  38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c).
Pursuant to 38 U.S.C. § 5121(a), periodic monetary benefits which are due and unpaid, will, upon the death of the individual entitled to those benefits, be paid as follows: 
(1) Upon the death of a person receiving an apportioned share of benefits payable to a veteran, all or any part of such benefits to the veteran or to any other dependent or dependents of the veteran, as may be determined by the Secretary.
 (2) Upon the death of a veteran, to the living person first listed below:
 	(A) The veteran’s spouse.
 	(B) The veteran’s children (in equal shares)
 (C) The veteran’s dependent parents (in equal shares).
(3) Upon the death of a surviving spouse or remarried surviving spouse, to the children of the deceased veteran.
(4) Upon the death of a child, to the surviving children of the veteran who are entitled to death compensation, dependency and indemnity compensation, or death pension.
(5) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents.
(6) 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); see also 38 C.F.R. § 3.1000.
By way of history, the Veteran filed a claim for nonservice-connected pension and special monthly pension based upon the need for aid and attendance in March 2011.  In September 2012, the RO issued a rating decision granting entitlement to nonservice-connected pension and special monthly pension, effective March 2, 2011.  A finding of incompetency was proposed at that time based upon his diagnosis of dementia.
In an October 2012 letter accompanying the rating decision, the RO informed the Veteran that his first payment would be effective October 1, 2012, and that his retroactive benefits from March 2011 until that date were being withheld while VA determined if he needed assistance with his benefits.  In another letter dated in October 2012, the RO noted that a finding of incompentency had been proposed and that as a result, he might be appointed a fiduciary to manage his benefits.
In November 2012, the appellant responded to these letters indicating that she was the Veteran’s power of attorney and would be his fiduciary to handle his benefits.
In a January 2013 rating decision, the RO found the Veteran not competent to handle disbursement of funds.
A February 2013 request for appointment of fiduciary reflects that the Veteran was entitled to $35,782.00 in retroactive benefits and that the appellant was his fiduciary.
In March 2013, VA received notification of the Veteran’s death, prior to the disbursement of the retroactive benefit lump sum payment.
In April 2013, the Veteran’s surviving spouse filed a claim for nonservice-connected death pension benefits and aid and attendance benefits.  However, she passed away in June 2013, prior to the adjudication of her claim.
In August 2013, the appellant filed a VA Form 21-601, Application for Accrued Amounts Due a Deceased Beneficiary for the benefits due to the Veteran and his deceased spouse.
With respect to the appellant’s eligibility to received accrued benefits, in enacting section 5121, Congress limited eligibility for accrued benefits due and unpaid to the same few categories of dependent family members for whom a veteran could seek additional disability compensation while alive. See 38 U.S.C. §§ 1115, 1135; see also 38 U.S.C. §§ 101(4) (defining “child”), 102 (relating to “dependent parent”); 38 C.F.R. § 3.1000 (d)(2) (defining “child”).  As relevant here, where the claim relates to the death of a surviving spouse, the only persons entitled to accrued benefits due and unpaid under the statute are the veteran’s children. 38 U.S.C. § 5121(a)(3).  If no eligible listed survivor is alive at the time of the veteran’s death, then accrued benefits due and unpaid may be paid to any person “who bore the expense of last sickness and burial,” but “only so much of the accrued benefits [may be paid] . . . as may be necessary to reimburse the person.” 38 U.S.C. § 5121 (a)(6); Youngman v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012) (“No other categories of payee at death are provided in the statute.”).
For accrued benefits purposes, “child” has a very specific meaning. The term is expressly defined in 38 C.F.R. § 1000(d)(2) as including only a child of a veteran who is unmarried and (1) under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3) under the age of 23 and pursuing a course of instruction at an approved educational institution.  See also 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a); Caranto v. Brown, 4 Vet. App. 516, 518 (1993) (remanding the matter for the Board to determine whether veteran’s daughter qualified as a “child” for accrued-benefits purposes). (Other provisions, not applicable here, pertain to adopted children and stepchildren, but all carry the same age requirements.)  Thus, the statutory definition of “child” excludes anyone over age 23 unless they “became permanently incapable of self-support” before attaining age 18.
The Board finds that there is no evidence of record establishing that the appellant is a child as defined by regulation as the term pertains to eligibility for accrued benefits, and as such, she is not entitled to accrued benefits.  The appellant reported that she was born in 1953 and thus she was older than 23 years at the time of her parents’ death.  By regulation, an adult child over the age of 23 years at the time of the death is entitled to accrued benefits only when that child is unmarried, living as a member of the veteran’s household at the time of the veteran’s death, and had become permanently incapable of self-support prior to attaining 18 years of age. See 38 C.F.R. §§ 3.57, 3.1000(d)(2).  The appellant has not established that she meets the regulatory definition of a child as it pertains to eligibility for accrued benefits.
To the extent that the appellant was her father’s fiduciary, applicable law does not include fiduciaries, estates, or executors of estates among the persons eligible to receive accrued benefits. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit have repeatedly affirmed that accrued-benefits claims by persons other than those listed in section 5121(a) are not viable as a matter of law.  See, e.g., Morris v. Shinseki, 26 Vet. App. 494, 499-500 (2014) (holding, in the context of accrued benefits, that the Veteran’s brother and fiduciary was not an eligible claimant); Youngman, 699 F.3d at 1303-04 (denying accrued benefits to a deceased veteran’s fiduciary for distribution to the veteran’s heirs); Pelea v. Nicholson, 497 F.3d 1290, 1291-92   (Fed. Cir. 2007) (denying accrued benefits to deceased claimant’s estate); Richard v. West, 161 F.3d 719, 721-23 (Fed. Cir. 1998) (denying accrued benefits to a deceased veteran’s brother); Wilkes v. Principi, 16 Vet. App. 237, 242 (2002) (denying accrued benefits to a deceased veteran’s nephew); Caranto, 4 Vet. App. at 518 (holding it was necessary to determine whether a veteran’s daughter was a “child” for purposes of accrued benefits as she was otherwise ineligible to pursue an accrued benefits claim).
The law is well-settled. The appellant is not an eligible claimant as a “child,” as an heir, or in her capacity as fiduciary.
The appellant could be eligible to receive reimbursement for the expenses of the last sickness and burial that she paid related to the Veteran and his surviving spouse.  See 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5).  The record reflects that the appellant has submitted statements and copies of checks of various expenses related to these costs, and she has been reimbursed $11,613.43 for those expenses.  The record does not reflect—nor does the appellant contend—that there are any other expenses for which she may be eligible for reimbursement.
Rather, the appellant’s main contention is that she is entitled to the over $35,000 lump sum retroactive benefits due the Veteran prior to his death.  During her hearing and in written statements, she emphasized the amount of time it took for the Veteran’s claim to be adjudicated, and then it took even more time after benefits were granted to appoint her as fiduciary so that the lump sum payment could be released.
The Board indeed recognizes the appellant’s argument related to the amount of time it took to process the Veteran claim and appoint a fiduciary, and that if this process had been more timely, the retroactive payment would have been disbursed prior to the Veteran’s death. The Board sympathizes with this argument, and while the Board understands the appellant’s frustration, the Board is bound by the law and is without authority to grant benefits.  See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). 
(Continued on the next page)
Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. E. Wilkerson, Counsel 

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