Citation Nr: 0809855 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-05 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to death pension benefits. 2. Entitlement to service connection for chronic obstructive pulmonary disease, for the purposes of accrued benefits. 3. Entitlement to service connection for congestive heart failure, status post CABG X 4, for the purposes of accrued benefits. 4. Entitlement to service connection for cause of the veteran's death. ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from November 1945 to November 1947. The veteran died in February 2004, and the veteran's widow is the appellant in this matter. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claims for dependency and indemnity compensation (DIC), death pension benefits, and accrued benefits. The issues of service connection for chronic obstructive pulmonary disease, for the purposes of accrued benefits; congestive heart failure, status post CABG X 4, for the purposes of accrued benefits; and service connection for cause of the veteran's death are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The appellant's income exceeds the applicable statutory levels for the annualized periods in which she seeks death pension benefits. CONCLUSION OF LAW The appellant's countable income exceeds the maximum amount set by law for receipt of death pension benefits. 38 U.S.C.A. §§ 1521, 1541 (West 2002); 38 C.F.R. §§ 3.3(a), 3.23, 3.271, 3.272, 3.273 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Decision The appellant contends that death pension benefits are warranted. Pension is a monthly or other periodic payment made by VA to a veteran because of service, age, or nonservice-connected disability, or to a surviving spouse or child of a veteran of a period of war because of the nonservice-connected death of the veteran. 38 U.S.C.A. §§ 1521, 1541. The amount of pension actually received is the difference between the recipient's countable income and the maximum annual rate permitted by VA given the recipient's circumstances. Pension is not payable if the recipient's countable annual income exceeds the maximum limitation given the recipient's circumstances as set forth in the legislation. See generally 38 U.S.C.A. §§ 101, 1501. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting the surviving spouse's annual family countable income from the maximum annual pension rate applicable to the surviving spouse's circumstances. The maximum annual pension rate (MAPR) is adjusted from year to year. Effective December 1, 2003, the MAPR for an otherwise eligible claimant, without dependent child, was $6,634. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Effective December 1, 2004, the MAPR for a surviving spouse with no children was $6,814, and effective December 1, 2005, the MAPR was $7,094. Id. In determining the surviving spouse's annual countable income, payments of any kind from any source shall be counted as income during the twelve-month annualization period in which received, unless specifically excluded. See 38 U.S.C.A. § 501; 38 C.F.R. §§ 3.271, 3.272. Whenever there is a change in the maximum annual pension rate, or in the surviving spouse's family income, the monthly rate of pension payable shall be adjusted effective the date of change. 38 U.S.C.A. § 501; 38 C.F.R. § 3.273. Pension computations of income will include nonrecurring income for a full 12- month annualization period following receipt of the income. Nonrecurring income means income received or anticipated on a one-time basis during the 12-month annualization period (e.g., an inheritance). 38 C.F.R. § 3.271(3)(b). Income from Social Security Administration benefits is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Certain unreimbursed medical expenses (in excess of five percent of the MAPR) may be excluded from countable income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272. The record reveals that the veteran died in February 2004, and the appellant filed for DIC benefits in April 2004. In her application, she reported receiving $527.00 per month from the Social Security Administration, $59.00 per month from Medicare, and $694.20 from the Texas County and District Retirement System (TCDRS). In May 2004, the RO determined that the appellant's claim for death pension benefits was denied because her income exceeded the maximum annual pension rate. The RO explained that her annual earnings of $14,131.00 from social security and $8,330.40 from other sources exceeded the income limit set at $6,634.00 in 2004. Based upon the evidence of record, the appellant's income exceeds the statutory limits for entitlement to death pension benefits at the time she submitted her claim. This conclusion is based on the appellant's reported income contained within her April 2004 DIC application. The appellant's annual income, exceeds the maximum annual death pension rate of $6,634.00, effective December 1, 2003. It is noted that medical expenses in excess of five percent of the maximum income rate allowable, which have been paid, may be excluded from an individual's income for the same 12- month annualization period, to the extent they were paid. See 38 C.F.R. § 3.272(g)(1)(iii). However, the appellant has not reported any additional medical expenses that would reduce her income below the income limit of $6,634. The Board finds that the appellant's income exceeds the maximum annual income for death pension benefits for a surviving spouse. The Board recognizes the veteran's service, and is indeed sympathetic to the appellant's reported financial plight. However, the Board is bound by the laws enacted by Congress, regulations of the Department, the instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. In this case though, the law passed by Congress specifically prohibits the payment of VA death pension benefits to surviving spouses whose income exceeds certain levels, as does the appellant's. The appellant is entitled to resubmit a claim for death pension benefits should her accountable income change. In Sabonis v. Brown, 6 Vet. App. 426 (1994), it was held that where the law and not the evidence is dispositive, the claim should be denied due to the lack of entitlement under the law. Because the appellant's income exceeds the statutory limits, she is not legally entitled to death pension benefits, and the claim is denied. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in their possession that pertains to the claim. The VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA will refrain from providing assistance in obtaining evidence where the claimant is ineligible for the benefits sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility. 38 C.F.R. § 3.159(d). When there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, VCAA does not apply. 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Moreover, this decision results in a denial of death pension benefits and any failure to provide notice as to the effective date and rating is harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As previously stated, in this case, the law is dispositive, and eligibility for death pension benefits is precluded based upon the appellant's annual income which is excessive beyond the mandated law; therefore, eligibility for death pension benefits must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to death pension benefits is denied. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claims of entitlement to service connection for chronic obstructive pulmonary disease, for the purposes of accrued benefits; congestive heart failure, status post CABG X 4, for the purposes of accrued benefits; and service connection for cause of the veteran's death. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Review of the record indicates that prior to the veteran's death, the veteran filed a VA Form 21-526, Veteran's Application for Compensation and/or Pension in April 2003 for a 1977 heart attack, dialysis, and a pacemaker. In a July 2003 rating decision, in pertinent part, the RO denied service connection for chronic obstructive pulmonary disease and congestive heart failure, status post CABG X 4. The veteran died on February [redacted], 2004, and the veteran's wife, submitted a Notice of Disagreement (NOD) regarding the denial of the veteran's service connection claims on February 9, 2004. The RO informed the appellant that the NOD was not valid since the veteran passed away, but she could submit a claim for DIC benefits. As such, the appellant submitted an application for DIC benefits, which also included a claim for accrued benefits, in April 2004. In May 2004, the RO denied entitlement to accrued benefits because there was no pending claim prior to the veteran's death, and VA "didn't owe the veteran any money." An accrued benefits claim is a derivative of the veteran's claim. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Accordingly, an accrued beneficiary is entitled only to as much as the veteran was entitled to at the time of his death. Id. at 1241. When a veteran's claim had not yet become final at the time of his death, the evidence in the file at the time of death may be reviewed to determine whether any benefits were due, and such payments may be paid to an accrued benefits beneficiary. See 38 U.S.C.A. §§ 5101, 5121(a) (2002); 38 C.F.R. § 3.1000(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (holding that if a veteran had a clam pending at death, the accrued beneficiary may be paid any benefits due based on evidence in the file at the date of death). In concluding that there was no pending claim, in essence, the RO determined that the veteran had not initiated an appeal by filing a NOD before he died. Although this is correct, it fails to give import to the fact that the veteran had a full year after the July 2003 notification of the rating decision that denied service connection for chronic obstructive pulmonary disease and congestive heart failure, status post CABG X 4, to submit an NOD. See 38 U.S.C.A. § 7105 (b)(1); 38 C.F.R. § 20.302 (2007); see also Moore v. West, 13 Vet. App. 69, 71-72 (1999) ("[A]n NOD must be filed within one year from the date of mailing of notice of the result of initial review and determination made by the VARO.") Thus, at the time of the veteran's death in February 2004, approximately five months remained of the period in which an NOD otherwise could have been filed. This is important because a "pending claim" is defined by VA regulation as "an application, formal or informal, which has not been finally adjudicated," 38 C.F.R. § 3.160(c)(2007), and this same regulation defines "finally adjudicated claim" as one "which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier." 38 C.F.R. § 3.160(d) Teten v. West, 13 Vet. App. 560, 562 (2000) (finding that a deceased veteran's claim was pending when he died after a Board decision but before the expiration of the 120-day notice of appeal filing period). Because a surviving spouse takes a deceased spouse's claim "as it stands on the date of death," Zevalkink, 102 F.3d at 1242, the appellant filed her DIC claim, including accrued benefits, while the veteran's claim was still pending, i.e., it was not yet a "finally adjudicated claim." Therefore, the Board finds that the veteran's service connection claims for chronic obstructive pulmonary disease and congestive heart failure, status post CABG X 4, are pending claims and must be adjudicated for the purposes of accrued benefits. See Taylor v. Nicholson, 21 Vet. App. 126 (2007). The Board notes that the claim for entitlement to service connection for cause of the veteran's death must be held in abeyance, as it is inextricably intertwined with the claims of service connection for chronic obstructive pulmonary disease and congestive heart failure, status post CABG X 4, both for the purposes of accrued benefits. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, this claim cannot be adjudicated at the present time. Therefore, in order to give the appellant every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a VCAA letter regarding her claims for service connection for accrued benefits purposes and service connection for cause of death. The letter must include an explanation of the information or evidence needed to establish a disability rating and effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Adjudicate the claims of entitlement to service connection for chronic obstructive pulmonary disease and congestive heart failure, status post CABG X 4, for the purposes of accrued benefits. If the claims are denied, the appellant must be separately notified of the denial and advised of her appellate rights. The appellant is reminded that to obtain appellate jurisdiction of issues not currently in appellate status, a timely appeal (an NOD, and after issuance of a Statement of the Case (SOC), a substantive appeal) must be perfected. 3. After adjudicating the claims of service connection for the purposes of accrued benefits, readjudicate the appellant's claim of service connection for cause of the veteran's death, with application of all appropriate laws and regulations and consideration of all information and evidence obtained since the issuance of the September 2006 Supplemental Statement of the Case (SSOC). If the benefits sought on appeal remain denied, the appellant and her representative should be provided a SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs