Citation Nr: 1232016 Decision Date: 09/17/12 Archive Date: 09/24/12 DOCKET NO. 10-19 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to nonservice-connected death pension as the surviving spouse of the Veteran. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran retired in June 1974 with over 26 years of active military service. Appellant is the surviving spouse. This matter arises to the Board of Veterans' Appeals (hereinafter: Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that denied death pension, accrued benefits, and dependency and indemnity compensation. Appellant has appealed for nonservice-connected death pension. In February 2012, the Board remanded the case for a hearing. A hearing before a Veteran's law judge was scheduled for August 15, 2012, and the RO properly notified Appellant of that hearing date. Appellant failed to report for the hearing, although the notification letter has not been returned by the United States Postal Service as undeliverable. Appellant has not explained her failure to report nor has she requested rescheduling of the hearing. Therefore, the Board deems the hearing request to be withdrawn. See 38 C.F.R. § 20.702(d) (2011). FINDINGS OF FACT 1. The Veteran died in November 1997. 2. The surviving spouse remarried in 2005. 3. The surviving spouse submitted her claim for death pension in March 2009. 4. The surviving spouse was divorced from her second spouse in January 2010. 5. At no time since March 2009, has Appellant's countable income been less than VA's maximum annual pension rate. CONCLUSION OF LAW The criteria for entitlement to non-service-connected death pension benefits have not been met. 38 U.S.C.A. §§ 1521, 1541 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Appellant was not provided adequate notice prior to the initial adjudication of this claim; however, the U. S. Court of Appeals for Veterans Claims has held that when the law, and not the evidence, is dispositive of the claim, VA's duty to notify and assist is not applicable. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). VA's General Counsel similarly held that there is no duty to notify a claimant where undisputed facts render the claimant ineligible for the claimed benefit and there is no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim. VAOPGCPREC 5-04. The pertinent facts concerning countable income for pension purposes in this case have been fully developed and are not in dispute. Furthermore, there is no unfair prejudice to the claimant due to a lack of notice where, as here, none has been specifically alleged. Id. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Death Pension Entitlement Death pension benefits are available for surviving spouses, as a result of a Veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a). A surviving spouse is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; and, the appellant meets specific income and net worth requirements. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). A surviving spouse of a Veteran who met wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable Maximum Annual Pension Rate (hereinafter: MAPR) by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Non-recurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to such pension exists if, among other things, Appellant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1541(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA's Adjudication Manual M21-1 (hereinafter: M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. Appellant filed a claim for nonservice-connected death pension benefits in March 2009. She reported that she did not have any dependent. The total MAPR for a surviving spouse with no dependents, effective December 2008, was $7,933.00. The MAPR has not increased since December 2008. See 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. Income from Social Security Administration (SSA), including disability payments, is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as income for VA pension purposes. Certain unreimbursed medical expenses may be excluded from countable income for the same 12-month annualization period to the extent they were paid. To be considered, the total expense must be in excess of five percent of the MAPR. 38 C.F.R. § 3.272. Effective December 2008, five percent of the MAPR was $397. As noted above, the MAPR has not increased since December 2008. The Veteran in this case served on active duty from April 1946 to June 1974, which included service during World War II, the Korean Conflict, and the Vietnam era. The Veteran died in November 1997. Because the Veteran served for 90 days or more during a period of war, Appellant must meet the specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). On a VA form 21-534, Application for dependency and indemnity compensation, death pension, and accrued benefits, submitted in June 2009, Appellant reported that she was not in receipt of SSA benefits. She did report, however, that she had remarried after the death of the Veteran and was still married. Her remarriage after the death of the Veteran, in itself, bars entitlement to death pension benefits, as explained below. According to 38 U.S.C.A. § 101 (3) the term "Surviving Spouse" means: A person of the opposite sex whose marriage meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran's death and: a. lived with the Veteran continuously from the date of marriage to the date of the Veteran's death except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse; and b. has not remarried or held themselves out as married to someone else. See U.S.C.A. § 101(3) (West 2002 & Supp. 2011); 38 C.F.R. § 3.50, 3.55 (2011). In this case, because Appellant had remarried after the Veteran's death, and was still in that marriage at the time of filing for death pension, she was not a "surviving spouse" for pension purposes at the time of her March 2009 application for death pension. However, Appellant has reported that her second marriage has more recently ended in divorce, which should then operate to reinstate her status as a surviving spouse. She is correct. Her recent divorce does reinstate her status as a surviving spouse. According to 38 C.F.R. § 3.55 (a) (2) (ii), "Reinstatement of benefits eligibility based on terminated marital relationships," such remarriage does not bar benefits to surviving spouses where, among other circumstances, the marriage has been dissolved by a court with basic authority to render divorce decrees unless VA determines that the divorce was secured through fraud by the surviving spouse or by collusion. Appellant submitted a divorce decree issued on January 7, 2010, granting her an absolute divorce by a state court in Arkansas. While this decree serves to reinstate her status as a surviving spouse, it does not necessarily result in the payment of death pension benefits. Excess income could still disqualify her for pension. In April 2011, Appellant reported that her SSA claim has been approved and that she receives $1,257 per month, minus a Medicare premium. In May 2011, on a VA Form 21-0518-1, Improved Pension Eligibility Verification Report, she reported that this SSA disability benefit was retroactively paid back to October 2008, the date that she had become disabled from working. In an undated notice letter, VA's pension management center in Milwaukee, Wisconsin, notified Appellant that her annual SSA benefit was $15,076.00. Her 5 percent VA deductible amount was $396.00, and her annual allowed medical expense was $1,384.00. Thus, her net annual income countable for VA pension was $14,088. Appellant did not disagree with those amounts. Because this amount exceeds the maximum income limit set forth at 38 U.S.C.A. § 1541, entitlement to death pension is not established. As set forth above, a surviving spouse without dependents cannot receive death pension benefits if her/his income exceeds the specified annual level. Because Appellant's income (even with the subtraction of medical expenses) exceeds the statutory limit in each of the years from 2009 to the present, she is not entitled to VA non-service-connected death pension benefits. 38 C.F.R. §§ 3.271, 3.272, 3.273 (2011). In her notice of disagreement, Appellant argued that there was an eight-year period between the death of her first husband (in November 1997) and her remarriage (in May 2005) and that she should have received death pension for those in-between years. While she has not reported her income during those years, it is noted that she apparently earned an income during those years because she reported to SSA that she became disabled from working in October 2008. While her income during those years is unclear, it is clear that she did not file her first death pension claim until March 2009. As explained below, because of this filing date and because of the laws that establish effective dates for payment of benefits, she is barred by law from obtaining a retroactive payment, even if eligibility is otherwise established. According to 38 U.S.C.A. § 5110 (a) (West 2002), the effective date of an award based on a claim for pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Because Appellant did not submit her claim until March 2009, payment of pension, even if otherwise established, could not be made retroactive to a date earlier than March 2009, the date that VA received her informal application. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for nonservice-connected death pension for the surviving spouse is therefore denied. ORDER Entitlement to nonservice-connected death pension is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs