Citation Nr: 1323260 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-41 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to accrued benefits based on nonservice-connected death pension to the Veteran's spouse. WITNESSES AT HEARING ON APPEAL Appellant and P.F. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from May 1942 to December 1945. He died in August 1995. The Veteran's spouse, STM, survived. In September 2008, STM filed a claim of entitlement to dependency and indemnity compensation (DIC), nonservice connected death pension benefits, and accrued benefits. STM was granted entitlement to an aid and attendance allowance in an October 2008 rating decision. By decisions dated in December 2008 and March 2009, entitlement to DIC and accrued benefits were denied. In the March 2009 rating decision the RO granted entitlement to death pension benefits at the aid and attendance rate, with monetary awards payable effective October 1, 2008. STM passed away on May [redacted], 2009. The appellant is STM's son and on behalf of her estate claims entitlement to payment of remaining benefits due and payable at the time of her death. The appellant was afforded a video hearing in March 2011 before the undersigned Veterans Law Judge sitting at Washington, DC. The transcript is of record. Following review of the record, 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 While STM passed away in May 2009, following VA's March 2009 letter notifying her of the award of nonservice connected pension benefits at the aid and attendance rate, a letter was received from STM challenging the amount of death pension at the aid and attendance rate. It was argued that family medical expenses and countable income were incorrectly calculated. The appellant, filing on behalf of STM's estate continues that challenge disputing the accuracy of the calculations, with the argument that STM's countable income was effectively zero such that a higher monthly award was warranted. In general, the surviving spouse of a Veteran is entitled to receive nonservice-connected death pension benefits if the Veteran had qualifying service and the surviving spouse's meets the net worth requirements of 38 C.F.R. § 3.274 (2012) and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23 (2012). 38 U.S.C.A. § 1541(a) (West 2002); 38 C.F.R. § 3.3(b)(4) (2012). Under applicable criteria, payments of improved death pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C.A. §§ 1503, 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.23. Payments of any kind from any source will be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272 (2012). The types of income excluded for VA pension purposes must be deducted in the year in which they occurred. 38 C.F.R. § 3.272. Social Security Administration income is not specifically excluded under 38 C.F.R. § 3.272. Unreimbursed medical expenses, however, which were paid within the 12-month annualization period regardless of when incurred are excluded from annual countable income to the extent that the amount paid exceeds five percent of the maximum annual rate payable. 3 8 C.F.R. § 3.272 (g)(1)(iii). The maximum annual rate of pension is established by statute every year and is reduced by the appellant's countable annual income. 38 C.F.R. § 3.23(d)(4). Each increase of the maximum annual rates of improved pension under 38 U.S.C.A. § 5312 (West 2002) is published in the "Notices" section of the Federal Register. 38 C.F.R. § 3.23. Under controlling regulations the calculations for determining the rate of pension are potentially complex. Nevertheless, the law requires that VA first provide notice of any information, and any lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. Before an appellant can respond to such notice, the notice provided must be sufficiently explanatory that the claimant can understand the basis for VA's decision. Hence, when responding to a challenge to the calculation of an award of nonservice connected pension benefits it is incumbent upon VA to provide an audit of the account. Therefore, in light of the arguments presented the appellant must be provided a month by month, dollar for dollar audit of the decedent's account. This audit must provide a step by step explanation and analysis detailing how the RO arrived at the amount of death pension payable to STM at the aid and attendance rate. The appellant should be provided a copy of this audit and explanation. Accordingly, the case is REMANDED for the following actions: 1. Prepare a month to month audit of the decedent spouse's income, expenses and exclusions from countable income. The audit must set out the countable income from any source, the specific amount of any exclusions from that total, the amount of any deductions from that countable income to include unreimbursed medical expenses, and the rationale or regulatory support for all calculations. The appellant's contentions that STM's income was effectively zero during the period between October 1, 2008 and STM's death in May 2009 must be fully addressed with an explanation as to why this was or was not the case. The appellant must be sent a copy of the audit and a copy should be associated with claims file, together with a full explanation of the calculations relied upon to determine countable income. 2. The appellant should submit a copy of the power of attorney issued to him by STM. 3. The RO should then readjudicate the case. If the relief sought on appeal is not granted to the appellant's satisfaction, issue a supplemental statement of the case and provide an appropriate opportunity to respond before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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).