Citation Nr: 1324913 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-42 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to accrued benefits in the form of reimbursement for medical expenses. WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1944 to October 1946. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin, which denied entitlement to any additional benefits based on unreimbursed medical expenses. In January 2011, the appellant presented sworn testimony during a video conference hearing in Jackson, Mississippi, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT At the time of his death, the Veteran did not have a claim pending for VA benefits and there were no due and unpaid periodic monetary benefits to which he was entitled to receive on the basis of evidence in the file. CONCLUSION OF LAW The criteria for accrued benefits have not been met. 38 U.S.C.A. §§ 101(4), 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(c), 3.1000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. Prior to the Board's adjudication of the appellant's accrued benefits claims, a letter dated in September 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. The Board also concludes that VA's duty to assist has been satisfied. The relevant documents relating to the Veteran's history of nonservice-connected pension payments are in the file. As this claim is based on nonservice-connected pension, not service connection or an increased rating for a service-connected disability, any service treatment records or other VA or private treatment records are irrelevant. Further, as the evidence to be considered in accrued benefits claims is limited to that in the file at the time of death, there is no further duty to obtain any treatment or other records not already in the claims file. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite information necessary to make a decision in this case. Some discussion of the appellant's personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified. Information was also elicited from the appellant concerning her contentions regarding the benefits that she believes she is due. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). A claim for such benefits must be filed within one year of the Veteran's death. 38 C.F.R. § 3.1000(a), (c) (2012). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2012). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d) (2011); see also 38 C.F.R. §§ 20.1103, 20.1104 (2012). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (2012); Hayes v. Brown, 4 Vet. App. 353 (1993). A review of the claims file reflects that the Veteran was receiving nonservice-connected pension at the time of his death in December 2007. He was not receiving any other VA benefits and there were no pending claims for additional VA benefits. The appellant received the Veteran's nonservice-connected pension payment for the month of his death. See VA letter, October 2009. The appellant does not disagree with these pertinent facts. Rather, the appellant argues that, in conjunction with his nonservice-connected pension benefits, the Veteran submitted his medical expenses for the prior year at the beginning of each year. She believes that these expenses were reimbursed by VA; and that, although the Veteran did not submit his 2007 expenses prior to his death, she should still be entitled to those medical expenses incurred while he was alive. However, it appears that the appellant misunderstands the purpose of the medical expense report (VA Form 21-8416) that her husband submitted each year. Basic entitlement to an improved (non-service-connected) pension exists if, among other things, a veteran's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. §§ 3.3(a)(3), 3.23(a), (b), (d)(4). The purpose of the medical expense report, as stated in the Note at the top of the form, is to lower a veteran's countable income in order to qualify for nonservice-connected pension. 38 C.F.R. § 3.272. The Veteran's medical expenses for 2007 would be deducted from his income to lower his income to the level required for the continuance of nonservice-connected pension benefits in 2008. These expenses were not reimbursed. As the Veteran passed away in 2007, nonservice-connected pension benefits could not be paid for 2008 and the medical expense report is irrelevant. The Board notes that a medical expense report may be relevant to a death pension claim. However, the appellant has indicated that she does not wish to file for death pension benefits. As there were no claims pending at the time of the Veteran's death and he was not entitled to any benefits under any rating or decision (other than the paid nonservice-connected pension benefits), the legal criteria for award of accrued benefits are not met and the claim must denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board acknowledges the appellant's contentions and her loss. However, the Board is bound by the law and without the authority to grant benefits on any other basis. See 38 U.S.C.A. §§ 503, 1704 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to accrued benefits is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs