Citation Nr: 0005776 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97-20 084A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to accrued benefits under the provisions of 38 U.S.C.A. § 5121(a)(5) (West 1991 & Supp. 1999). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran served on active duty from November 1945 to November 1946 and from August 1948 to November 1954, including service in World War II and in the Korean War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the appellant's claim for "accrued benefits" of the veteran. The appellant, D. T., is the son of the veteran. The appellant's claim was initially before the Board in December 1998, at which time it was remanded for additional development. FINDINGS OF FACT 1. The veteran died on January [redacted], 1997. 2. On January 28, 1997, VA sent a check to the veteran in the amount of $15,998.00. 3. The appellant son returned the check to the RO in February 1997. 4. The appellant did not submit receipts of expenses for the veteran's last sickness. 5. The appellant and his siblings described expenses incurred in caring for their father, including expenses for travel, meal money, as well as expenses in helping to cook and clean for the veteran. CONCLUSION OF LAW The appellant does not have basic entitlement to receive accrued benefits. 38 U.S.C.A. §§ 5121 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.1000; 3.357 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background By rating decision dated January 10, 1997, the RO granted the veteran an increased rating for prostatitis from 0 to 30 percent effective April 29, 1996; granted the veteran an increased rating for rheumatoid arthritis from 10 percent to 100 percent effective May 17, 1996; and granted the veteran entitlement to special monthly compensation based on rheumatoid arthritis effective May 17, 1996. His combined rating was increased to 40 percent effective April 29, 1996, and increased to 100 percent with entitlement to special monthly compensation based on the need for aid and attendance effective May 17, 1996. The veteran's death certificate shows that he died on January [redacted], 1997, due to metastatic transitional cell renal carcinoma. The RO sent the veteran a letter notifying him of the rating decision on January 23, 1997. The claims folder includes a routing and transmittal slip, or "Optional Form 41," dated February 25, 1997, on which it is noted that the veteran's check #[redacted] in the amount of $15,998.00, dated January 28, 1997, was returned to VA on February 25, 1997. In February 1997, the appellant submitted an application for burial benefits, showing total funeral, burial, and transportation costs of $5,395.48. A copy of the bill from a private funeral home was submitted. In February 1997, the appellant submitted a document entitled "Application for Amounts Due Estates of Persons Entitled to Benefits." 4 sons (L.T., E. T., D. T., M. T.) and 3 daughters (L. D., D. D., B. W.) were listed as relatives surviving decedent who may be entitled to share in the estate. The age of one child was 23, while the ages of the remaining children were all over 23. On the back of the form, instruction 4 states that each bill covering expenses of the last sickness and burial should be submitted on the regular billhead of the creditor, and if paid, must be receipted to show by whom payment was made. In March 1997, the RO authorized $450 to the private funeral home in question for a burial and interment allowance. In the appellant's April 1997 notice of disagreement, it was noted that a check in the amount of $15,998.00 was returned to the VA. He stated that while there were no outstanding debts with his estate, that those benefits should have come to his estate as other expenses were incurred by his children. In July 1997, statements were received from the veteran's 7 children. D. T. stated that he served as power of attorney for his father while he was sick from August 1996 to the date that he died on January [redacted], 1997, and that then he became administrator of the estate. He stated that his time should have been worth minimum wage for the trips to pay bills and take care of all the financial business, making several trips to the hospital to take care of all necessary paper work, taking care of outside work every week, getting wood to heat the house with, and feeding all the animals and taking care of farm work also. M. T. stated that he incurred costs of $900 while his father was at the VA hospital from December 22 through January 15, including staying at the VA hospital during 10 "8 hour shifts", as well as gas mileage and meals. B. W. stated that she had total costs of $6,210.00 including costs for caring her father in his home after March 1996, travel expenses, and time spent with him while he was in several hospitals and after he returned from a VA hospital. L. T. stated that he had costs of $33,600.00 for staying with his father 24 hours a day from the time that he became ill in March 1996 until January 1997 when he died, excluding the times that he was in the hospital. He noted that he had to give him all of his medicines, see that he had proper meals, and help him go to the bathroom and bathe. L. D. stated that she had costs of $2,750.00 from expenses for coming to the veteran's home to cook and clean and do laundry twice weekly from March 1996 to January 1997, along with staying at the VA hospital from December 22 through January 15, and gas mileage. D. D. stated that she had total costs of $3,150.00 from expenses coming to the veteran's home to cook and clean and do laundry twice weekly from March 1996 to January 1997, along with staying at the VA hospital from December 22 through January 15, gas mileage, and getting a babysitter for her daughter. E. T. stated that he had expenses of $6,250.00 from taking his father to the VA hospital and other appointments, meal money, gas mileage for getting medicines and groceries, staying at the VA hospital from expenses coming to his home to cook and clean and do laundry twice weekly from March 1996 to January 1997, along with staying at the VA hospital from December 22 through January 15, gas mileage, and staying at his father's home 24 hours a day to help with care. In the appellant's July 1997 substantive appeal, it was asserted that a check was received in the amount of $15,998.00 after the veteran's death which was returned to the VA. He noted that the VA had not paid these funds to the estate as there were no outstanding debts and the burial benefit had been paid by the estate, and not the children. He wrote that expenses were incurred, although his father was not charged. He felt that these funds were due to the veteran's estate, and since all of the children would participate in the division of them, that they were lawfully entitled to them. In the RO's May 1999 Supplemental Statement of the Case, they wrote that the statements from the various persons appear to show their estimates of the value of their services for the veteran, and were not expenses for which reimbursement could be considered. They wrote that for reimbursement to be considered, the claimants would have to submit receipts showing the amounts paid for the veteran's last illness and burial, to whom the payments were made and the dates of payment. They wrote that if the claimants would submit this information that they the claim would be reconsidered. In the February 2000 informal hearing presentation, it was asserted that the RO had denied the veteran's claim under 3.1000 (a) (4) providing for reimbursement to the people who bore the expenses for the veteran's last illness and burial. It was noted that the claim was denied because the claimants did not have receipts to show actual service to the veteran, but rather statements of the estimated value of their services to the veteran. It was requested that the veteran's children be given the opportunity to provide documentation to support their statements. It was noted that the RO granted the veteran special monthly compensation for aid and attendance effective from May 17, 1996, and that the veteran's children stated that they provided total care for their father. Analysis The law provides that accrued benefits (periodic monetary benefits from the years preceding the veteran's death which are due and unpaid at the time of death) shall be distributed in an order of precedence. Upon the veteran's death, such benefits are paid to the first living person listed: 1) the veteran's spouse; 2) his children in equal shares; 3) his dependent parents; 4) the person who bore the expense of his last sickness and burial (to the extent of expenditure for same). "Child" for this purpose means a child under 18, a child who became permanently incapable of self-support prior to age 18, and an unmarried child between the ages of 18 and 23 who is attending school. Among requirements for accrued benefits are that a claim must be filed within the year after the veteran's death, and payment is limited to benefits which accrued within two years before death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. After the veteran's death, the RO wrote the veteran a check in the amount of $15, 998.00, which was returned by the veteran's son, D. T. The amount represented by the check becomes subject to distribution under the order-of-precedence distribution rules for accrued benefits, pursuant to 38 U.S.C.A. § 5121 and 38 C.F.R. § 3.1000. The appellant D. T. is not a proper recipient under the accrued benefits distribution rules. He is the son of the veteran, but not a "child" as defined for accrued benefits purposes, and, as will be explained in detail below, he and his siblings did not bear the expenses for the veteran's "last sickness." There are no other proper recipients under the accrued benefits distribution rules as the veteran did not appear to be married at his death, and there were no dependent parents of the veteran's at his death. The appellant is not claiming that there were any burial expenses other than those which were already paid by the RO. The appellant's specific claim is that he and his siblings claim that they incurred expenses in caring for their father in his last sickness. However, the expenses that the appellant and his siblings claim were spent for the veteran's last sickness are not appropriate expenses for which they can be reimbursed. As the United States Court of Veterans Appeals (Court) held in Caranto v. Brown, 4 Vet. App. 516, 518 (1993), the plain language of section 5121 (a) (5) excludes reimbursement from accrued benefits for non-medical expenses. The Court further held that it was not arbitrary or capricious for the VA to require appellant to submit receipts regarding expenses incurred by her for her mother's care to substantiate payment prior to granting an application for accrued benefits. Id. at 519. In this instance, the RO informed the appellant D. T. of the need to submit bills covering expenses of the veteran's last sickness on more than one occasion, but D. T. did not submit such receipts. Instead, he and his siblings submitted statements that they incurred specific costs for staying with the veteran while he was sick both at the hospital and at his home. They also stated that they helped their father take care of himself, including helping him take his medicine. However, they did not submit specific receipts, and pursuant to Caranto, the VA can require the appellant to submit receipts regarding expenses incurred for care. The appellant and his siblings also claimed that they had various travel and meal money expenses, as well as other expenses in helping to cook and clean for the veteran. However, these expenses are not medical expenses, and pursuant to Caranto, the plain language of section 5121 (a) (5) excludes reimbursement from accrued benefits for non- medical expenses. It is noted that 38 U.S.C.A. § 5122 regarding checks mailed to a deceased payees does not apply in the veteran's case since the check in question of $15,998.00 was mailed to him after he died. In summary, the appellant is not entitled to accrued benefits for bearing expenses from the veteran's last sickness. Accordingly, his claim must be denied. ORDER Entitlement to accrued benefits is denied. G. H. SHUFELT Member, Board of Veterans' Appeals