Citation Nr: 1631807 Decision Date: 08/10/16 Archive Date: 08/23/16 DOCKET NO. 13-24 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to nonservice-connected death pension benefits based on the need for aid and attendance (A&A) of a surviving spouse. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1942 to November 1945. He died in February 2010. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota, which, in pertinent part, found that the appellant's countable annual income exceeded the maximum annual pension rate (MAPR) set by law. The jurisdiction of the appeal has been transferred to the VA Regional Office (RO) in Oakland, California. The Appellant was scheduled to appear at a videoconference hearing in August 2016; however, in June 2016, the Appellant contacted VA to cancel her hearing request. Records in the Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed and considered. FINDINGS OF FACT 1. The appellant is the surviving spouse of a veteran who had qualifying wartime service; she is basically eligible for a rate of pension set by law, reduced by the amount of her countable income. 2. Throughout the applicable annualization period, the appellant was not confined to her home or the immediate premises and the need for regular A&A as defined in the Code of Federal Regulations was not demonstrated. 3. The appellant's countable annual income is greater than the applicable maximum annual pension rate (MAPR) for death pension benefits. CONCLUSION OF LAW The criteria for nonservice-connected death pension benefits have not been met. 38 U.S.C.A. §§ 1503, 1541 (West 2014); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.271, 3.272, 3.274 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). In this case, by means of a letter dated in April 2013, the appellant was notified of the PMC's determination that she had excessive income. That letter also notified her of how excessive income could affect her right to pension benefits and what information and evidence she needed to submit. The appellant was afforded an opportunity to provide information and evidence pertinent to the claim. After the claim was transferred to the RO, it was readjudicated in the Statement of the Case (SOC) issued in August 2013. Based on the notice given, as well as the statements from the appellant during the course of her appeal, the Board finds that a reasonable person would have known what evidence was needed in order to substantiate her claim. Moreover, the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, and she has not argued that she was prejudiced by any notice failure. Shinseki v. Sanders, 556 U.S. 396 (2009). VA must also make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Here, VA encouraged the appellant to provide the information necessary to assist her in substantiating her claim, to include VA Form 21-8416, "Medical Expense Report" and VA Form 21-0518-1 "Improved Pension Eligibility Verification Report (Surviving Spouse with No Children)." The record reflects that the appellant provided all the information she found relevant in support of her claim and neither she nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Thus, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis Death pension benefits are generally available for surviving spouses, as a result of the 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). The Board does not dispute that the Veteran served for at least 90 days during a period of war. Therefore, the dispositive question in this case is whether the appellant meets the specific income and net worth requirements for death pension eligibility. The maximum annual rate of improved pension for a surviving spouse is specified by statute and is increased periodically under 38 U.S.C.A. § 5312. See 38 C.F.R. § 3.23. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); see also 38 C.F.R. § 3.271(a). 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, 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); and medical expenses which have been paid in excess of five percent of the applicable maximum annual pension rate (MAPR). The MAPRs are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1 (M21-1) and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. Effective December 1, 2011 for the period until December 1, 2012, the maximum death pension amount for A&A without a dependent was $13,138. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B, Section A. During that same period, the MAPR for a surviving spouse not in need of aid and attendance and with no dependents was $8,219. 38 C.F.R. § 3.351 sets forth the criteria for determining whether increased pension is payable to a surviving spouse by reason of need for A&A, or if not in need of A&A, by reason of being housebound. The need for A&A means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria set forth in paragraph (c) of 38 C.F.R. § 3.351 are applied in determining whether such need exists. Paragraph (c) of Section 3.351 indicates that a surviving spouse will be considered in need of regular A&A if he or she is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; if the claimant is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid under the criteria set forth in 38 C.F.R. § 3.352(a). The following will be accorded consideration in determining the need for regular A&A: inability of claimant to dress or undress herself, or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid [this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.]; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. See 38 C.F.R. § 3.352(a). Although a claimant need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to A&A, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." See Turco v. Brown, 9 Vet. App. 222, 224 (1996). In this case, the appellant's claim was received on March 28, 2012. She indicated she was claiming death pension with A&A. She reported receiving $1,725 per month from military retirement and had an unreimbursed medical expense of $1,754 paid on March 1, 2012 to her daughter for "assisted living". She attached a copy of the check paid. In the Remarks section, she indicated her daughter took care of her and she paid her daughter $1,754 a month for "medical care." She attached a copy of a VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance dated March 15, 2012. The examination report indicated a diagnosis of knee osteoarthritis and revealed that the appellant needed assistance from her daughter getting in and out of the car and ambulating outside the home. The appellant required a cane for ambulation. The report also noted the appellant was able to feed herself and prepare her own meals. In addition, she did not need assistance in bathing and tending to other hygiene needs. The report also showed that she was not legally blind, did not require nursing home care and did not require medication management. No restrictions of the upper extremities or spine were noted. In an April 2013 letter from the PMC, the appellant's claim was denied because the appellant's countable income of $20,700.00 effective April 1, 2012 exceeded the maximum annual limit by law for death pension at the A&A rate. As mentioned, pursuant to the M21-1, the income limit at the A&A rate for a surviving spouse with no dependents was $13,138.00; the non-A&A rate was $8,219. The PMC declined to deduct the monthly payments to the appellant's daughter from the appellant's countable income because the evidence did not show the need for regular A&A as defined by VA regulations. Specifically, the appellant's daughter was not shown to be providing assistance with any activities of daily living or to be rendering nursing or medical services. The letter explained that per regulations, VA considers costs paid to an individual that provides custodial care only if that individual assists the person with two or more activities of daily living, such as bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. In addition, the letter indicated that if the appellant's circumstances should change that she should complete and return the enclosed VA Form 21-8416, "Medical Expense Report" and VA Form 21-0518-1 "Improved Pension Eligibility Verification Report (Surviving Spouse with No Children)." It was noted this information needed to be received no later than December 31, 2014 and that family medical expenses could be considered from March 28, 2012, the date of claim. The appellant filed a notice of disagreement in April 2013 stating that she had been paying her daughter for over a year to help her live and to take care of her activities of daily living. She attached a statement from her daughter describing the activities she helped with on a daily basis, to include bathing, dressing, doing laundry, cooking, cleaning, assisting her in the bathroom and providing transportation. Thereafter, the case was transferred to the RO. In the August 2013 statement of the case, the denial was continued with the advisement that the appellant needed to provide further information regarding what her daughter did to help her and how much she was paid. The RO referenced VA Forms 21-8416 and VA-0518-1. Along with her substantive appeal, received in August 2013, the appellant attached a Report of Medical, Legal, and Other Expenses Incident to Recovery for Injury or Death. She again reported paying $1,500 monthly to her daughter for "assisted living" and $104 monthly to Medicare. Upon review of the evidence of record, the Board finds that entitlement to death pension must be denied because the need for A&A has not been shown, the appellant's payments to her daughter for assistance cannot properly be deducted from her countable income and her countable income, even after deducting monthly payments to Medicare, exceeds the allowed annual income for qualification for death pension. Despite the daughter's statement regarding the type of assistance she provides her mother, the Board finds that the evidence fails to show that the appellant has a medical need for A&A. The examination in relation to determining what her needs were revealed only that she had trouble walking and her daughter helped her ambulate and to get in and out of the car. Pursuant to the Veteran Benefits Administration Manual M21-1, Part V, Subpart iii, Chapter 1, Section G, Topic 3(o), reasonable fees may be paid to an in-home attendant for a disabled person in need of A&A. This section indicates that the attendant does not have to be a licensed health professional when the disabled person is rated in need of A&A, or is not eligible to be rated in need of A&A and a licensed physician states that the person requires custodial care. If VA has not rated the disabled person as in need of A&A, or if there is no evidence of record that a licensed physician has stated that a person ineligible to be rated A&A requires an in-home care attendant, expenses paid to an in-home attendant can be allowed only if the attendant is a licensed heath professional. M21-1, Part V, Subpart iii, Chapter 1, Section G, Topic 3(p). For the purposes of the medical expense deduction, a licensed health professional refers to a person licensed to furnish health service by the state or county in which the services are provided. M21-1, Part V, Subpart iii, Chapter 1, Section G, Topic 3(g). The Board recognizes the appellant's daughter's contention that she is assisting her mother with activities of daily living; however, the Board finds the medical examiner's assessment of her actual abilities to be more probative as this assessment was made by a medical professional after an examination and interview with the appellant. The basic criteria necessary to show a need for regular A&A have not been met and the Board concludes that any monies paid by the appellant to her daughter cannot be considered unreimbursed medical expenses that can be deducted from her countable income. The Board recognizes that the appellant is of advanced age and that her daughter may be voluntarily assisting her mother and receiving payment for such assistance. However, the record does not reflect that a licensed physician has stated that the appellant requires custodial care. In addition, there is no evidence that the appellant's daughter is a licensed health professional. The appellant's stated annual income of $20,700 is in excess of the allowed annual income for qualification for death pension. When the monthly payments of $104 to Medicare are deducted, the appellant's countable income of $19,452 is still greater than the allowable amount. Given the above, the claim for death pension benefits must be denied. ORDER Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs