Citation Nr: 1802219 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-07 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to Improved Death Pension survivor's benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran had service from July 1966 to July 1969. He died in January 2013. The appellant claims benefits as his helpless child. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. The claim has since been transferred to the Regional Office in Houston, Texas. The appellant requested a travel Board hearing, but prior to the scheduled hearing the Board received a proper notice of withdrawal from the appellant in January 2015. FINDINGS OF FACT 1. The appellant is the Veteran's son. He was born in December 1971; thus, he attained the age of 18 in December 1989. 2. The preponderance of the evidence is against a finding that the appellant was permanently incapable of self-support prior to the age of 18. 3. Based on the information provided, the appellant's countable income during the period on appeal exceeded the maximum annual pension rate for a "helpless child." CONCLUSION OF LAW The criteria for death pension benefits are not met. 38 U.S.C. §§ 1541, 1543 (2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Death Pension Benefits The appellant contends that he is entitled to death pension benefits by his status as a helpless child. The appellant specifically did not claim service connection for cause of death. See VA Form 21-534, received December 9, 2011. Furthermore, the Veteran did not die while in service and he was not service-connected for any disability prior to his death. See Death Certificate, received February 4, 2014. As a result, dependency and indemnity compensation is not available. The appellant also only appealed the issue of death pension benefits. See November 2013 Statement of the Case, and VA Form 9, received January 22, 2014 and February 24, 2014. Death pension is a benefit payable to a veteran's surviving child because of the veteran's nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse or child meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4); 3.23, 3.24. "Helpless Child" Status Generally, an individual is a child of a veteran if he is the biological or adopted child or stepchild of the veteran, and is an unmarried person who either: is (1) under the age of 18; (2) "shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years;" or (3) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years), is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57, 3.356; Dobson v. Brown, 4 Vet. App. 443, 445 (1993). The issue is one of fact premised on competent evidence in the individual case. Bledsoe v. Derwinski, 1 Vet. App. 32, 33 (1990). The appellant's birth certificate shows that he was born in December 1971. His claim was filed in December 2011; therefore, he was over 23 years of age at the time of filing. Accordingly, the appellant may be considered as the child of the Veteran for VA purposes only if he is "shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years." The appropriate standard is that the evidence must show that the child does not have the capacity for self-support. See Bledsoe v. Derwinski, 1 Vet. App. 32 (1990). An adjudicatory body's focus in such cases must be on the claimant's condition at the time of his or her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Initially, VA must determine whether the evidence shows the child to have been incapable of self-support as of his or her 18th birthday. Id. If so, the second part of the two-part test requires consideration of evidence as to the current condition of the child. Id. Under 38 C.F.R. § 3.356(b), rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through his own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for the rating agency to determine based on competent evidence of record in each individual case. Rating criteria applicable to disabled veterans are not considered controlling. The principal factors for consideration are: 1) Evidence that a claimant is earning his own support is prima facie evidence that he is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child, by his own efforts, is provided with sufficient income for his reasonable support; 2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his condition was such that he was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established; 3) Employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases, it should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child that would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends; and 4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. 38 C.F.R. § 3.356(b). The appellant has stated that his disability is due to low vision/blindness. Social Security Administration (SSA) records confirm that the appellant became eligible to received disability benefits on October 1, 1992, at the age of 23. In his January 2014 substantive appeal, the appellant stated that he has a "significant amount of blindness, "but not to the degree that [he] had when [he] was a child." He explained that he currently needs another person's assistance with driving him to work, preparing meals, and other daily activities. He said that he lives by himself and is not able to remain financially stable on Social Security benefits alone. Yet, the appellant indicated that the additional money he earns from working at Walmart does help him stay financially capable of taking care of himself. He also expressed his belief that this job "may go away as [his] sight gets worse and [he is no longer] able to do [his] duties." However, the evidence of record does not show that his vision disability has become worse. Based on a review of the evidence, the Board concludes that the appellant is not entitled to death pension benefits. As noted above, he was over the age of 23 when he filed this claim. The relevant evidence of record does not show that the appellant was permanently incapable of self-support by reason of mental or physical defect before he attained the age of 18 years in December 1989. According to Social Security records, the appellant's physical defect did not affect his ability to provide self-support until he was 23 years old. Further, the Board finds that the preponderance of the evidence does not support a finding that the appellant was incapable of self-support as of his 18th birthday. Income Status The maximum annual rate of improved pension for a child is specified by statute and is increased from time to time under 38 U.S.C. § 5312. 38 C.F.R. § 3.24. Furthermore, 38 U.S.C. § 5312 provides that the pension rate is increased by the same percentage increase as benefit amounts payable under title II of the Social Security Act. The appellant's informal claim was received in November 2011 and his formal claim was received in December 2011. The rates of pension benefits for the relevant time period were published in tabular form in Appendix B of the Veterans Benefits Administration Manual 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 (2017). Effective from December 1, 2009, the maximum annual pension rate for a child was $2,020. This amount remained in effect until December 1, 2011, when the maximum annual pension rate increased to $2,093. Effective December 1, 2012, the maximum annual pension rate was increased to $2,129. Effective December 1, 2013, the maximum annual pension rate was increased to $2,161. Regarding whether the income limits are satisfied, the law provides that payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271. Recurring income means income that is received or anticipated in equal amounts and at regular intervals and which will continue throughout an entire 12-month annualization period. 38 C.F.R. § 3.271(a)(1). The appellant's December 2011 application for death pension benefits by a surviving child showed that he received $1,043.00 per month for Social Security disability and earned $1,000.00 per month from working at Walmart. Social Security records confirm that the appellant became disabled on October 1, 1992, at the age of 23. These records also show that the Veteran received $1,214.90 for the month of December 2011, $1,243.90 for January 2012, and $1,264.90 for December 2012. As of January 2013, the appellant received $1,434.00 for Social Security disability. The standard Medicare deduction, effective December 1, 2011, totaled $1,156.80 per year or $96.40 per month. This deduction increased to $1,258.80 per year or $104.90 per month, effective December 1, 2012, until December 1, 2016. Unfortunately, until the appellant's employment income situation or deductible medical expenses show otherwise, and based on the information provided, his countable income exceeds the maximum annual rate payable. For example, from the period of December 1, 2011, through December 1, 2012, the period when the appellant initially applied for death pension benefits, the evidence shows his yearly income was $14,897.80 from Social Security disability and $12,000 from working at Walmart. His total earnings from this initial period totaled $26,897.80, but when Medicare premiums for the year ($1,156.80) are subtracted, the total of $25,741.00 or $2,145.08 per month still exceeds the maximum annual death pension limit set by law for a child alone, which was $2,093.00 per month. From December 1, 2012, through December 1, 2013, the evidence shows that the appellant's income was $17,038.90 ($1,264.90 for December 2012 and $1,434.00 since January 2013) and $12,000 from working at Walmart (as the evidence does not otherwise show a change in his employment earnings) for a total of 29,038.90. After subtracting Medicare premiums for this entire period ($1,258.80), the appellant's total income for this period amounted to $27,780.10 or $2,315.00 per month. Accordingly, the appellant's income during this period continued to exceed the maximum annual death pension limit set by law for a child alone, which was $2,129.00 per month. The record does not contain any evidence of the appellant's income or unreimbursed medical expenses after his December 2011 claim that would establish if he currently meets the income requirements for nonservice-connected death pension benefits, or if he would have been eligible at any other point during the entirety of the period on appeal. The evidence of record shows that the appellant's income has consistently exceeded the maximum allowed for death pension purposes. Based on the foregoing, the Board concludes that the appellant is not legally entitled to VA death pension benefits because his income exceeds the statutory limits for entitlement to death pension benefits. See Manual M21-1, Part I, Appendix B. Where the law, and not the evidence, is dispositive, the claim must be denied due to lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As a result, the Board need not discuss the merits of whether the Veteran had qualifying service during a period of war. Because the appellant is not found to be a "helpless child" and his income exceeds the statutory limits, he is not legally entitled to death pension benefits. Therefore, his claim of entitlement to death pension benefits must be denied. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided a letter to the appellant in January 2013, prior to the initial adjudication of the death pension claim on appeal. The letter notified the appellant of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the appellant and what information and evidence would be obtained by VA. The appellant was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). All identified and available relevant documentation has been secured and all relevant facts have been developed. VA's duty to assist in developing the facts and evidence pertinent to a claim is not a one-way street, and it is the responsibility of the claimant to cooperate with VA with regard to development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). This is especially true in matters relating to private records, to which VA has no access or knowledge without the appellant's cooperation. Given the appellant's actions, and VA's offers to assist him in developing the claim, the Board finds that VA has no additional duty with regard to request for private income records. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the appellant's statements in support of the claim are also of record. The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. For these reasons, the Board finds that the duties to notify and assist the appellant in the development of this claim have been met, so that no further notice or assistance to the appellant is required to fulfill VA's duty to assist. 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). ORDER Entitlement to Improved Death Pension survivor's benefits is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs