Citation Nr: 1516655 Decision Date: 04/17/15 Archive Date: 04/24/15 DOCKET NO. 13-22 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to payment of nonservice-connected death pension benefits. ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1956, and from May 1956 to May 1972. He died in June 2011, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Philippines. (The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the remand that follows the decision below.) FINDING OF FACT The appellant's annual income exceeds the maximum annual income limit for receipt of payment for nonservice-connected death pension benefits for a surviving spouse with no dependents. CONCLUSION OF LAW The criteria for entitlement to payment of nonservice-connected death pension benefits are not met. 38 U.S.C.A. § 1541 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.262, 3.271, 3.272, 3.273 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). 38 C.F.R. § 3.261(a)(14) provides that survivor benefit plan (SBP) income under Public Law 92-425 is included for consideration as income for pension computation purposes. Income of a spouse will be determined under the rules applicable to income of a claimant. 38 C.F.R. § 3.262(b). Salary is not determined by "take home" pay, but includes deductions made under a retirement act or plan and amounts withheld by virtue of income tax laws. 38 C.F.R. § 3.262(a)(1). Unreimbursed medical expenses will be excluded when certain requirements are met. 38 C.F.R. § 3.271(g). Basic entitlement to such pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C.A. § 1521(a), (b) (West 2002); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21 (2014). The maximum annual pension rate is adjusted from year to year. If the appellant's income is less that the MAPR, VA will pay benefits to bring her income up to that level. For the year 2012, the MAPR for a surviving spouse without dependents was $8,219.00. See Survivor's Pension Rate Tables Appendix B, M21-1. According to the Defense and Finance Accounting Service (DFAS), the appellant was receiving a $766.00 monthly SBP annuity effective December 1, 2011. This amounted to $9,192.00 annually. This amount exceeds the 2012 MAPR of $8,219.00 for a surviving spouse with no dependents. The RO requested information from the appellant regarding unreimbursed medical expenses. However, no such information has been received. Based on the foregoing, the Board concludes that the appellant is not entitled to payment VA death pension benefits because her income exceeds the statutory limits for entitlement to death pension benefits. Therefore, her claim of entitlement to nonservice-connected death pension benefits must be denied. ORDER Entitlement to payment of nonservice-connected death pension benefits is denied. REMAND The Veteran died in June 2011. A certificate of death lists pneumonia as the cause of death. He was not service connected for any disability at the time of his death. There are outstanding treatment records that must be obtained. In a November 2011 correspondence, the appellant referenced medical treatment that the Veteran received in 1989 from the Veterans' Memorial Hospital in Manila. However, treatment records from that facility have not been associated with the claims file. VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). All relevant VA treatment records should be obtained and associated with the claims file. In addition, the appellant has stated that she has other unidentified "medical records." See January 2013 Correspondence. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and ask her to clarify the medical records referenced in the January 2013 correspondence. After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the appellant should be so notified so that she can make an attempt to obtain those records on her own behalf. 2. Obtain any treatment records from Veterans Memorial Hospital in Manila, the Philippines, from September 1989 to the present. If these records cannot be obtained, a notation to that effect should be inserted in the file. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. 3. Thereafter, readjudicate the claim of service connection for the cause of the Veteran's death. If the benefit sought remains denied, issue a supplemental statement of the case and provide the appellant the requisite period of time to respond. The case should then be returned to the Board for further appellate 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs