Veteranclaims’s Blog

January 19, 2022

Single Judge Application; accrued benefits; Accrued benefits are periodic monetary benefits to which a person was entitled but were unpaid at the time of the veteran’s death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a); However, by statute and VA regulation, if there are no eligible survivors, accrued benefits may be paid to reimburse the person who bore the expense of the veteran’s last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). “Bore the expense” can mean “paid the expense,” but “‘bore’ is not limited to ‘paid'”—it includes otherwise having assumed, accepted, supported, or sustained the financial burden, such as by providing funds to the person who actually paid. Helmick v. McDonough, 34 Vet.App. 141, 148-49 (2021). “Congress’s clear intent was to make whole the one who—one way or another—was saddled with the financial burden of a beneficiary’s last sickness and burial.;

Filed under: Uncategorized — veteranclaims @ 10:17 pm

Designated for electronic publication only
No. 19-5476
Before JAQUITH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: Even a person who isn’t the surviving spouse, child, or dependent parent of a deceased veteran may recover a portion of that veteran’s accrued benefits by showing that they bore the expense of the veteran’s last sickness or burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5) (2021). Belinda G. Williams sought reimbursement in the amount of $311,600 for the care she provided Air Force veteran Robert S. Barnett until his death in 2007.1 Record (R.) at 749-750,733. In an August 1, 2018, decision, the Board of Veterans’ Appeals (Board) determined that she was correctly paid $29,656. R. at 5-14. But it failed to explain how VA calculated the $29,656 figure. Without this information, we are unable to effectively review whether the Board properly adjudicated her claim. Thus, we must remand.
The veteran served from April 1952 to July 1956. R. at 1953. The veteran was service connected for rheumatic fever/heart disease residuals since he separated from service. R. at 1903-1904, 1908-1909, 1889-1890, 1579. Ms. Williams started taking care of the veteran in April 2002
1 She does not assert that she is a surviving spouse, child, or dependent parent, nor does she assert that she bore Mr. Barnett’s funeral expenses. Additionally, at an earlier point in proceedings, Ms. Williams had valued her services at $133,865. R. at 1177.
following his release from a VA hospital. R. at 34, 749. There was no financial agreement between the two of them—he had simply asked her to help him, and she obliged. R. at 33-34, 38-39.
On October 28, 2002, the veteran asked for an increase in his heart disease rating and mentioned that he was admitted to the hospital the day before. R. at 1529. On May 6, 2003, the veteran was examined for housebound status/permanent need for regular aid and attendance. R. at 1493-94. The same day, he submitted this examination along with a statement that appears to ask for additional help because he was housebound and required an assistant. R. at 1491.
On May 8, 2003, VA increased the veteran’s rating for his service-connected rheumatic heart disease to 100%, effective May 2001, and denied entitlement to special monthly compensation (SMC) for aid and attendance. R. at 1496-1501. In February 2004, VA issued another rating decision, dated December 24, 2003, continuing denial of Veteran’s claim for SMC because it wasn’t his service-connected condition that necessitated the skilled care, but his other non-service-connected conditions. R. at 1472-1480. A series of revolving appeals and denials ensued for 3 years, which included more evidence submitted by the appellant showing that she took care of the veteran. R. at 1469, 1450-1465, 1446-1447, 1438-1442, 1407-1412, 1414-1415, 1405-1406, 1358-1360, 1353-1354, 1341, 1575-1576, 1301-1314, 1404, 1297-1298, 1290. The veteran died on March 3, 2007, from abdominal sepsis and ischemia of the bowels. R. at 1265, 1228.
On October 17, 2007, the appellant filed a VA Form 21-601, Application for Accrued Amounts Due a Deceased Beneficiary. R. at 1176-1179. She asked for $133,865 for “caregiver” expenses from April 2002 until his death on March 3, 2007. R. at 1177. On July 21, 2008, VA sent a letter to Ms. Williams, requesting evidence to support the $133,865 figure she’d claimed. R. at 1159. It noted that VA could only reimburse her for bearing the costs of the veteran’s last sickness and burial and gave examples of what types of expenses would fall under that category. R. at 1159. She was denied SMC on an accrued basis in December 2008 because the veteran’s need for skilled nursing care wasn’t because of his service-connected condition. R. at 1130.
Another series of appeals and denials continued until September 2011, when the Board determined that the veteran was entitled to SMC, reasoning that the evidence was in equipoise to show the veteran was housebound and required aid and attendance because of his service-connected rheumatic heart condition. R. at 851. The Board also noted that the veteran’s daughter
had filed a claim for burial expenses, which was granted in June 2007. R. at 852.2 The Board remanded the claim to the regional office (RO) to determine whether the appellant was entitled to accrued SMC benefits, and if so, how much she was to be awarded as an accrued beneficiary. Id. In August 2013, Ms. Williams submitted a breakdown of the services she provided the veteran, this time totaling $311,600. R. at 749-750.
In November 2013, the RO implemented the Board’s decision that the deceased veteran was entitled to SMC “based on aid and attendance criteria being met,” and the RO awarded an effective date of October 28, 2002. R. at 741. The rating decision detailed the following under the heading for SMC: “L-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (l) and 38 CFR 3.350(b) on account of being so helpless as to be in need of regular aid and attendance while not hospitalized at U.S. government expense from 10/28/2002.” R. at 739. The RO also deferred a decision on entitlement to compensation for cardiomyopathy. R. at 741.
A January 2014 letter let Ms. Williams know of the November 2013 decision, and also alerted her of the $29,656 awarded to her “as the deceased veteran’s former caregiver.” R. at 733.
She appealed via a July 2014 Notice of Disagreement, stating that the $29,656 figure was too little, asking for a breakdown of the payment, and alleging that VA hadn’t sent certain information it was supposed to get to her. R. at 664-65.
In a December 2014 deferred rating decision, a decision review officer (DRO) indicated that he wasn’t sure why the cardiomyopathy issue was deferred in November 2013 because the veteran couldn’t have been entitled to a cardiomyopathy rating without creating pyramiding issues with his 100% rheumatic heart disease rating. R. at 565, see R. at 741 (November 2013 rating decision). The DRO determined that the only issue that should have been developed for evidence was whether
the claimant has standing for accrued purposes (i[.]e.[,] that she paid the last expenses for the vet[eran]). Coincidentally she was paid [$] 29,000 in accrued benefits and has filed a NOD with this amount. I don’t know how this amount was arrived at as there are no calculations anywhere in the file.
R. at 565.
A July 24, 2015, Statement of the Case (SOC) stated that the $29,656 amount Ms. Williams was paid “for accrued benefit purposes only” was correct. R. at 460. The SOC also listed the
2 The appellant does not appear to dispute that the veteran’s daughter paid for funeral expenses.
following breakdown of amounts but failed to provide information as to how the amounts were calculated:
October 28, 2002 to November 30, 2002
December 1, 2002 to November 30, 2003
December 1, 2003 to November 30, 2004
December 1, 2004 to November 30, 2005
December 1, 2005 to November 30, 2006
December 1, 2006 to March 3, 2007
R. at 460.3 In a September 2015 VA Form 9, the appellant argued that VA repeatedly overlooked evidence in its possession. R. at 263-275. She also said she didn’t receive the July 2015 SOC. R. at 264, 275. VA re-sent the SOC in October 2015. R. at 212-236.
In August 2018, the Board issued the decision now on appeal. It explained that because the appellant was not a relative, surviving spouse, or child of the veteran, she could “recover only so much of the accrued benefits, if any, as may be necessary to reimburse her for expenses she personally incurred in connection with the Veteran’s last sickness.” R. at 6 (citing 38 U.S.C. § 5121 (a)(6) and 38 C.F.R. § 3.1000 (a)(5)). It stated that because a claim for accrued benefits is derivative of a claim made by a veteran during his life, any expenses Ms. Williams incurred in connection with the veteran’s last sickness can’t exceed the amount of accrued benefits. R. at 7 (citing Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996)). It also explained that October 2002 was the earliest effective date legally possible because that’s when the veteran filed for SMC. R. at 8.
The Board further found that the November 2013 decision correctly granted the appellant accrued benefits based on the veteran’s need for aid and attendance under 38 U.S.C. § 1114(l) (“L-1 rate”). R. at 9, 13-14. It discussed 38 U.S.C. § 1114(m)-(p), as well as (r)(1) and (r)(2), and reasoned that the veteran didn’t meet the criteria for SMC compensation under those subsections. R. at 9-14. Specifically, regarding subsection (r)(2), it found “that the appellant has not asserted
3 An undated handwritten note is of record; it reads, in its entirety: “11-1-02 → 528[;] 12-1-02 → 6420[;] 12-1-03 → 6552[;] 12-1-04 → 6732[;] 12-1-05 → 7008[;] 12-1-06 → 2416[;] 29,656[.]” R. at 738. The numbers correspond to the dollar amounts listed in the July 2015 SOC and the total corresponds to the $29,656 specified in the January 2014 award letter, R. at 733, but the origin of the handwritten note is uncertain and the note fails to explain the significance of any number or date written on it.
that she is a licensed health-care professional, that she followed a regimen of personal health-care services prescribed by a health-care professional, or that she consulted with a health-care professional at least once each month to monitor a prescribed regimen,” as is required by that regulation. R. at 13-14 (citing 38 C.F.R. § 3.352 (b)(2)-(3)).
Ms. Williams now argues, among other things, that the Board erred in determining that she was awarded the correct amount of accrued benefits.4 See generally Appellant’s Informal Brief. She expresses frustration with the entire claims process and chronicles her efforts to assist Mr. Barnett and then fight for her own rights since 2002. Id.5 The Court sympathizes with the appellant’s frustration: the record reveals precious little about the basis for which the $29,656 figure was awarded. Nobody has explained how this amount was calculated despite repeated requests from the appellant for such information.6
Accrued benefits are periodic monetary benefits to which a person was entitled but were unpaid at the time of the veteran’s death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). When a veteran dies, “the only persons entitled to accrued benefits . . . are, in the following order, the veteran’s surviving spouse or the veteran’s children or the veteran’s dependent parents.” Morris v. Shinseki, 26 Vet.App. 494, 499 (2014). “No other categories of payee at death are provided in the statute.” Youngman v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012). However, by statute and VA regulation, if there are no eligible survivors, accrued benefits may be paid to reimburse the person who bore the expense of the veteran’s last sickness and burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). “Bore the expense” can mean “paid the expense,” but “‘bore’ is not limited to ‘paid'”—it includes otherwise having assumed, accepted, supported, or sustained the financial burden, such as by providing funds to the person who actually paid. Helmick v. McDonough, 34 Vet.App. 141, 148-49 (2021). “Congress’s clear intent was to make whole the one who—one way
4 A self-represented appellant’s informal brief is entitled to a liberal interpretation by this Court. See De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992).
5 “Id.” means “[t]he same” and “is used in a legal citation to refer to the authority cited immediately before.” BLACK’S LAW DICTIONARY 893 (11th ed. 2019).
6 To make matters worse, even the DRO was baffled as to where the $29,656 figure came from. See R. at 565. The veterans law judge conducting the appellant’s April 2018 Board hearing also stated that he “need[ed] to figure out where that number came from and . . . how they arrived there and whether that is the correct amount.” R. at 40.
or another—was saddled with the financial burden of a beneficiary’s last sickness and burial. And the plain meaning of ‘bore the expense’ includes whatever circumstances created that financial burden.” Id. at 149.
Here, the Board determined that Ms. Williams was only owed reimbursement for bearing the expenses of the veteran’s last sickness. R. at 6. It also decided that the veteran was properly awarded SMC under the “L-1” rate for aid and attendance. R. at 13-14. But it is wholly unclear why the appellant was only paid $29,656 or where that figure came from. The Board doesn’t explain it, nor can we surmise it. It appears that evaluation under the L-1 rate from October 2002 to March 2007 would put the value of accrued benefits at roughly $158,000—not $29,656.7 And because the appellant submitted evidence that her expenses exceeded this amount, it is unclear why he award was limited to $29,656.
To clarify, the Court makes no factual finding as to the amount Ms. Williams is owed, or even if the L-1 rate was proper. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”). To the contrary, the crux of the Court’s frustration is that we can’t effectively review whether Ms. Williams was properly compensated without knowing how her award was calculated. It could have been the case that the veteran only had $29,656 in accrued benefits to be awarded. That figure could have been awarded because VA determined that the only valid expenses the appellant bore for his last illness totaled $29,656. It could have even been an award for equitable relief. The Court cannot be left to guess at the basis for the Board’s determination, so we must remand for the Board to state adequate reasons or bases for its determination that additional payment is not warranted and denial of the appellant’s contrary claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (holding that the Board must “articulate with reasonable clarity its ‘reasons or bases’ for decisions, and in order to facilitate effective judicial review”); Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board has . . . failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy.”); see generally SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 196-97 (1947) (“It will not do for a court to be
7 The Board doesn’t explain what the L-1 rate is or how it was calculated in this case. However, using the SMC tables on VA’s website for each year from October 2002 to March 2007, to calculate the “SMC-L” rate for a veteran, alone, without children, comes out to roughly $158,000. See Special Monthly Compensation (SMC) Rate Table—Effective 12/1/02, U.S. DEP’T OF VETERANS AFFS.,
resources_comp0202.asp (scroll down to “Historic Rate Tables”; then click on the year) (last updated Mar. 11, 2014).
compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.”)
Any of the appellant’s arguments that may remain need not be addressed, as they would offer no greater remedy than remand. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”). And the appellant may submit any additional argument and evidence. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). Any such argument or evidence must be expeditiously considered by the Board. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
For the foregoing reasons, the Board’s August 1, 2018, decision is VACATED and REMANDED for consideration in accordance with this decision.
DATED: October 29, 2021
Copies to:
Belinda G. Williams
VA General Counsel (027)

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