Citation Nr: 1622714 Decision Date: 06/07/16 Archive Date: 06/21/16 DOCKET NO. 12-23 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin THE ISSUE Entitlement to death pension (survivor's pension), to include with special monthly pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from September 1954 to September 1957. He died in August 1990. The appellant is the Veteran's widow, and is seeking to establish eligibility for VA death pension benefits as the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant is seeking to establish entitlement to death pension benefits. 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 these 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 that would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. 38 U.S.C.A. § 1541(a); 38 C.F.R. § 3.3(b)(4). The record reflects that the Veteran served on active duty for more than 90 days during the Korean War period; therefore, death pension benefits would be warranted if the Veteran's spouse meets the income threshold requirements (as explained below). A surviving spouse who meets the above-referenced requirements will be paid the maximum rate of death pension, reduced by the amount of countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. An additional amount is paid to a surviving spouse in need of aid and attendance. 38 C.F.R. § 3.23(a)(6). In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. The Maximum Annual Pension Rates (MAPR) are specified in 38 U.S.C.A. §§ 1521 and 1542, as increased from time to time under 38 U.S.C.A. § 5312. The rates of death pension benefits are published in tabular form in Appendix B of Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in Title 38 of the Code of Federal Regulations. 38 C.F.R. § 3.21. Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA 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); and medical expenses which have been paid (in excess of five percent of the MAPR). Income from Social Security Administration (SSA) disability benefits is not specifically excluded under 38 C.F.R. § 3.272; therefore, such benefits are included as countable income. Medical expenses in excess of five percent of the maximum annual pension rate, which have been paid, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(iii) (pertaining specifically to the unreimbursed medical expenses for a surviving spouse). The Board briefly notes that the MAPRs for a surviving spouse, including the rates applicable in the past years pertinent to this appeal, are published and available on VA's website (www.benefits.va.gov/pension/current_rates_survivor_pen.asp). The appellant filed the claim on appeal in April 2010. During the pendency of her appeal, the AOJ has considered not only her potential entitlement at the time of the original claim, but also any potential entitlement that may have arisen in the subsequent years the claim has remained pending. In July 2015, the AOJ sent a letter to the appellant requesting that she complete Eligibility Verification Reports (EVRs) and VA Form 21-P-8416 Medical Expense Reports (MERs) for the periods of (as stated in the request letter) April 2, 2010, through April 30, 2011; January 1, 2011 through December 31, 2011; January 1, 2012 through December 31, 2012; January 1, 2013 through December 31, 2013; January 1, 2014 through December 31, 2014; and January 1, 2015 through December 31, 2015. The appellant timely submitted the requested forms in August 2015. The AOJ issued a Supplemental Statement of the Case (SSOC) in August 2015 that shows the AOJ's calculations regarding the appellant's income and allowable medical expenses to determine her income for VA pension eligibility purposes specifically for the earliest period corresponding to the appellant's April 2010 claim. The August 2015 SSOC does not provide any detailed calculations concerning the subsequent periods (in 2011, 2012, 2013, 2014, 2015) for which the appellant submitted the requested financial information; the SSOC simply states: "We reviewed your subsequent periods for possible entitlement, but there was no evidence showing your income was under the income limit in any period." Notably, the August 2015 SSOC indicates that the AOJ was somewhat uncertain as to how to interpret some of the pertinent information submitted by the appellant, and requested that the appellant provide clarification. In this regard, the SSOC remarks: "It is noted that you did not originally report your other retirement benefits on your April 13, 2010 application. If you did not start receiving these benefits until a later date, please provide us with evidence showing when you began receiving the other retirement income." The appellant replied with the requested clarification in September 2015 with a written statement explaining: "I worked []as a dishwasher for Anderson community schools, the $8,866 is income from Working!! NOT A RETIREMENT [Emphasis in original]." Significantly, she explains that she no longer receives this income: "This [h]as gone away since I cannot work after complete right shoulder replacement. I am 76 years old." It notable that the August 2015 SSOC's calculation of the pertinent income figures (for the only period for which such calculations are presented) shows that the AOJ concluded that the appellant's income was $17,920 for VA purposes and that this exceeded "the income limit for a surviving spouse entitled to special monthly pension at the aid and attendance rate ... [of] $12, 681.00." The appellant's September 2015 statement points out that, using the AOJ's own figures presented on the SSOC, her countable income would fall significantly beneath the $12, 681.00 threshold if the calculation were to exclude the $8,866 the appellant has stated that she does not receive (the figure that the AOJ characterized as "Annualized other retirement" in the SSOC). It is important to note that the AOJ used the MAPR for one particular year applicable to special monthly pension for widows in need of aid and attendance, while clarifying in the SSOC that "we used the higher income limit for a widow entitled to special monthly pension at the aid and attendance rate, but we have not made a formal decision on your entitlement to this additional benefit...." If the appellant's calculated income for VA pension eligibility purposes were to be found to be lower than this applied threshold, a determination of her eligibility for the aid and attendance rate would become necessary. The Board's review of the income information submitted by the appellant reveals that she identified her income from Anderson Community Schools (the Board presumes that the "Other" income labeled "ACSC" corresponds to the Anderson Community Schools employment she described in her September 2015 statement). Although not entirely clear, it appears that the appellant reported approximately $8,900 of income from this source for each year-long period reported prior to 2014, then reported $9,566 for 2014, and then significantly reported no income from this source for 2015 ("$0"). The Board finds it reasonable to interpret this information as corresponding to the appellant's September 2015 explanation that she had been previously earning wages from employment at Anderson Community Schools, but was now no longer receiving that income. In brief, the available information of record suggests that the appellant's income beginning in 2015 was significantly lower than in prior years such that it may have become lower than applicable MAPR thresholds. It appears that the pertinent income determination calculation for 2015 may be substantially different than the calculation for prior years. However, the August 2015 SSOC did not discuss the information presented regarding 2015 income and does not appear to have considered the difference in the lower reported income for 2015 relative to the prior years. No subsequent SSOC was issued to consider and address the new and clarifying information presented by the appellant (replying to the AOJ's request for such clarification), and the Board finds that a new SSOC to address the pertinent clarified information presented by the appellant would have been appropriate and important in this adjudication. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his/her claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or in an SSOC, it must prepare an SSOC reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, an SSOC must be furnished to the claimant, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or is not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). The Board finds that a remand is appropriate at this time for the purpose of affording the appellant full consideration of her clarified income information by the AOJ, including a detailed accounting of the AOJ's income determination calculations for each year for consideration (with particular attention to 2015, as discussed above) and including consideration of the clarifying information submitted by the appellant in September 2015. In the event that the AOJ determines that the appellant's income for VA pension eligibility purposes fell beneath the applied MAPR for a widow requiring aid and attendance, the AOJ shall have the opportunity to complete all necessary development for a determination as to whether the appellant is otherwise eligible to the rate corresponding to that status. The Board additionally notes that it appears that the appellant may have been confused by some of the instructions for filling out the income and expense inquiry forms she has submitted to VA, including with reference to the fact that it appears that she has reported some annual incomes in spaces intended for monthly income figures. It is not clear whether this confusion has significantly impaired the AOJ's review of the information, but it is noted that if further clarification from the appellant is necessary that the AOJ shall have the opportunity to request such clarification from the appellant during the processing of this remand. Furthermore, as it is 2016 as of the time of this writing, the AOJ shall have the opportunity to request that the appellant provide any new pertinent income and expense information for the latest year that may substantiate her eligibility for the benefit sought. On remand, the AOJ should also prepare a clear and detailed accounting of how it calculated the appellant's income for VA pension eligibility purposes, including the precise amount of any income and expenses counted for each year under consideration (2010-2016). 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). Expedited handling is requested.) 1. The AOJ must provide the appellant with a clear, specific accounting of the income and expenses that were considered in the calculation of her income of VA pension eligibility purposes, including the precise amount of any income and expenses counted for each year under consideration (2010-2016). This accounting should specifically note the clarification of income presented in the appellant's September 2015 statement and the information she previously presented (including in her August 2015 EVRs) indicating that she received significantly less income in 2015 than in prior years. The AOJ shall have the opportunity to request any additional pertinent clarification or information required of the appellant, to include pertinent income and expense information for the year 2016. In the event that the AOJ determines that the appellant's income for VA pension eligibility purposes fell beneath the applied MAPR for a widow requiring aid and attendance, the AOJ shall have the opportunity to complete all necessary development for a determination as to whether the appellant is otherwise eligible to the rate corresponding to that status. 2. After completion of the above and any further development deemed necessary by the AOJ, the issues on appeal should be readjudicated. The appellant and her representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate 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 2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).