Citation Nr: 1331260 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 13-08 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to non-service-connected death pension. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1943 to August 1946. He died in December 2010. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a May 2012 decision of the Department of Veterans Affairs (VA) Pension Management Center located in Milwaukee, Wisconsin (RO). 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 In December 2010, the appellant filed an informal claim for non-service-connected death pension. She then specified that she desired to claim such at the housebound rate. In March 2011, VA sent the appellant a letter, along with VA Form 21-534. The notice letter explained that VA would pay death pension when the death of a veteran with wartime service is not due to service and income was within certain limits. It also explained that VA may pay a higher rate of pension if, inter alia, an applicant was confined to their home due to disability. VA apparently sent the same information to the appellant in April 2011. In August 2011, the appellant returned VA Form 21-534. On the form, she indicated that she was not claiming non-service-connected death pension at the housebound rate. She provided some income and asset information. She also listed some cash assets under "child(ren)." In March 2012, VA wrote to the appellant asking for clarification of her application. In particular, the RO sought clarification on her net worth as well as her income, particularly in light of listed accounts which possibly paid interest and her unclear response to the RO's request for information. The letter also requested that she provide information on medical expenses. The letter reiterated that death pension was payable when net worth and income did not exceed certain requirements. In April 2012, the appellant responded. She provided VA a bank statement. She also submitted an Improved Pension Eligibility Verification Report. On this form, she only listed income from the Social Security Administration (SSA) of $700.00 monthly. She also listed about $80,000.00 in assets. In May 2012, the RO denied the appellant's claim. The RO denied the claim specifically on the grounds that the appellant "failed to submit the requested evidence." The denial explained that the RO had insufficient information to decide the claim and asked that the appellant provide further information regarding her income, net worth and medical expenses. The letter also asked the appellant to clarify whether she was claiming pension at the housebound rate due to the conflicting information she provided. In June 2012, the appellant indicated that she disagreed with the RO's denial of the claim. She explained that she had attempted to get help with her claim by calling "Columbia Hospital," but that she could not get help due to a problem with the claim number she had been provided. In an October 2012 letter, the RO again asked the appellant for income, asset and expense information. She did not respond to the RO's request. In February 2013, the RO issued a Statement of the Case (SOC) addressing the issue. Again, it denied the claim on the grounds that the appellant failed to respond, noting that the evidence did not show that she met the qualifications for the benefits sought. Basic entitlement to VA non-service-connected improved death pension benefits exists if: (i) the veteran had qualifying service (a veteran who served during wartime); or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. § 3.3(b)(4) (2012). The purpose of VA pension benefits is to provide a subsistence income for the surviving spouses of veterans of a period of war who were totally disabled. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the appellant supports. Recipients of pension income are required to report any changes in income and net worth, and number or status of their dependents in a timely fashion. 38 U.S.C.A. §§ 1541, 1542 (West 2002). The rate of pension payable to an entitled payee is based on the amount of countable income received. Pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12-month annualized basis. 38 U.S.C.A. §§ 1503, 1541 (West 2002); 38 C.F.R. §§ 3.3, 3.23 (2012). Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(3) (2012). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c) (2012). For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a surviving spouse for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the applicable maximum annual pension rate (MAPR) for the surviving spouse as in effect during the 12-month annualization period in which medical expenses were paid, regardless of when the indebtedness occurred. 38 U.S.C.A. §§ 501, 1503(a)(8) (West 2002); 38 C.F.R. § 3.272(g) (2012). Expenses of last illnesses, burials and just debts, incurred by a surviving spouse, which are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant's advantage. Otherwise, such expenses are deductible for the 12-month annualization period in which they were paid. 38 C.F.R. § 3.272(h). In terms of notice, the RO has notified the appellant that the benefits sought are awarded when certain income and net worth requirements are met. It provided her with the appropriate forms and information, yet the appellant has not provided sufficient information for VA to make a determination on her claim. However, as she has indicated that she tried to contact VA for further information and has attempted to provide the necessary information, the Board feels that she should again be afforded an opportunity to substantiate the claim. She should also again be asked if she desires to claim non-service-connected death pension at the housebound rate. 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. Send the appellant a letter concerning how VA calculates eligibility for non-service-connected death pension, and which outlines her and VA's respective duties in substantiating the claim. Along with this notice, the appellant should be asked if she is claiming pension at the housebound rate. She should again be provided with Improved Pension Eligibility Verification Reports for the years at issue and asked to complete and return such reports. She and her representative should be afforded an appropriate amount of time to respond. 2. After the development directed in paragraph 1 has been completed to the extent possible, the RO should readjudicate the claim on the merits. If the benefit sought on appeal is not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case and afforded a reasonable 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 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). _________________________________________________ S. S. TOTH 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).