Citation Nr: 1520881 Decision Date: 05/15/15 Archive Date: 05/26/15 DOCKET NO. 10-46 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Pension Center in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to nonservice-connected death pension benefits. 2. Entitlement to nonservice-connected death pension benefits. 3. Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from February 1942 to October 1945. The Veteran passed away in October 2006, and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2007 and March 2010 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California and the Pension Management Center in St. Paul, Minnesota. The issue of entitlement to burial benefits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A March 2008 decision denied the appellant's claim for entitlement to nonservice-connected death pension benefits, and the appellant did not appeal that decision, nor was new and material evidence received within the one-year appeal period. 2. Evidence received since the March 2008 decision is new, relates to an unestablished fact necessary to establish the claim, and raises a reasonable possibility of substantiating the appellant's claim. 3. Throughout the period on appeal, the appellant's countable income, minus permitted exclusions, exceeded the maximum annual income allowed for receipt of nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to nonservice-connected death pension benefits is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 2. The appellant's annual countable income is a bar to receipt of nonservice-connected death pension benefits. 38 U.S.C.A. §§ 1521(j), 1522(a), 1541 (West 2002); 38 C.F.R. §§ 3.3(a) and (b)(4), 3.23, 3.271, 3.272, 3.274 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue of whether new and material evidence has been received to reopen the claim of entitlement to nonservice-connected death pension benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). This is so because the Board is taking action favorable to the appellant by reopening the claim. As such, this decision on that matter poses no risk of prejudice to the appellant. See Bernard v Brown, 4 Vet. App. 384 (1993). As to the reopened claim for death pension benefits, a letter dated in December 2009 satisfied the duty to notify provisions as to the claim for entitlement to nonservice-connected death pension benefits. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the appellant has also been satisfied in this case as to the reopened claim for death pension benefits. The RO obtained information regarding the appellant's disability benefits from the Social Security Administration (SSA), and the appellant confirmed that the information received was accurate. Although the RO requested that the appellant provide additional information regarding her income and expenses, the appellant has not responded to the RO's request. There is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). I. New and Material Evidence The appellant contends that VA has received new and material evidence sufficient to reopen her claim for entitlement to nonservice-connected death pension benefits. The Board agrees. Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2014). Reopening a claim which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2014). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The appellant's original claim for nonservice-connected death pension benefits was denied in March 2008 because the evidence did not show a final divorce decree from the Veteran's first wife; thus, the evidence did not show that the appellant qualified as the surviving spouse of the Veteran. Specifically, the appellant's claim indicated that the Veteran divorced his first wife in 1975; however, the evidence submitted showed only an annulment from his first wife in 1952 and a marriage certificate to the appellant dated in 1976. The March 2008 decision was not appealed, and the appellant did not submit documentation within the one-year period thereafter that would constitute new and material evidence for that claim. Thus, that decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). In order for the appellant's claim to be reopened, evidence must have been added to the record since the March 2008 rating decision addressing this basis. In September 2009, the appellant submitted a claim to reopen her claim for entitlement to nonservice-connected death pension benefits. In that regard, she provided a July 2010 statement certifying that she could "find no legal impediments" that would make her marriage to the Veteran "unlawful or invalid in any way." Additionally, she provided a copy of a final judgment of divorce between the Veteran and his first wife, dated in October 1964. Although the RO determined that new and material evidence was presented to reopen the claim of entitlement to nonservice-connected death pension benefits, the Board does not have jurisdiction to consider a claim which was previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 U.S.C.A. §§ 5108, 7104(b). Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. Since the March 2008 decision, pertinent evidence added to the claims file includes a July 2010 lay statement from the appellant and a copy of a final judgment of divorce for the Veteran and his first wife, dated in October 1964. The appellant's original claim for nonservice-connected death pension benefits was denied in March 2008 because the evidence did not show that she was the lawful surviving spouse of the Veteran. The evidence received since the March 2008 rating decision is new, because it was not of record at the time of the March 2008 rating decision. It is material because it establishes that the appellant is the lawful surviving spouse of the Veteran, which was the unestablished fact that served as the basis for the March 2008 denial of her claim. Accordingly, the evidence received since the March 2008 decision is new and material, and the claim for entitlement nonservice-connected death pension benefits is reopened. II. Nonservice-connected Death Pension Benefits - Reopened claim In the determination above, the Board has reopened the claim for nonservice-connected death pension benefits. As the RO reopened and considered the claim de novo in its March 2010 decision, the Board may proceed with de novo adjudication of the reopened claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Death pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a). An appellant is entitled to such benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if the veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the claimant meets specific income and net worth requirements. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4), 3.274. In this case, the Veteran had qualifying service of 90 days during a period of war, as he served from February 1942 through October 1945, during World War II. The evidence also establishes that the appellant is the Veteran's surviving spouse. A "surviving spouse" is defined as a person who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50 (2014). To qualify as a surviving spouse, the person's marriage to the veteran must meet the requirements of either 38 C.F.R. § 3.1(j) or 38 C.F.R. § 3.52. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.1(j), a marriage is defined as "a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued." 38 C.F.R. § 3.1(j); see 38 U.S.C. § 103(c). As discussed above, the appellant has submitted proof that the Veteran's marriage to his first wife ended in divorce in October 1964, and that the appellant was lawfully married to the Veteran in July 1976. Accordingly, the appellant qualifies as the "surviving spouse" of the Veteran at the time of his death. The last element to determine entitlement to nonservice-connected death pension benefits is whether the appellant's net worth and/or annual income amounts make her ineligible for the claimed benefits. In order to receive benefits, a claimant must meet the net worth requirements found in 38 C.F.R. § 3.274 and not have an annual income in excess of the maximum annual pension rate (MAPR) as specified in 38 C.F.R. § 3.23. See 38 U.S.C.A. §§ 1502, 1521(j); 38 C.F.R. §§ 3.3(a), 3.23, 3.274. In determining annual income, all payments of any kind or from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 C.F.R. § 3.271(a). Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1). 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)(1), (3). Social Security benefits are not specifically excluded under 38 C.F.R. § 3.272; such income is therefore included as countable income. The following are excluded from countable income for the purpose of determining entitlement to pension: welfare; maintenance; VA pension benefits; payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); medical expenses that are in excess of five percent of the MAPR; expenses of last illnesses, burials and just debts, and various other inapplicable items. 38 C.F.R. § 3.272. "Reasonable Maintenance" includes not only housing, food, clothing, and medical care sufficient to sustain life, but such items beyond the bare necessities as well as other requirements reasonably necessary to provide those conveniences and comforts of living suitable to and consistent with a reasonable mode of life. See 38 C.F.R. § 3.250(b)(1). The MAPR is published in the Compensation and Pension Service's manual, M21-MR, Part V, Subpart iii, Chapter 1, Section E, Paragraph 29, and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21 (2014). In the present case, the MAPR for an otherwise eligible claimant, without a dependent child, for 2009, the year during which the appellant filed her claim to reopen, is $7,933.00. Effective December 1, 2011, the MAPR for an eligible claimant without a dependent child was raised to $8,219.00. On December 1, 2012, the MAPR was raised to $8,359.00, and on December 1, 2013, it was raised to $8,485.00. The appellant has not provided a clear statement regarding her current income and expenses. In her December 2006 claim, she reported cash in the amount of $5.00, and no income or assets. The only expenses that she noted were related to her husband's medical and final expenses, which ceased in 2006. Information from the SSA reveals that the appellant began receiving SSA disability income in October 2006. The SSA reported that she received monthly income in the amount of $862.00 in 2006; $890.50 per month beginning December 1, 2006; $910.40 per month beginning December 1, 2007; $963.40 per month beginning December 1, 2008; $963.50 per month beginning December 1, 2009; and $997.90 beginning December 1, 2011. The SSA report also reflects that Medicare Part B premiums in the amount of $96.50 were deducted from the appellant's monthly SSA benefits. Thus, based upon SSA income, the appellant received well over $11,000.00 per year beginning in 2009, which places her income in excess of the MAPR for that year ($7,933.00), and each year thereafter. Although certain expenses may be used to reduce the income considered for eligibility for nonservice-connected death pension benefits, the appellant has not reported any expenses. Toward that end, the RO requested that she provide information regarding her income and expenses in a December 2009 letter; however, the appellant did not respond to the RO's request. Moreover, a December 2011 report of contact indicates that the RO called the appellant to clarify her income, and that she acknowledged that the SSA income described by the RO was accurate. She stated that the only expenses that she incurred were Medicare Part B Premiums and she noted that she had no net worth. Accordingly, as the appellant's reported income is in excess of the MAPR each year since she filed her claim to reopen the issue of entitlement to nonservice-connected death pension benefits in 2009, the Board finds that the appellant's income is a bar to VA nonservice-connected death pension benefits. The Board recognizes the appellant's belief that she needs and is entitled to death pension benefits; however, there is no interpretation of the facts of this case which will support a legal basis for a favorable action with regard to the appellant's claim. The appellant's countable income exceeds the MAPR for the 2009 year, and each year since then. Thus, the application of the principle of reasonable doubt is not appropriate in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). ORDER New and material evidence having been received, the claim to reopen the issue of entitlement to nonservice-connected death pension benefits is granted, and to that extent only, the appeal is granted. Entitlement to nonservice-connected death pension benefits is denied. REMAND In a January 2007 decision, the RO awarded burial benefits in the amount of $300.00, which were paid to the administrator of the cemetery in which the Veteran was buried. However, later in January 2007, the appellant submitted a notice of disagreement to the RO's January 2007 decision, arguing that the benefits should have been awarded to her to help pay for the funeral services. The RO has not addressed the appellant's arguments or issued a statement of the case (SOC) in response to her notice of disagreement. Under these circumstances, a remand is necessary for the issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Provide the appellant and her representative with a statement of the case that addresses the issue of entitlement to burial benefits. The RO should return this issue to the Board only if the appellant timely files a substantive appeal. 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 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs