Citation Nr: 1740134 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 14-09 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) benefits based on the need for regular aid and attendance of another person, or on account of housebound status. 2. Entitlement to nonservice-connected death pension. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active military service from August 1951 to October 1953. He died in June 1990. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, which denied the above-listed benefits. The Board previously remanded the matter in December 2014 because the appellant was not provided a statement of the case (SOC) for the nonservice-connected death pension issue in response to her timely notice of disagreement (NOD). That SOC was issued in May 2015. In response, the appellant filed a VA Form 9 substantive appeal in August 2015. In October 2015, she was notified that her substantive appeal was not timely. However, the RO subsequently issued a March 2016 supplemental SOC, and a written statement from the appellant received that same month was accepted as a substantive appeal in lieu of a VA Form 9. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The appellant's conditions do not render her helpless or so nearly helpless that she is housebound or requires the regular aid and attendance of another person. 2. The appellant's countable income exceeds the maximum countable income allowable for death pension benefits. CONCLUSIONS OF LAW 1. The criteria for DIC benefits for a surviving spouse based upon the need for regular aid and attendance of another person are not met. 38 U.S.C.A. §§ 1502, 1521 (West 2014); 38 C.F.R. §§ 3.351, 3.352 (2016). 2. The criteria for death pension benefits are not met. 38 U.S.C.A. §§ 1541, 1543 (West 2016); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Historically, the appellant received nonservice-connected death pension benefits following the Veteran's death in June 1990. Therefore, she meets the basic criteria for eligibility. However, 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. Her death pension benefits were discontinued in March 1991 when her income was found to have exceeded this maximum rate. She now requests that VA resume pension payments. The appellant has asserted that she is in need of the aid and attendance of another, or alternatively, that she is housebound. The maximum rate differs depending on whether the appellant meets the criteria for requiring aid and attendance or for being housebound. Aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). To establish a need for regular aid and attendance, the surviving spouse must (1) be blind or 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 five degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C.A. § 1502(b); 38 C.F.R. §§ 3.351(c). Determinations as to a factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the inability to dress and undress, the inability to keep ordinarily clean and presentable, the inability to feed oneself through loss of coordination of the upper extremities or through extreme weakness, or the inability to attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). Bedridden is defined as a condition that, through its essential character, actually requires that the appellant remain in bed. The fact that an appellant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). The evidence need only establish that the appellant is so helpless as to need regular aid and attendance, not constant need. The appellant must be unable to perform one of the enumerated personal functions, but her condition does not have to manifest in an inability to perform all the enumerated personal functions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). For a surviving spouse in receipt of death pension, the permanently housebound requirement is met when the surviving spouse is substantially confined to his or her home or immediate premises by reason of disability or disabilities which are reasonably certain will remain throughout the surviving spouse's lifetime. 38 C.F.R. § 3.351 (f). The appellant submitted a March 2017 examination report from her own physician which noted diagnoses of coronary artery disease, peptic ulcer disease, high blood pressure, scoliosis, osteopenia, and other conditions. However, this report indicates the appellant is not confined to bed. She is able to feed herself, prepare her own meals, and manage her financial affairs. She does not need assistance with bathing or hygiene needs, is not legally blind, and does not require nursing home care or medication management. She requires no aids for locomotion. She was able to leave home to go to appointments and the supermarket. In sum, while the appellant experiences some impairment due to her various medical conditions, the March 2017 report indicates she does not meet the criteria for requiring aid and attendance or being housebound. Having established that the appellant is not entitled to the higher maximum rate for aid and attendance or housebound status, she qualifies for the maximum pension rate of a surviving spouse without dependent children. See 38 U.S.C.A. § 1541(b). In 2012, that rate was $8,359.00. By 2016, that rate increased to $8,656.00. 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. The record shows the appellant has had a monthly $627.00 pension income throughout the appeal period, or $7,524.00 annually. She has also had monthly Social Security Administration (SSA) income of $377.83 in 2012, which equates to $4,534.00 annually, bringing her total 2012 income to $12,058.00. In 2016, her monthly SSA income was $396.90, which equates to $4,763.00 annually, bringing her total 2016 income to $12,287.00. Unreimbursed medical expenses paid by the appellant are excluded from income, if they exceed 5 percent of the maximum rate. 38 C.F.R. § 3.272(g). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. Id. In her April 2012 claim, the appellant listed a number of different expenses. However, these were for the 2011 calendar year, and are not applicable to her current claim. The record does not reflect any claimed expenses for 2012, 2013, 2014, or 2015. For 2016, the appellant reported $1,259.00 paid for Medicare and $2,400.00 paid for medicines. See March 2017 Medical Expense Report. Combined, these total $3,659.00. Only medical expenses in excess of 5 percent of the maximum rate may be excluded from income. Here, the maximum rate for 2016 is $8,656.00, and 5 percent of that value is $432.00. By subtracting $432.00 from $3,659.00, the total deductible expense is $3,227.00. As noted above, total income for 2016 was $12,287.00. By subtracting the total deductible expense of $3,227.00, the remaining total is $9,060.00. Unfortunately, this amount still exceeds the maximum 2016 rate of $8,656.00. Therefore, a nonservice-connected death pension cannot be paid at this time. Notably, the appellant identified an additional $12,000.00 paid towards in-home caregiver expenses for 2016. In cases such as this, where VA has not rated the appellant as entitled to aid and attendance or housebound status, expenses paid to an in-home attendant are deducted only if the attendant is a licensed health professional. See VA Manual M21-1 V.iii.1.G.3.p. In this case, the March 2017 Medical Expense Report does not state that the appellant paid in-home caregiver expenses to a licensed health professional. Even if she did pay a licensed professional, VA requires documentation of the caregiver expense in the form of a receipt bill, statement on the provider's letterhead, a computer summary, or other form which specifies the amount paid, date of payment, purpose of payment, and other information. M21-1 V.iii.1.G.3.q. No such documentation has been presented in this case. Therefore, the appellant's claimed caregiver expenses cannot be excluded from her income, and death pension benefits are not warranted. If the appellant's income ever falls below the maximum rate, based on loss of income, unreimbursed medical expenses, or both, she is free to reopen her claim. 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). ORDER Entitlement to a nonservice-connected death pension is denied. Entitlement to DIC benefits based on the need for regular aid and attendance of another person, or on account of housebound status, is denied. ____________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs