Citation Nr: 1318226 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 12-08 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to the monetary payment of non-service-connected death pension benefits for the helpless child of the Veteran. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to July 1992. The Veteran died in May 2004. C.C. has been recognized as the helpless child of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) which established permanent incapacity for self-support for C.C. but denied entitlement to non-service-connected death pension benefits due to excessive income. In his March 2012 substantive appeal, the appellant requested a Board hearing via videoconference. In a September 2012 correspondence, the appellant withdrew that request. The request for a Board hearing is therefore withdrawn. 38 C.F.R. § 20.704(e). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that it contains documents relevant to the issue on appeal. In July 2009, the appellant, on behalf of C.C., raised the issue of entitlement to service connection for the cause of the Veteran's death, and in a September 2009 letter the appellant asserted that the Veteran died from asbestosis incurred in service. Since that time, this issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over the issue, and it is referred to the RO for appropriate and immediate action. 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 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 claims entitlement to non-service-connected death pension on behalf of the Veteran's helpless child. The appellant has submitted medical evidence adequately establishing that the child has a chronic mental disorder and has been already determined by VA to be a "helpless child." A helpless child is a child of a veteran who is either under the age of 18 or became permanently incapable of self-support before the age of 18. 38 U.S.C.A. § 101(4)(A)(ii) (West 2002); 38 C.F.R. §§ 3.57(a)(1), 3.356 (2012). The Veteran's helpless child lives with and is cared for by the appellant, who has assisted him in the filing of this claim. The appellant was divorced from the Veteran in January 1997. She is therefore not the surviving spouse of the Veteran, but is the child's custodian and person legally responsible for his child. The instant case hinges on the question whether the appellant and the child's income exceeds the maximum amount allowing for pension payment. Death pension benefits are generally available for surviving children of a veteran, as a result of the veteran's nonservice-connected death, in certain cases . 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 (West 2002); 38 C.F.R. § 3.3(b)(4) (2012). For a surviving child who is in the custody of a personal custodian (i.e., a person legally responsible for the child's support), pension will be paid at a rate equal to the difference between the maximum annual pension rate for a surviving spouse and one child and the sum of the annual income for such child and the personal custodian, or, the maximum annual pension rate for an individual surviving child, whichever is less. 38 C.F.R. § 3.24(c) (2012). If the countable income of the child, or of the child and the personal custodian, exceeds the applicable maximum annual pension rate, pension will not be paid. 38 C.F.R. §§ 3.23, 3.24 (2012). As of December 2012, the maximum annual pension rate for a surviving spouse and one child was $10,942, and the maximum annual pension rate for a child alone was $2,129. Countable income includes payments of any kind from any source during the 12-month annualization period in which the claim was received. 38 C.F.R. § 3.271 (2012). Certain expenses, including unreimbursed medical expenses paid from a child's income for medical care for himself or a parent, may be excluded from countable income for the purpose of determining entitlement to improved pension. 38 C.F.R. § 3.272 (2012). Additionally, Supplemental Security Income benefits from the Social Security Administration are treated as charitable donations or welfare and are not included as countable income. See 38 C.F.R. § 3.272(a). Old age, survivor, and disability benefits from the Social Security Administration are, however, countable as income. The appellant and his mother claim that the child's income consists solely of supplemental security income and therefore cannot be considered as countable income. Notifications from the Social Security Administration dated in December 2004, October 2008, and June 2010 were submitted by the appellant which indicate that as of 2004 the Veteran's child was receiving only supplemental security income benefits from Social Security. Notably, these payments may have stopped as of either January 2006 or May 2010. A Social Security Inquiry Profile received from that agency shows that the child is currently receiving a monthly income of $935, but it is unclear from the data received whether these payments are supplemental security income benefits, disability benefits, or another type of benefit. As there is currently insufficient evidence of record in order to accurately calculate the appellant's and the child's countable income, the case must be remanded for further development. When VA is put on notice of the existence of Social Security records relevant to the current claim, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thus, the RO/AMC should obtain and associate with the claims file a copy of all Social Security payment records for the appellant and the child in order to determine the countable income throughout the period of the appeal, including the nature of the child's Social Security benefits. While this matter is on remand, the RO/AMC should also give the appellant another opportunity to present information and evidence pertinent to the claim, including any information related to medical expenses that may be excluded from countable income under 38 C.F.R. § 3.272. The RO/AMC should then recalculate the sum of the annual income for the appellant and his mother, excluding any income received in the form of supplemental security income or other excludable income under 38 C.F.R. § 3.272. The appellant is eligible for pension only if this amount is less than the maximum annual pension rate for a surviving spouse and one child. 38 C.F.R. § 3.24(c). 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. The RO/AMC must adjudicate the inextricably intertwined claim of entitlement to service connection for the cause of the Veteran's death. The appellant and the Veteran's child are hereby notified that the Board cannot exercise appellate jurisdiction over any denial of this claim in the absence of a timely perfected appeal. 2. The RO/AMC must send to the appellant and the representative a letter requesting that they provide any information pertaining to her income, the child's income and all unreimbursed medical expenses of the child and the appellant that they personally pay. 3. Contact the Social Security Administration to obtain an audit of all available information and payment records associated with the appellant's grant of Social Security Administration disability benefits, and any payment issued to the child for the entire period on appeal. In particular, ascertain the nature of any supplemental security benefits paid to the child, the date the benefits were first granted, whether supplemental security income benefits were discontinued, and the type of benefits currently being received. Associate those records with the claims file. 3. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the issue on appeal, to include the correct application of 38 C.F.R. § 3.24(c) to determine eligibility to nonservice connected death pension based on current income. If the benefit sought is not granted, the appellant and the representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ DEREK R. BROWN 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).