Citation Nr: 1313778 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-04 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to basic eligibility for nonservice-connected death pension benefits, as a surviving child of the Veteran. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran had active duty from December 1973 to March 1974. He died in February 2007. The Appellant is the mother and legal custodian of the Veteran's son and seeks benefits for his surviving child. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Appellant then testified at a formal Decision Review Officer hearing at the RO in September 2008. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Appellant if further action is required. REMAND The Appellant/mother contends that the Veteran's minor child should be eligible for nonservice-connected death pension benefits. 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) (2012). Pension shall be paid to a child 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 under § 3.23(a)(5), and the sum of the annual income of such child 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). Under the governing criteria, payments of any kind from any source shall be included as income during the 12-month annualization period in which received unless specifically excluded. 38 C.F.R. § 3.271(a). 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. § 3.271(a). Exclusions from income include the expenses of the Veteran's last illness and burial and for the Veteran's just debts, debts not incurred to secure real or personal property, if paid by the Appellant. 38 C.F.R. § 3.272(h). Such expenses may be deducted only for the 12-month annualization period in which they were paid. 38 C.F.R. § 3.272(h). Exclusions from income do not include Social Security disability benefits. 38 C.F.R. § 3.272. Such income is therefore included as countable income. Medical expenses in excess of five percent of the maximum income rate allowable, which have been paid and not reimbursed, may be excluded from an individual's income for the same 12-month annualization period, to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). 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. § 3.24. The rates of death pension benefits are published in tabular form in appendix B of the 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. The maximum allowable rate for a surviving spouse with one child was $9,287 as effective December 1, 2005; $9,594 as effective December 1, 2006; $9,815 as effective December 1, 2007; and $10,385 as effective December 1, 2008, and December 1, 2009. See M21-1, Part I, Appendix B. The maximum allowable rate for a child, alone, was $1,806 as effective December 1, 2005; $1,886 as effective December 1, 2006; and $1,909 as effective December 1, 2007; and $2,020 as effective December 1, 2008, and December 1, 2009. See M21-1, Part I, Appendix B. In this case, it appears that over the course of the appeal, at least some of the Veteran's child's income was received from Social Security Administration (SSA) for the purposes of awarding the surviving child. The Appellant had previously reported in September 2008 that the child receives SSA income of $1,133 per month, which along with other sources, had totaled $1,903/month of income. However, the Board needs clarification on the amounts of the surviving child's SSA income during the pendency of the appeal. In this regard, a SSA data printout, dated in December 2007, shows monthly SSA payments for the child in the following amounts: (1) $738/month, effective December 2006; (2) $1107/month, effective February 2007; and (3) December 2007. After December 2007, there are subsequently no other reported amounts of income from SSA during the pendency of the claim. Moreover, a recent review of documents associated with Virtual VA shows that the Appellant submitted updated figures on income and expenses for herself and the child in April 2012, on an Improved Pension Eligibility Verification Report (VA 21-0519C-1). On that income listing, the Appellant listed no sources of monthly income. Specifically, she listed $0 of Social Security monthly income for herself and left a blank space for any Social Security income for her child. A review of Virtual VA also shows an Application for Exclusion of Children's Income (VA Form 21-0571), dated in April 2012. The appellant states in the Remarks section of this form, "The child's income is $1,200.00 from pension after the Veteran's death is not enough to cover his expenses." The Board observes that the $1200 monthly pension is from an unclear/unknown source. On remand, the Agency of Original Jurisdiction (AOJ) must undertake development to ascertain the amounts and periods of time of any sources of income are for the Appellant and the surviving child since the Veteran's death in February 2007. In this regard, the AOJ should contact the Appellant to clarify the source and duration of the surviving child's $1,200 monthly pension that is referenced on the April 2012 Application for Exclusion of Children's Income (VA Form 21-0571). Also, in the April 2012 Application for Exclusion of Children's Income (VA Form 21-0571), the Appellant requests to have the child's SSA income excluded, citing that SSA income is not available to her. Nonetheless, under the provisions of the law, SSA income is countable annual income for determining eligibility to death pension benefits. To emphasize, exclusions from income do not include Social Security disability benefits. 38 C.F.R. § 3.272. Thus, on remand, the AOJ must contact the Social Security Administration to verify and account for any income that has been received by the Appellant and her child since the Veteran's death in February 2007. When, as here, VA is put on notice of the existence of potentially relevant SSA records, VA must try and obtain these records before deciding the appeal as part of the duty to assist. See 38 C.F.R. § 3.159(c)(2) and (3) (2012); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997). Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must undertake development to ascertain the amounts and periods of time of any sources of income are for the Appellant and the surviving child since the Veteran's death in February 2007 to the present. In this regard, the AOJ should contact the Appellant to clarify the source and duration of the surviving child's $1,200 monthly pension that is referenced on the April 2012 Application for Exclusion of Children's Income (VA Form 21-0571). 2. The AOJ must contact the Social Security Administration (SSA) to obtain an accounting of any payments made to the Appellant and the Veteran's child. Request that the SSA specify any amounts paid, especially since the Veteran's death in February 2007 to the present. If these requested records do not exist or are unavailable, or the search for them otherwise yields unsuccessful results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Appellant notified in accordance with 38 C.F.R. § 3.159(c)(2) and (e)(1). 3. Then readjudicate the claim in light of any additional evidence. If this claim is not granted to the Appellant's satisfaction, send her a Supplemental SOC (SSOC) and give her an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).