Citation Nr: 1304892	
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  10-23 037	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to death pension benefits on behalf of the Veteran's surviving children.  


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel









INTRODUCTION

The Veteran had active service from May 1968 to December 1968.  The Veteran passed away in September 2002.  The appellant is the custodian of the Veteran's children.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  


FINDING OF FACT

The appellant's income that has been reported exceeds the limit set by law.  


CONCLUSION OF LAW

The criteria for death benefits for the Veteran's surviving children have not been met.  38 U.S.C.A. § 1542 (West 2002); 38 C.F.R. §§ 3.24, 3.271 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veteran's Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error.  Sanders v. Nicholson, 487 F.3d 881 (2007).  VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law.  Id.  However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2).  Shinseki v. Sanders, 556 U.S. 396 (2009).  In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice.  Id.

Letters provided with the September 2009 decision and the March 2010 statement of the case notified the appellant of what information and evidence was needed to substantiate a claim for death pension.  While this evidence was not provided to the appellant prior to the initial adjudication of her claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).  

Next, VA has a duty to assist the appellant in the development of the claim.  This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The record contains the Veteran's service treatment records and death certificate.  Financial information from the appellant has also been incorporated into the record for 2009.  She was notified of the need to submit additional verification that the income of the children did not exceed the maximum amount, but to date, VA has received no new evidence pertaining to earnings.  The appellant was also scheduled for a hearing, but she did not show up for the scheduled hearing.  The duty to assist is not a one-way street.  If a claimant wishes help in developing a claim, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Analysis

Death pension benefits are generally available for surviving children of a veteran, as a result of the Veteran's nonservice-connected death.  38 U.S.C.A. § 1542 (West 2002).  An appellant is entitled to such benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if the veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, the surviving child's income or the income of the surviving child and any person with whom the child is residing who is legally responsible for the child's support does not exceed certain limits.  38 U.S.C.A. § 1542; 38 C.F.R. § 3.3(b)(4).  

The Veteran, who served in the Army for more than 90 days during the Vietnam Era, died in September 2002.  The appellant is the mother of their two children, both of which were minors at the time of the receipt of the appellant's claim.  

The maximum annual rates of improved pension payable under Pub. L. 95-588 (92 Stat. 2497) are set forth in 38 C.F.R. §§ 3.23 and 3.24.  The monthly rates and annual income limitations applicable to this case are set forth in 38 C.F.R. § 3.21 (2012).  The rates for the pertinent years are as follow:

Effective December 1, 2008, the maximum allowable rate for a surviving spouse with two children was $12,405 and the maximum allowable rate for 2 children was $4,040 ($2,020 per child); effective December 1, 2009, the maximum allowable rate for a surviving spouse with two children was $12,852 and the maximum allowable rate for 2 children was $4,186 ($2,093 per child).  See M21-1, part I, Appendix B.  

Pension shall be paid to two children in the custody of a person legally responsible for the child's support at an annual rate equal to the difference between the rate for a surviving spouse and one child, plus an additional rate for an individual child, under 38 C.F.R. § 3.23(a)(5), and the sum of the annual income of such children and the annual income of such person, or the maximum annual pension rate under 38 C.F.R. § 3.24(b) of this section (a child with no custodian), whichever is less.  38 C.F.R. § 3.24(c).  

In determining annual income, all payments of any kind or from any source including salary, retirement or annuity payments, or similar income, which has been waived, shall be included except for listed exclusions.  38 U.S.C.A. § 1503(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.271(a) (2012).  

The following, as set forth in 38 C.F.R. § 3.272, shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare, maintenance, VA pension benefits, reimbursement for casualty loss, profits realized from a property sale, joint accounts, unreimbursed medical expenses, expenses of last illnesses and burials and just debts, educational expenses, certain portion of a child's income, Domestic Volunteer Service Act program payments, distribution of funds under 38 U.S.C.A. § 1718, child's available income under hardship circumstances, survivor benefit annuity paid by the Department of Defense, Agent Orange settlement payments, restitution to individuals of Japanese ancestry, proceeds from the case surrender of a life insurance policy which represent a return of insurance premiums, income received by American Indian beneficiaries from trust or restricted lands, Radiation Exposure Compensation Act payments, and Alaska Native Claims Settlement Act payments.  Exclusions from income do not include Social Security disability benefits.  38 C.F.R. § 3.272 (2012).  Such income is therefore included as countable income.  

The appellant, acting as the custodian of the Veteran's minor children, filed the present claim on May 14, 2009.  This was received several months before the eldest child's 18th birthday in September 2009.  The appellant was notified in a September 2009 decision that the children's combined Social Security income exceeded the maximum annual pension limit of $27,936.00 (for a custodian with two minor children).  She was notified that if VA received evidence prior to January 1, 2012, that the children's income was within the limit as of May 14, 2009, VA may consider paying benefits from June 2009.  

In September 2009, VA received a statement from the appellant, indicating that her oldest daughter now lived on her own following her 18th birthday.  As such, the sole income of her and her one minor child was her Social Security payments in the amount of $1,164.00 per month.  This comes out to $13,968.00 per year, which exceeds the applicable custodian with one child maximum annual pension rate for that year.  

In summary, the appellant has not reported her income since 2009, despite being notified that evidence of a reduction in income could result in benefits dating back to June 2009.  As such, the Board is unable to determine whether there has been a reduction in the appellant's annual income.  The most recently reported 2009 rate of $13,968.00 annually is remains in excess of the increased maximum annual pension rate of $12,852.00 set in 2011, effective as of December 1, 2009.  As such, the claim must be denied.  Although the Board is sympathetic to the appellant's situation, the law compels the conclusion reached in this case.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

Entitlement to death pension benefits is denied.  



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs