Citation Nr: 1309740 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 12-28 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE 1. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability for accrued benefits purposes. 2. Entitlement to restoration of nonservice-connected death pension benefits from January 1, 2008, to April 1, 2012. REPRESENTATION Appellant represented by: John M. Kennedy, Jr., Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from April 1942 to December 1945. He died in December 2006, and the Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board observes that the Appellant initially requested a hearing before a Veterans Law Judge in conjunction with this appeal. However, as detailed in a January 2013 statement from her attorney, the Appellant withdrew her hearing request. The Board also observes that the current appeal includes records that are located only in the electronic Virtual VA system, and, as detailed below, the Appellant has not expressly waived initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ). However, these records only appear to pertain to her current death pension claim, and not the appeal of entitlement to TDIU for accrued benefits purposes. Therefore, there is no prejudice to the Appellant by the Board proceeding with adjudication of the TDIU claim. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). For the reasons addressed in the REMAND portion of the decision below, the Appellant's death pension claim is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran died in December 2006. At the time of his death he had, among other things, an unadjudicated claim pending of entitlement to TDIU due to service-connected disabilities. 2. At the time of his death the Veteran was service-connected for a low back disorder, evaluated as 40 percent disabling; a cervical spine disorder, evaluated as 20 percent disabling; hearing loss, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and a right arm scar, evaluated as zero percent (noncompensable). His overall combined rating was 70 percent. 3. The record does not reflect that at the time of his death the Veteran was unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for a grant of TDIU for accrued benefits purposes are not met. 38 U.S.C.A. §§ 1155, 5007, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.1000, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Appellant was sent VCAA-compliant notification via a letter dated in December 2007, which is clearly prior to the March 2009 rating decision that denied entitlement to a TDIU for accrued benefits purposes. This letter informed the Appellant of what was necessary to substantiate an accrued benefits claim, what information and evidence she must submit, what information and evidence will be obtained by VA, and the need for the Appellant to advise VA of or to submit any evidence in her possession that was relevant to the case. The Board also notes that the Appellant has actively participated in the processing of this case, and the statements submitted in support of her accrued benefits claim, to include from her attorney, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... 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.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In view of the foregoing, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate this accrued benefits claim and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding this accrued benefits claim. Various records were obtained and considered in conjunction with this case. Further, both the Veteran during the lifetime, and the Appellant as part of the current claim, had the opportunity to present evidence and argument in support of this claim. Nothing indicates that either of them identified the existence of any relevant evidence that has not been obtained or requested regarding the underlying TDIU claim. As noted in the Introduction, the Appellant withdrew her request for a hearing in conjunction with this appeal. Moreover, during his lifetime the Veteran was accorded VA medical examinations in July and November 2006 which made relevant findings regarding the symptomatology of his service-connected disabilities. Although no comprehensive opinion appears to have been promulgated regarding the effect these disabilities had upon his employability, due to the unfortunate death of the Veteran it is not possible to remand for a new examination. The Board further notes that the law mandates adjudicating accrued benefits claims based upon the evidence that was of record at the time of the Veteran's death. Consequently, the Board finds that the duty to assist has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis The law governing claims for accrued benefits provides that, upon the death of a veteran, periodic monetary benefits authorized under laws administered by VA to which a payee was entitled at his death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid to his spouse. 38 C.F.R. § 3.1000(a)(1)(i). The person that bore the expense of the veteran's last sickness and burial may be paid periodic monetary benefits to which he was entitled at the time of his death based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a)(5). For a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of death for those benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In this case, the record reflects the Veteran did have a claim of entitlement to TDIU due to service-connected disabilities at the time of his death. Therefore, the Board will proceed with adjudication of whether the criteria for assignment to a TDIU is satisfied. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). At the time of his death the Veteran was service-connected for a low back disorder, evaluated as 40 percent disabling; a cervical spine disorder, evaluated as 20 percent disabling; hearing loss, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and a right arm scar, evaluated as zero percent. His overall combined rating was 70 percent. See 38 C.F.R. § 4.25. Therefore, he satisfied the schedular requirements for consideration of a TDIU. Despite the foregoing, the Board concludes that the record does not reflect that, at the time of his death, the Veteran was unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. The Board acknowledges that the Veteran was unemployed at the time of his death, and that he had not worked for decades prior to his death. (He died at age 87, and stopped working at age 62.) However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, supra. The Board acknowledges that the Veteran reported at the July 2006 VA medical examination that his main complaint was his back, that it was 9/10 in intensity, sharp in nature, worse in movement, he could only walk about a block before he needed to stop because of his back, and that he could only stand for about 10 minutes limited by his back. However, he had no problems sitting down even though he could not do any lifting because of his back. Further, he reported that his hearing was bad in that he had problems hearing people especially on the phone. Similar complaints were noted on a November 2006 VA general medical examination, which was apparently also conducted by the July 2006 VA examiner. The Board also notes that this examiner did not express any opinion as to the effect the Veteran's service-connected disabilities had upon his employability. A November 2006 VA spine examiner only noted that the Veteran was currently retired and not seeking employment at this time. In addition, a July 2006 VA audio examiner opined that the Veteran's hearing impairment and service-connected tinnitus did not render him unemployable, noting that he was protected under the Americans with Disabilities Act which protects workers from discrimination, including hiring and firing. The Board acknowledges that aforementioned VA examiners did not provide a detailed opinion as to whether the service-connected disabilities rendered the Veteran unable to obtain and/or maintain substantially gainful employment. Nevertheless, the July and November 2006 VA examinations noted that the Veteran's problems did not affect his activities of daily living, and he was living a sedentary lifestyle. Further, it was noted that after his discharge from service in 1945 the Veteran was initially employed as a floor worker in the garment industry, and although the physical demands of the job did not allow him to continue, he changed to real estate, and continued to work until age 62. He was not currently seeking employment. Certainly the Veteran's back, cervical spine, hearing loss, and tinnitus would have made it difficult for him to continue to work to include having meetings regarding real estate. Further, the Board does not dispute that the service-connected disabilities did result in occupational impairment. However, a loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose, 4 Vet. App. at 363 (Noting that the disability rating itself is recognition that industrial capabilities are impaired). Here, the record indicates that the Veteran's service-connected disabilities did not affect his activities of daily living, suggesting a capacity for sedentary employment, or in any case, did not preclude substantially gainful employment. Moreover, the record reflects that he also experienced significant impairment from nonservice-connected disabilities during this period including coronary artery disease, hypertension, prostatic hypertrophy, gastroesophageal reflux disease, and the lung cancer which was the ultimate cause of his death. In determining whether a veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his advancing age may be considered. See Id. Under the circumstances of this case, the Board finds that the evidence does not reflect the Veteran was unemployable due solely to his service-connected disabilities at the time of his death. ORDER Entitlement to a to TDIU due to service-connected disability for accrued benefits purposes is denied. REMAND Basic entitlement to VA nonservice-connected improved death pension benefits exists if: (i) the veteran had qualifying service (a veteran who served during wartime) or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.A. §§ 1541, 1542; 38 C.F.R. § 3.3(b)(4). The Board notes that it was previously determined that the Appellant satisfied the basic eligibility criteria for nonservice-connected death pension benefits. However, these benefits were discontinued effective December 1, 2008, based upon a finding that her countable income exceeded the annual limit for receipt of these benefits. 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); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a). Social Security benefits for any household member, including those for an adult child from a former marriage, are not specifically excluded under 38 C.F.R. § 3.272. Under 38 C.F.R. § 3.272 , the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses in excess of five percent of the MAPR, which have been paid. The rates of death pension benefits are published in tabular form 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. Recurring income means income which is received or anticipated in equal amounts and at regular intervals, and which will continue throughout an entire 12-month annualization period; the amount of recurring income will be the amount received or anticipated during a 12-month annualization period. 38 C.F.R. § 3.271(a)(1). The amount of any recurring income received by a beneficiary shall be added to determine the beneficiary's annual rate of income for a 12-month annualization period commencing at the beginning of the 12-month annualization. 38 C.F.R. § 3.273(d). For purpose of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a surviving spouse for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the applicable MAPR for the surviving spouse as in effect during the 12-month annualization period in which medical expenses were paid. 38 U.S.C.A. § 1503(a)(8) ; 38 C.F.R. § 3.272(g). In this matter, the September 2012 Statement of the Case (SOC) does not indicate the Appellant submitted any unreimbursed medical expenses. However, the evidence available through Virtual VA indicates that she did provide such information in April 2012, and that these expenses were listed as covering the period from 2007 to 2011. The Board also observes that Virtual VA includes a May 2012 rating decision that concluded the Appellant was entitled to pension benefits at the aid and attendance rate, and that death pension benefits resumed April 1, 2012. However, the record does not reflect the Appellant has explicitly waived initial AOJ consideration of this evidence pursuant to 38 C.F.R. § 12.304. Moreover, it is not clear from the information provided as to when all of the listed expenses were actually incurred. For example, she listed private medical insurance of over $250 per month, and over $3,000 per year, but it is not clear if she paid the same amount for every year. She also reported a home healthcare fee of $800 in July, but it is not clear if this was for one year, multiple years, and if so which year(s). Additionally, she reported $200 for eyeglasses in February 2011, but it is unclear if she had similar expenses in other years. In view of the foregoing, the Board finds that a remand is required to obtain clarification from the Appellant regarding her unreimbursed medical expenses for the period from January 1, 2008, to April 1, 2012, and for the RO to consider such evidence in the first instance. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request clarification from the Appellant regarding the information she provided as to her unreimbursed medical expenses for the period from 2007 through 2012, to include the amount of expenses for each year. 2. After completing any additional development deemed necessary, calculate the Appellant's monthly income for each annualization period by taking into account her reported unreimbursed medical expenses for each year. All appropriate financial calculations should be included in the claims file the to determine whether the Appellant's income exceeds the MAPR limits for a surviving spouse for the receipt of nonservice-connected death pension benefits from January 1, 2008, to April 1, 2012. 3. Thereafter, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Appellant's satisfaction, the Appellant and her attorney should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained after the issuance of the September 2012 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs