Citation Nr: 1516915 Decision Date: 04/20/15 Archive Date: 04/24/15 DOCKET NO. 14-40 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for cause of death, to include entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. 2. Entitlement to death pension benefits. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from October 1940 to May 1945, and his decorations included the Purple Heart Medal and the Bronze Star Medal. He died in January 2014, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 decision of the Pension Management Center (PMC) that denied the appellant's claim for death benefits, including DIC based on 38 U.S.C.A. § 1318 (total rating) and § 1310 (cause of death), death pension, and accrued benefits. The September 2014 statement of the case addressed all of these issues. In her substantive appeal, she said she was limiting her appeal to the specific listed issues; however, the listed issues were not clearly set forth, except that she claimed entitlement to a death pension. However, she also said that "you tell me a veteran has to die in service for me to get widows pension," indicating that an appeal as to the DIC claims, which require some connection to service, cannot be ruled out. She did not, however, provide any statement that could be construed as appealing the accrued benefits claim. Therefore, the Board finds that the issues listed on the title page of this decision are properly before the Board at this time This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The record reflects that the Veteran died in January 2014 as the result rectal adenocarcinoma, with hypertension, diabetes mellitus, hyperlipidemia, and dementia as contributory causes of death. 2. At the time of his death, service connection was in effect for injury to the left thigh, Muscle Group XIV, rated 40 percent disabling; injury to the left forearm, Muscle Group VII, rating 30 percent disabling; sacroiliac injury and weakness, rated 20 percent disabling; acquired flatfoot, rated 10 percent disabling; tinnitus, rated 10 percent disabling; left thigh scar, rated 10 percent disabling; and left forearm scar, rated 10 percent disabling. His combined disability rating was 80 percent, and he was in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) effective from August 23, 2010. 3. There is no indication of rectal adenocarcinoma, with hypertension, diabetes mellitus, hyperlipidemia, or dementia in service, or within a year thereafter. 4. The appellant has not alleged that any rating decision during the Veteran's lifetime was clearly and unmistakably erroneous, nor has she submitted relevant, previously unavailable service department evidence, which would establish that the Veteran was entitled to receive a total disability rating, due to service-connected disability, for 10 years prior to his death. 5. The appellant's countable income substantially exceeds the maximum countable income allowable for death pension benefits. CONCLUSIONS OF LAW 1. A service-connected disability did not cause or contribute to the Veteran's death. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2014). 2. The criteria for entitlement to DIC based on receipt of, or entitlement to receipt of, total compensation prior to the Veteran's death have not been met. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. §§ 3.22 (2014). 3. The criteria for death pension benefits are not met. 38 U.S.C.A. §§ 1541, 1543 (West 2014); 38 C.F.R. § 3.23, 3.271, 3.272 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the appellant was provided the relevant notice and information concerning entitlement to death benefits in a January 2014 letter. More complete information was provided in a July 2014 letter, including an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected and based on service-connected disabilities. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). She was provided with information regarding effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The appellant has not alleged any notice deficiency during the processing and adjudication of this claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Available service department records have been obtained, as has the Veteran's death certificate and identified. Confirmation of the appellant's receipt of Social Security Administration (SSA) benefits has been received. The appellant states that she does not have any additional records, and she has not identified any other potentially relevant information or evidence. A VA nexus opinion is not warranted because, as discussed below, there is no evidence that an event, injury, or disease occurred in service or during an applicable presumptive period for which the Veteran qualifies, or a credible indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Entitlement to DIC After the Veteran's death, the appellant's initial claim for death benefits was received on a VA Form 21-534, which includes claims for death pension, DIC and accrued benefits. In a letter dated in February 2014, the appellant was informed that these claims had been denied. She was furnished a statement of the case which addressed the DIC issues and death pension. In her substantive appeal, she indicated that she was appealing only the listed issues; although she referred to death "pension," as noted above, she made a brief comment indicating she believed that death had to have occurred in service for her to be entitled to death "pension." Therefore, the Board finds that the issue of entitlement to DIC is also on appeal, as it appears that the appellant is referring to any VA death benefit as "pension." DIC may be granted when a service-connected disability, or disability incurred in or aggravated by service, was the principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. DIC may also be granted if, at the time of death, the Veteran was receiving, or entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death, or for lesser periods of time for a Veteran who died less than ten years after release from active duty or who was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). According to the death certificate, the Veteran died in January 2014, at the age of 96 years, in a VA medical center (VAMC). The immediate cause of death was rectal adenocarcinoma, with hypertension, diabetes mellitus, hyperlipidemia, and dementia listed as contributory causes of death. At the time of his death, service connection was in effect for injury to the left thigh, Muscle Group XIV, rated 40 percent disabling; injury to the left forearm, Muscle Group VII, rating 30 percent disabling; sacroiliac injury and weakness, rated 20 percent disabling; acquired flatfoot, rated 10 percent disabling; tinnitus, rated 10 percent disabling; left thigh scar, rated 10 percent disabling; and left forearm scar, rated 10 percent disabling. His combined disability rating was 80 percent, and he was in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) effective from August 23, 2010. Service treatment records do not show any indication of rectal adenocarcinoma, with hypertension, diabetes mellitus, hyperlipidemia, or dementia in service, nor has the appellant contended that the Veteran's death was due to service, or to service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In general, a surviving spouse may establish entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 where it is shown that the Veteran's death was not the result of his or her own willful misconduct and, at the time of death, the Veteran was receiving, or entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). Here, the Veteran was in receipt of a total rating at the time of his death, but the total rating had only been in effect for approximately 3 1/2 years when he passed away in January 2014. Where a Veteran filed a claim for disability compensation during his or her lifetime, the Veteran may be "entitled to receive" compensation for total disability for the requisite time period, in certain limited circumstances. 38 C.F.R. § 3.22(b). The first of these is if the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the requisite time period, but for a clear and unmistakable error (CUE) by VA in a decision on a claim filed during the Veteran's lifetime. 38 C.F.R. § 3.22(b)(1). The appellant has not alleged CUE in the September 2011 decision granting a TDIU rating, effective in August 2010, or in any other decision entered during the Veteran's lifetime. The other basis for finding that a Veteran was "entitled to receive" compensation is where there is additional evidence submitted to VA before or after the Veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, and which provides a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively. 38 C.F.R. § 3.22(b)(2). No additional service department records have been found in this case. Accordingly, there is no basis on which to grant the appellant's claim for entitlement to DIC benefits, either based on service connection for the cause of the veteran's death, or based on entitlement to receive compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death. See 38 U.S.C.A. §§ 1310, 1318. Based on the application of the law to the undisputed facts, the claim must be denied. Accordingly, the benefit-of-the-doubt does not apply. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Entitlement to Death Pension Benefits The appellant is the surviving spouse of a veteran who had qualifying wartime service. As such, she is basically eligible for 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 the surviving spouse of a Veteran who gave 5 years of his life to the military, she is entitled to death pension benefits. She also claims financial hardship. However, unlike DIC, discussed above, death pension benefits may only be paid if the appellant's income is below a certain amount, called the "maximum rate." See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. This is the amount of pension she would be entitled to if she did not have any income at all. If she has income, but it is less than this maximum amount, this income will be subtracted from the amount of pension she receives. In other words, for every dollar of income she receives, the pension is reduced by that amount. If, however, her income is higher than the "maximum rate," she is not entitled to any pension. 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. SSA benefits and income yielded from stocks and bonds are not excluded. Her reported income substantially exceeds the maximum amount of VA death pension to which she could be entitled. Although prior to the Veteran's death, the appellant's monthly SSA benefit was approximately $725 per month, information received from SSA reflects that her monthly benefit was increased to $2,000 per month beginning in January 2014, which is $24,000 per year. In contrast, according to the VA's Survivors Benefits Tables, the maximum rate for death pension for a surviving spouse with no dependents for the same time period is $8,485 per year, or about $707 per month. As can be seen, the amount of her SSA, alone, per year exceeds the maximum annual pension rate by $15,515. This calculation does not include the additional $908 per month that she reported receiving from investments (stocks and bonds), which yields an additional $10,896 per year. Thus, her annual income exceeds the maximum rate of pension by $26,411. If certain conditions are met, unreimbursed medical expenses paid by the appellant may be excluded from income, i.e., subtracted from her income. The medical expenses must exceed 5 percent of the maximum rate ($424 effective in December 2013), and must be deducted, or subtracted, from income during the time period in which they were paid. In addition, they must be out-of-pocket expenses, for which the claimant received no reimbursement from any third party. In other words, the claimant did not get paid back by anyone or an insurance company for these expenses. The appellant also claims reimbursement for mileage driving back and forth to the VA hospital during the last two years of the Veteran's life. Such expenses related to the Veteran's last illness may also be deducted from income. 38 C.F.R. § 3.272(h). Moreover, because medical expenses are deducted from the appellant's income, in order for her to be entitled to any pension on this basis, paid medical expenses must be greater than the break-even point, i.e., the difference between her income and the "maximum rate," and even then she would only get paid the amount over that. Thus, based on the above information, her out-of-pocket medical expenses (including Medicare and other health insurance premiums) and mileage expenses would have to exceed $26,835 (including the $424 "deductible"), just to get a single dollar of VA death pension. If the appellant's income ever falls below the maximum rate, based on loss of income, or on paid, unreimbursed, medical expenses (most of which may be deducted from income), or both, she is free to reopen her claim. It should be stressed, however, that even in those circumstances, death pension will be denied when the corpus of the estate (i.e., net worth) of the surviving spouse is such that under all the circumstances, including consideration of the annual income of the surviving spouse, it is reasonable that some part of the corpus of such estate be consumed for her maintenance. 38 U.S.C.A. § 1543(a); 38 C.F.R. § 3.274(a). As it stands now, however, there is no basis on which to grant the appellant's claim for death pension benefits. As can be seen, death pension is designed to provide qualifying low income claimants with a minimum level of income, and the amount is set by law. 38 U.S.C.A. § 1541. The Board is constrained to follow the 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). Based on the evidence of record, the appellant's income is substantially above the maximum allowable for death pension benefit purposes. In these circumstances, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to DIC is denied. Entitlement to death pension is denied. ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs