Citation Nr: 0521521 Decision Date: 08/09/05 Archive Date: 08/19/05 DOCKET NO. 02-02 025A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to the payment of death pension benefits. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The record reflects that the veteran served on active duty from June 1966 to June 1970, and from August 1973 to October 1990. He died in May 1999, and the appellant is his widow. This case is before the Board of Veterans' Appeals (Board) from a May 2001 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which found, in part, that the appellant was not entitled to death pension benefits. This case was previously before the Board in October 2004, at which time the appellant's death pension claim was remanded for additional development. As a preliminary matter, the Board finds that the remand directives have been substantially complied with, and that a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). As an additional matter, it is noted that when this case was previously before the Board in October 2004, the Board also denied her claims of entitlement to service-connected death benefits and accrued benefits. Nothing indicates the appellant appealed these denials to the United States Court of Appeals for Veterans Claims (Court). Therefore, these decisions are final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1100. FINDINGS OF FACT 1. All necessary development and notification has been completed. 2. The appellant and the veteran were married in July 1998. 3. The veteran died in May 1999, less than one year from the date of marriage; no children were born of the marriage or between the veteran and the appellant prior to marriage. 4. The veteran served during the Persian Gulf War. 5. The appellant's annual income exceeds the maximum eligible amount for the payment of VA death pension benefits for the relevant period. CONCLUSION OF LAW The criteria for the payment of death pension benefits are not met. 38 U.S.C.A. §§ 1503, 1541, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.54, 3.159, 3.271, 3.272 (2004); VAOPGCPREC 8-2000; Veterans Benefits Administration Manual M21-1 (M21-1), Appendix B. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that VA has a duty to assist a claimant in developing the facts pertinent to his or her claim, and to notify him or her of the evidence necessary to complete an application for benefits. The Veterans Claims Assistance Act of 2000 (VCAA), which became law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In Quartuccio v. Principi, 16 Vet. App. 183 (2002), the United States Court of Appeals for Veterans Claims (Court) emphasized that adequate notice requires a claimant to be informed of what he or she must show to prevail in a claim, what information and evidence he or she is responsible for, and what evidence VA must secure. Thereafter, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. More recently, the Court held in Mayfield v. Nicholson, 19 Vet. App. 103 (2005) that error regarding the timing of notice does not have the natural effect of producing prejudice and, therefore, prejudice must be pled as to it. Further, the Court held that VA can demonstrated that a notice defect is not prejudicial if it can be demonstrated: (1) that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it; (2) that a reasonable person could be expected to understand from the notice provided what was needed; or (3) that a benefit could not possibly have been awarded as a matter of law. As will be discussed below, the VCAA provisions have been considered and complied with. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. As such, there is no indication that there is any prejudice to the appellant by the order of the events in this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events is not shown to have any effect on the case or to cause injury to the claimant. Consequently, the Board concludes that any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). Here, in a letter dated in December 2004, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by her, what information and evidence will be obtained by VA, and the need for the appellant to advise VA of or submit any further evidence that pertains to the claim. In addition, by correspondence dated in March 2005, as well as a concurrent Supplemental Statement of the Case (SSOC), the RO provided the appellant with notice of the law and governing regulations regarding this case, as well as the reasons for the determinations made with respect to her claim. The March 2005 letter also provided another income form for completion, and advised her that if her income and family medical expenses changed, she should complete and return the enclosed forms. The appellant has since submitted no evidence or argument which refutes the RO's findings, including the determination that her annual income exceeded the maximum rate of pension for the relevant period. The record also reflects that VA has made reasonable efforts to obtain relevant records. Specifically, the information and evidence that have been associated with the claims file consists of the appellant's completed income reports, and verification of her Social Security benefits. Under the circumstances in this case, the appellant has received the notice and assistance contemplated by law and adjudication of the claim poses no risk of prejudice to her. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA does not require remand where VA thoroughly discussed factual determinations leading to conclusion and evidence of record provides plausible basis for factual conclusions, and where development of the evidence was as complete as was necessary for a fair adjudication of the claims, because the VCAA had not changed the benefit-of-the- doubt doctrine); and Bernard v. Brown, 4 Vet. App. 384 (1993). Turning to the merits of the appeal, the record reflects that the appellant and the veteran were married in July 1998, and that he died in May 1999. Moreover, the appellant does not dispute she was not married to the veteran for one year before his death, and that no children were born of the marriage or between the veteran and the appellant prior to marriage. The record reflects that the appellant's claim of death pension was denied, in part, based on VAOPGCPREC 8-2000, which held that death pension based on a period of Vietnam service could only be established for a surviving spouse who married the veteran prior to May 8, 1985, if the marriage was less than a year old when the veteran died, and there were no children born to the veteran and the widow. As they were married in July 1998, it was clearly not prior to May 8, 1985. However, in this case, the veteran served for 90 days during the Persian Gulf War. 38 C.F.R. § 3.2(i). Under 38 U.S.C.A. § 1541(f), in cases where the veteran and widow were not married for at least one year prior to death, and no children were born of their relationship, that a surviving spouse must have been married to a Persian Gulf War veteran prior to January 1, 2001, to be eligible to qualify for death pension, which is a need-based program. See also 38 C.F.R. § 3.54 (a)(3)(viii) (Death pension may be paid to a surviving spouse who was married to the veteran prior to the applicable delimiting dates: Persian Gulf War, January 1, 2001.) Accordingly, the Board remanded this issue in October 2004 for the RO to determine whether the appellant qualified for death pension based on her husband's Persian Gulf wartime service, and other preliminary eligibility criteria, such as income limits. The record reflects that the RO subsequently determined that the appellant did meet the basic eligibility criteria of being a surviving spouse for death pension benefits based upon the veteran's Persian Gulf War service. However, the RO denied her claim finding that her income exceeded the maximum annual pension rate for a surviving spouse with no dependents. The law provides that the Secretary shall pay to the surviving spouse of each veteran who served for ninety (90) days or more during a period of war, or who at the time of death was receiving or entitled to receive compensation or retirement pay for a service-connected disability, pension at the rate prescribed by law and reduced by the surviving spouse's annual income. 38 U.S.C.A. §§ 101(12), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23. Death pension benefits are based on income. Payments of these pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C.A. §§ 1503, 1541(b); 38 C.F.R. §§ 3.3, 3.23. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); 38 C.F.R. § 3.271(a). Social Security benefits are not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. The rates of death pension benefits are published in appendix B of Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. In the instant case, the appellant initiated her claim for death pension benefits by the submission of a VA Form 21-524 (Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child) in April 2001. Accordingly, the rates for the pertinent years are as follows: Effective December 1, 2000, the maximum allowable income for a surviving spouse with no children was $6,237. See M21-1, part I, Appendix B, (change 35). Effective December 1, 2001, the maximum allowable income for a surviving spouse with no children was $6,407. See M21-1, part I, Appendix B, (change 41). Effective December 1, 2002, the maximum allowable income for a surviving spouse with no children was $6,497. See M21-1, part I, Appendix B, (change 46). Effective December 1, 2003, the maximum allowable income for a surviving spouse with no children was $6,634. See M21-1, part I, Appendix B, (change 49). Effective December 1, 2004, the maximum allowable income for a surviving spouse with no children was $6,814. See M21-1, part I, Appendix B. In accord with the Board's remand directives, the appellant completed an Eligibility Verification Report (EVR) in January 2005, at which she indicated that she was employed, but described herself as semi-retired in 2004 and stated she was going to retire in 2005. She indicated that her gross monthly income from Social Security was $9,756; that her annual income from gross wages from all employment for last year was $9,960; and that her annual income from gross wages from all employment for the current year was $5,570.64. Thus, she indicated by this EVR that her annual income exceeded the maximum rate of pension for a surviving spouse with no children. No medical expenses were listed. Evidence was also obtained which reflects that the appellant has been in receipt of Social Security benefits since at least December 2001, and that the annual amount of these benefits - based upon the reported monthly payments - exceed the maximum rate of pension for a surviving spouse with no children. Further, the RO calculated on the March 2005 correspondence that her annual Social Security benefit for the period prior to December 2001 was in excess of $8,000, and the appellant has not presented any evidence to dispute this or any other determination made by the RO regarding her annual income. In short, all of the evidence of record indicates the appellant's annual income has exceeded the maximum rate of pension for the relevant period. The Board acknowledges that the only evidence submitted directly by the appellant regarding her annual income was that of the January 2005 EVR, and she submitted no such information for the period prior to what was covered on this Report. However, as already noted, she was informed of the RO's determination that her annual income exceeded the maximum rate of death pension throughout the pertinent period, and she has since submitted no evidence to refute that determination. Moreover, she did not provide any information regarding her income on the April 2001 VA Form 21-534, even though such information was specifically requested. The Court has held that the duty to assist is not a "one-way street." If a claimant wants help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). For the reasons stated above, the Board finds that the appellant is not entitled to the payment of death pension benefits, and her claim must be denied. ORDER Entitlement to the payment of death pension benefits is denied. ____________________________________________ KATHY A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs