Citation Nr: 1319623 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 12-19 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions for 38 U.S.C.A. § 1318. 3. Entitlement to accrued benefits for VA compensation. 4. Entitlement to VA nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United Navy from August 1943 to May 1946 and from June 1952 to May 1953. He died in October 2011. The appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a March 2012 determination by the Regional Office (RO) in Wichita, Kansas. In that decision, the RO denied the appellant's claim for DIC, death pension, and accrued benefits. The RO construed the appellant's DIC claim to include the issue of entitlement to service connection for the cause of the Veteran's death, which was addressed by the RO in the discussion section of the DIC claim. Also, the appellant subsequently submitted medical evidence in support of her claim that the cause of the Veteran's death was related to his period of service. All issues identified on the title page are properly before the Board at this time. In February 2013, the Board solicited an expert medical opinion from a physician with the Veterans Health Administration (VHA) concerning the etiology of the cause of the Veteran's death. In March 2013, the Board received the requested VHA opinion. The appellant's representative submitted a response to this medical opinion in a May 2013 informal brief, which has been associated with the claims folder. Please note that the Veteran's appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in October 2011, and his death certificate indicates that the immediate causes of his death was chronic obstructive pulmonary disorder (COPD) and another significant condition contributing to, but not resulting in the underlying cause, was chronic renal failure. 2. At the time of the Veteran's death, service connection was in effect for bilateral hearing loss, rated as 40 percent disabling; tinnitus, rated as 10 percent disabling; and hemorrhoids, rated as noncompensable. 3. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death. 4. The Veteran's COPD and chronic renal failure did not first manifest until decades after his separation from his second period of service, and the preponderance of the competent evidence of record is against a finding that the Veteran's COPD and chronic renal failure was related to his periods of service. 4. The Veteran was not in receipt of or entitled to receive a 100 percent evaluation prior to death, and his death was not due to a service-connected disability. 5. A claim for VA benefits was not pending at the time of the Veteran's death in October 2011. 6. The evidence indicates that the appellant's income exceeds the maximum countable income for death pension. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 101, 1131, 1310 (West 2002); 38 C.F.R. § 3.312 (2012). 2. The criteria for benefits under 31 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 101, 1318 (West 2002); 38 C.F.R. § 3.22 (2012). 3. The criteria for accrued benefits were not met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.2, 3.3 (2012). 4. The criteria for VA death pension benefits were not met. 38 U.S.C.A. § 101, 1521, 1541 (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the claimant must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). In the context of a claim for DIC benefits, which includes a claim of service connection for the cause of death, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 at 352-353 (2007). In this case, the appellant was sent a letter in February 2012 which informed her how VA could help her obtain evidence in support of her claims. The appellant was also advised how to substantiate claims for accrued benefits, death pension, and service connection for cause of death. The notice letter also informed the appellant about how ratings and effective dates for service connected disabilities are assigned. A June 2012 letter contained the information required by Hupp. The appellant's claim was most recently readjudicated in July 2012. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that additional relevant information exists. The Board obtained a medical opinion in this case in March 2013, the results of which will be discussed below. The report demonstrates that the medical examiner reviewed the evidence of record and rendered an appropriate opinion based on the question presented by the Board. This opinion was rendered after a thorough review of the claims file and is supported by the evidence of record. Therefore, the Board finds that the evidence of record is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the appellant. The appellant has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. She has retained the services of a representative, and she has been declined an opportunity to testify before a member of the Board. Accordingly, the Board will address the claim on appeal. 2. Cause of Death To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). Here, at the time of Veteran's death, service connection was in effect for bilateral hearing loss, rated as 40 percent disabling; tinnitus, rated 10 percent disabling; and hemorrhoids, rated as noncompensable. The appellant has not asserted, and the evidence of record fails to indicate, that any of the Veteran's service-connected disabilities contributed to his death. 38 C.F.R. § 3.312(a). The Veteran's death certificate indicates that the immediate cause of his death was chronic obstructive pulmonary disorder (COPD), and chronic renal failure was listed as a significant condition contributing to death, but not resulting in an underlying cause of death. Prior to his death, the Veteran provided lay statements regarding his in-service exposure to asbestos while he served on the USS Ebert during World War II (WWII). He reported that he mixed asbestos fibers and water together and placed it over pipes by hand while on board the naval ship. He also reported being exposed to smoke powder from gunfire where he served as a gunner's mate. The appellant contends that the cause of the Veteran's death, COPD, was related to his periods of service, to include in-service exposure to asbestos and smoke powder from gunfire. Initially, the Board observes that the Veteran's service records confirm that he served on the USS Ebert during WWII. VA has acknowledged that during WWII, several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. See VA Adjudication Procedural Manual, M21-1MR, Part IV, Subpart ii, 2.C.9.g. The Board concedes that the Veteran was exposed to asbestos during his period of service from August 1943 to May 1946. Also, the Board finds the Veteran's lay statement regarding exposure to smoke powder from gunfire to be competent and credible, as well as consistent with his service as a gunner's mate during WWII. His service treatment records do not show diagnoses of, or treatment for, either COPD or chronic renal failure. When examined for separation from his second period of service in May 1953, the Veteran's lungs, chest, and genitourinary system were assessed as normal. Chest x-ray was negative. There is no medical evidence showing that an onset of any respiratory or renal-related problems during the Veteran's period of service or within the first year after his separation from service. 38 C.F.R. §§ 3.303, 3.307. 3.309. The available post-service treatment records are dated decades after the Veteran's separation from his second period of service and show that the Veteran had a diagnosis of COPD and he reported a history of emphysema. See VA treatment records starting in October 2000. The report of a March 2009 private chest CT scan revealed findings of a 7 millimeter (mm) nodule in the right lung apex, mild COPD, and some scarring in the left lung, but there was no evidence of pleural thickening or calcified pleural plagues. There are no post-service treatment records relating to chronic renal failure. The significant evidentiary gap between the Veteran's active service and the first diagnosis of any respiratory and renal problems, weighs heavily against the appellant's claim for service connection for cause of the Veteran's death on a direct basis. A lengthy period without treatment also is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The record contains two medical statements of record from the Veteran's treating physician, Dr. L.R.S., with one dated prior to the Veteran's death and one dated thereafter. In a March 2009, Dr. L.R.S. stated that the Veteran had severe COPD and his history of asbestos exposure during his WWII service "should be taken into consideration as an aggravating factor" and he suggested that further evaluation by a pulmonologist be sought. Then in a February 2012 statement, Dr. L.R.S. stated that the Veteran's reported history of exposure to asbestos and smoke powder was "a contributing factor to his COPD and more than likely the cause of his death." In February 2013, the Board sought to obtain a VHA medical opinion that would specifically address whether that the cause of the Veteran's death, COPD, is related to his in-service exposure to asbestos and/or smoke powder from gunfire. Pursuant to the Board's VHA medical opinion request, in March 2013, a VA medical examiner considered the question of whether the COPD that caused the Veteran's death was due to asbestos and/or smoke powder from gunfire. However, after reviewing the record, the examiner concluded that his COPD was not related to his period of service. The VA examiner found that medical evidence did not show that the Veteran had any asbestos-related lung disease. The examiner noted that the findings recorded on the June 2009 chest CT scan report were not indicative of asbestosis or asbestos-related lung disease and COPD is not associated with asbestos exposure. The examiner questioned whether Dr. L.R.S's assessment of severe COPD was accurate given the mild findings on the June 2009 CT scan report and the Veteran's reported ability to walk one mile without problem in February 2002, and ultimately questioned whether the Veteran's COPD was the cause of his death. Regardless, the examiner concluded that the cause of the Veteran's death was less likely than not related to his period of service. The examiner supported his medical conclusion by noting that the Veteran had a 50 year history of smoking a pipe and there was no evidence that he had significant pulmonary problems until decades after this period of service. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433(1995). While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When assessing the probative value of a medical opinion, the access to claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). Here, the March 2013 examiner's medical nexus opinion is the most probative opinion on this issue. The opinion is based upon a complete review of the Veteran's entire claims files, including Dr. L.R.S.'s medical statements, and is supported by a thorough rationale. In contrast, the March 2009 medical statement from Dr. L.R.S. is speculative by its terms and does not assist with providing any probative value either for or against the Veteran's claim. In his February 2012 medical statement, Dr. L.R.S. does not provide a rationale for his conclusion, beyond stating that he did not believe that the Veteran inhaled any smoke during his 50 year history of pipe smoking to his knowledge. The Board finds that the VA medical examiner's conclusion that the Veteran likely inhaled some pipe smoke during his very length history to be more persuasive. Moreover, Dr. L.S.R. failed to discuss how the Veteran's in-service exposure to asbestos contributed to his development of COPD, given that there was no evidence indicative asbestosis or asbestos-related disorder on the June 2009 chest CT scan. While the Board cannot ignore or disregard the findings of a medical professional, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). Therefore, based on the foregoing discussion, the Board finds that the 2013 VA examiner's negative medical nexus opinion is the most probative in this matter and it weighs heavily against the Veteran's claim. The Board is sympathetic to the appellant in that it is clear she sincerely believes her spouse's death was caused by his period of service. However, there is no probative lay or medical evidence of record that supports this contention. The Board acknowledges that lay evidence can be competent and sufficient to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). That notwithstanding, she has not asserted a continuity of symptomatology between service and the disorders that were identified as the underlying cause of death, and the appellant is not otherwise competent to provide an opinion as to etiology of the cause or contributing causes of the Veteran's death in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Having carefully reviewed the record, the Board has determined that service connection for the cause of the Veteran's death is not warranted. The Board has considered the assertions of the appellant that her husband's death is somehow related to his service. However, as previously discussed, the competent evidence of record does not show that the causes of the Veteran's death had an onset during his periods of service or within the first year after his separation from his second period of service, and the preponderance of the competent evidence is against a finding that the Veteran's COPD or chronic renal failure is otherwise related to his period of service. Additionally, there is no indication of record that any of the Veteran's service-connected disabilities attributed to the immediate cause of his death, COPD, or the other contributory condition, chronic renal failure. For these reasons, the Board finds that service connection for the cause of the Veteran's death is not warranted. See 38 C.F.R. § 3.312. As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt does not apply. See 38 C.F.R. §§ 3.102; Ortiz, 274 F.3d at 1365. The appellant's claim must be denied. 3. 38 U.S.C.A. § 1318 When a Veteran dies, not as the result of his own willful misconduct, and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability, and the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death, or the disability was continuously rated totally disabling for a period of not less than 5 years from the date of such Veteran's discharge or other release from active duty, or the Veteran was a former prisoner of war who was continuously rated totally disabling for not less than one year immediately preceding his death and died after September 30, 1999, then VA will pay DIC benefits to the surviving spouse in the same manner as if the Veteran's death was service-connected. 38 U.S.C.A. § 1318. "Entitled to receive compensation" means that at the time of death, a Veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the Veteran; (3) the Veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA decision concerning the issue of service connection, disability evaluation, or effective date; (4) the Veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (6) VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. 5308 but determined that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22. Claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during a Veteran's lifetime, and without consideration of hypothetical entitlement for benefits raised for the first time after a Veteran's death. See Rodriguez v. Peake, 511 F.3d 1147 (2008). In the instant case, the Veteran had active duty from August 1943 to May 1946 and from June 1952 to May 1953. At the time of the Veteran's death in October 2011, the Veteran was a 40 percent evaluation for bilateral hearing loss, a 10 percent evaluation for tinnitus, and a noncompensable evaluation for hemorrhoids. During his lifetime, the Veteran did not have had a disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding his death. The statutory criteria under 38 U.S.C.A. § 1318 have not been met. Neither the Veteran during his lifetime, nor the Appellant has specifically pled CUE in any previous rating actions. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (noting that any claim of CUE must be pled with specificity); Fugo v. Brown, 6 Vet. App. 40 (1993) (holding that a valid claim of CUE requires specific allegations of CUE). Although the Board is sympathetic to the Appellant's claims, entitlement to DIC benefits under 38 U.S.C.A. § 1318 is based upon specific and unambiguous requirements that have not been met in the instant case. The Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board emphasizes, however, that the denial of this claim does not in any way diminish the Veteran's distinguished service. As the preponderance of the evidence is against the Appellant's claim of entitlement to DIC under 38 U.S.C.A. § 1318, the benefit of the doubt doctrine does not apply, and her claim must be denied. See 38 U.S.C.A. § 5107 (West 2002). 4. Accrued Benefits Under 38 U.S.C.A. § 5121, a proper party is entitled to any periodic monthly benefits under laws administered by the Secretary to which the decedent was entitled at his death under existing ratings or decisions, or those benefits based on the evidence in file at the time of the deceased's death which were due and unpaid preceding the deceased's death. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In Jones v. West, 136 F.3d 1296 (Fed Cir. 1998), the Court held that a veteran must have had a claim pending at the time of his death else be entitled to benefits under an existing rating or decision in order for a surviving spouse to be entitled to accrued benefits. Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). In the instant case, the Veteran died in October 2011. The appellant filed her initial application for VA benefits in November 2011, a month after her husband's death. However, the record shows that he had no claims for benefits pending prior to or at the time of his death. Most recently, in a July 2009 rating decision, the Veteran was awarded an increase evaluation from noncompensable to 40 percent disabling for his service connected bilateral hearing loss, and his claims of entitlement to service connection for COPD and dental treatment had been denied. The Veteran did not appeal, and that rating decision became final. The Veteran filed no other correspondence after the July 2009 rating decision and prior to his death that could be construed as a claim that had not been adjudicated by the RO. The Board concludes that the appellant's claim for accrued benefits must be denied as a matter of law because the decedent had no pending claims at the time of his death. See Sabonis v. Brown, 6 Vet. App. 426, (1994). The Board has carefully reviewed the entire record in this case. However, this is a case in which the law is dispositive, and entitlement to accrued benefits is not warranted. Therefore, entitlement to accrued benefits must be denied. 5. Death Pension The appellant is the surviving spouse of a Veteran who had qualifying wartime service; as such, she may be entitled to a rate of pension set by law, reduced by the amount of her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. The appellant contends that she is entitled to VA death pension benefits, based on the Veteran's service. She feels that, as his surviving spouse, she is entitled to death pension. However, death pension is an income-based benefit for low income qualifying survivors, and the maximum rate of death pension benefits that may be paid is set by law. An otherwise qualifying claimant will be paid up to the maximum rate, reduced by the amount of his or her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. In other words, any countable income of the appellant will reduce the pension benefits, dollar for dollar, by the amount of the income. Thus, if the appellant's annual income exceeds the maximum payable rate, the entire amount is offset, and the appellant is not entitled to any death pension benefits. In determining income for purposes of entitlement to death pension, payments of any kind from any source are counted as income during the 12-month period in which received unless specifically excluded under 38 C.F.R. § 3.272. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. In support of her November 2011 formal claim for death pension, the Veteran submitted evidence that showed her KPL retirement was $219 a month and she received interest income of $56 in October 2011, $70 in November 2011, and $56 in December 2012. Records from SSA demonstrated that she was in receipt of $1225 monthly benefits in October 2011 and $1269 month benefits in December 2011, or an annual income of $17,384 from October 2011 and $17,912 from December 2011. On its face, the appellant's income exceeds the maximum countable income for death pension benefits for that time period, which was $7,933.00 per year, increased to $8218 effective December 1, 2011, for surviving spouses without dependent children, such as the appellant. See 38 C.F.R. § 3.23(a) (5). The appellant also completed a Financial Status Report, enclosing VA Form 21-0518, in which she identified allowed expenses of $6068. This was composed from Blue Cross/Blue Shield of $2628 annually, medications of $660 annually, Medicare Part B of $1200 annually, and burial expenses of $1340. The appellant's annual income minus her allowed expenses equals to $11,609 from October 2011 and $12,132 from December 2011. The appellant's countable income for all periods pertinent to her claim exceeds the maximum annual income allowed for the payment of death pension benefits. The appellant is thus precluded from receiving death pension benefits. See 38 C.F.R. § 3.23(a) (5). Should her financial status change, she may re-file for such benefits. At present, however, her claim must be denied. The evidence in this case is not in relative equipoise. The benefit-of-the-doubt rule is therefore not for application. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits under the provisions for 38 U.S.C.A. § 1318 is denied Entitlement to accrued benefits for VA compensation is denied. Entitlement to VA nonservice-connected death pension benefits is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs