Citation Nr: 1802724	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-07 068	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for the cause of the Veteran's death, including Dependency and Indemnity Compensation (DIC) on behalf of his surviving minor children.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD), chronic skin rash, gastroesophageal reflux disease (GERD), restless leg syndrome, bilateral pes planus, hearing loss, tinnitus, hypertension and peripheral nerve damage for accrued benefits purposes on behalf of the Veteran's surviving minor children. 

3.  Entitlement to death pension benefits on behalf of the Veteran's surviving minor children.




REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel


INTRODUCTION

The Veteran had active military service from October 1987 to October 1991.  He died in May 2009.  The Appellant is his mother, acting as custodian of his surviving minor children.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  Jurisdiction subsequently was transferred to the RO in Louisville, Kentucky.

This case was remanded in April 2013 in order to provide the Appellant with a hearing.  The Appellant testified at a hearing before the undersigned Veterans Law Judge in June 2017.  The transcript has been made a part of the record.  

The issue of entitlement to service connection for the cause of the Veteran's death, including DIC on behalf of his surviving minor children, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Appellant's countable annual income exceeds the maximum annual death pension rate (MAPR).


CONCLUSION OF LAW

The income criteria for death pension benefits are not met.  38 U.S.C. §§ 1502, 1521, 1522, 5107 (2012); 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272, 3.273 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Death Pension

The Appellant, the Veteran's mother, asserts that she is entitled to nonservice-connected death pension on behalf of the Veteran's children as their custodian.

The claims file reflects that the Veteran has two minor daughters, born in August 1997 and September 2001.  

Generally, VA death pension benefits are available to each child (1) who is the child of a deceased Veteran who served for at least 90 days during a period of war, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability; and (2) who is not in the custody of a surviving spouse with basic eligibility for death pension.  38 U.S.C. § 1542 (West 2002); 38 C.F.R. § 3.24(a) (2017).  

In this case, the Veteran served for more than ninety days during the Persian Gulf War era.  See DD Form 214.  The Veteran's children were under the age of 18 when the Appellant filed the claim on appeal.  Moreover, the children were not in the custody of the Veteran's surviving spouse.  See Veteran's Death Certificate (Veteran had no surviving spouse at the time of his death).  Instead, his children are in the custody of his mother.  Therefore, his children meet the basic eligibility requirements of 38 U.S.C. § 1542 and 38 C.F.R. § 3.24(a).  

Death pension shall be paid at the maximum annual pension rate (MAPR) as specified under 38 U.S.C. § 5142, and increased from time to time under 38 U.S.C.A. § 5312, as reduced by the amount of the surviving child's countable annual income.  

The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as published in VA regulations.  38 C.F.R. § 3.21.  The MAPR is revised every December 1st and is applicable for the following 12-month period. 

The MAPR for the years 2009 and 2010 were as follows: $7933 for an individual with no dependent child, $10,385 for an individual with one dependent child, and $2,020 for each additional child or for a child alone. 

In determining countable income, all payments of any kind or from any source will be included unless specifically excluded by 38 C.F.R. § 3.272. 38 U.S.C.A. § 1503 (West 2002); 38 C.F.R. §§ 3.271, 3.272 (2017).  Income from the Social Security Administration (SSA) is not excluded under 38 C.F.R. § 3.272 and, therefore, must be included in countable income.

In March 2010 the Appellant reported that her yearly income was $15,544.32.  She additionally reported receiving $902.00 per month for each of the Veteran's children, or $10,824.00 per year for each child.  See VA Form 21-534, received in March 2010.  She did not report medical expenses.

Pension shall be paid to children in custody of a person legally responsible for the children's support at an annual rate equal to the difference between the rate for a surviving spouse and an equivalent number of children (but not including any child who has countable annual income equal to or greater than the maximum annual pension rate under paragraph (b) of this section) and the sum of the countable annual income of the person legally responsible for support and the combined countable annual income of the children (but not including the income of any child whose countable annual income is equal to or greater than the maximum annual pension rate under paragraph (b) of this section, or the maximum annual pension rate under paragraph (b) of this section times the number of eligible children, whichever is less).  38 C.F.R. § 3.24(c)(2).  

The evidence reflects that that the income received by the Appellant and the Veteran's children, through SSA payments, exceeds the amount allowed for pension and pension cannot be paid.

As noted above, the SSA benefits received for each child were $10, 824 per year, which means that their income was greater than the MAPR for a single child ($2,020).  As such, in determining the pension amount paid under 38 C.F.R. § 3.24(c)(2), for a custodian of more than one child, the SSA income received by the Veteran's children would not be included.

The Appellant has reported her yearly income as $15,544.32, which is greater than the MAPR for a surviving spouse with no dependents ($7933).  

In sum, the Appellant's income exceeded the applicable MAPR for the years 2009 and 2010 and thus she is not entitled to payment of nonservice-connected death pension benefits.  She has not reported any income since the March 2010 claim.  

Even after resolving reasonable doubt in the Appellant's favor where possible, the evidence is not so evenly balanced as to warrant an award of nonservice-connected death pension benefits.  Therefore, the claim must be denied. 

Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

ORDER


Entitlement to death pension benefits on behalf of the Veteran's surviving minor children is denied.


REMAND

With respect to entitlement to service connection for the cause of the Veteran's death, the Appellant argues that the Veteran had PTSD related to service and that such PTSD contributed to the cerebrovascular accident (CVA) that caused his death.  Thus, in order to establish entitlement to service connection based on this theory of entitlement, it must be shown that the Veteran had PTSD that was related to his military service and that such PTSD caused his death or substantially contributed to his death.  

With respect to establishing these two elements of the claim, it appears that there are outstanding records that should be obtained and added to the record.  At her hearing, the Appellant testified that the Veteran had received ongoing treatment for his PTSD at the Vet Center in Lexington, Kentucky following a hospitalization at the VA in 2007.  In addition, the Appellant reported that the Veteran had begun receiving treatment for high blood pressure in 2003 or 2004, apparently from a private provider.  

These records are not in the claims file, and should be obtained and added to the record on remand.  

If additional records are obtained on remand and such records suggest the Veteran had PTSD that either caused or contributed substantially to his cause of death, then the RO must determine if the Veteran's PTSD was related to his military service.  

Finally, with regard to the claim for accrued benefits, in its August 2010 rating decision, the RO found that there was no evidence that a disability claim was pending at the time of the Veteran's death, that a claim was adjudicated prior to the Veteran's death but payments had not been made, or that a substantive or administrative appeal was pending at the time of death.  Based on the conclusion that there was no pending claim for entitlement to disability benefits before the VA at the time of the Veteran's death, the RO denied entitlement to accrued benefits without addressing the merits of the claims.

The term "pending claim" means an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. § 3.160(c) (2017).  The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier.  38 C.F.R. § 3.160(d) (2017); see also 38 C.F.R. §§ 20.1103, 20.1104 (2017).
 
In this case, the Veteran had been denied entitlement to service connection for PTSD, chronic skin rash, GERD, restless leg syndrome, bilateral pes planus, hearing loss, tinnitus, hypertension and peripheral nerve damage in a May 2008 rating decision.  A letter was provided to Veteran on May 29, 2008, informing him that he had one year from the date of the letter to appeal the decisions.  The Veteran's death certificate reflects that he died on May [REDACTED], 2009, prior to the expiration of the appeals period from the May 2008 rating decision.  As such, these claims were pending when the Veteran died for purposes of defining a pending claim under the applicable accrued benefits regulations.  

An application for accrued benefits must be filed within one year after the date of death.  38 C.F.R. § 3.1000(c) (2017).  Here, the claim was timely filed, as the Appellant filed her application for accrued benefits on behalf of the Veteran's minor children in March 2010, within one year of the Veteran's death in May 2009.

As the Board finds that there were claims pending at the time of the Veteran's death, and the Appellant filed a timely claim for accrued benefits, the claim for accrued benefits must be adjudicated on the merits by the AOJ in the first instance.  

On remand, the AOJ must adjudicate on the merits the claims for service connection for PTSD, chronic skin rash, GERD, restless leg syndrome, bilateral pes planus, hearing loss, tinnitus, hypertension and peripheral nerve damage, for accrued benefits purposes.

Accordingly, the case is REMANDED for the following action:

1.  Take the necessary steps to obtain records reflecting treatment from the Vet Center in Lexington, Kentucky following a hospitalization at the VA in 2007 and treatment for high blood pressure in, beginning in 2003 or 2004, apparently from a private provider.   

Make at least two (2) attempts to obtain records from any identified sources.  If any such records are unavailable, inform the Appellant and afford her an opportunity to submit any copies in her possession.

2.  Thereafter, if any additional records received indicate that the Veteran's PTSD either caused or substantially contributed to the Veteran's cause of death, the AOJ should arrange for the Veteran's claims file to be forwarded to an appropriate examiner for review and preparation of a medical opinion. 

The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum.

The examiner should determine whether it is at least as likely as not (50 percent probability or more) that the Veteran's PTSD was related to his time on active duty when his unit underwent attack by SCUD missile to include whether his PTSD was based on a fear of hostile military or terrorist activity based on the nature of his service in Saudi Arabia during the Persian Gulf war.  In so opining, the examiner must address the Veteran's contention that he began having sleep problems and nightmares during active duty.

The examiner must provide a rationale for each opinion given. 

3.  Readjudicate the issues on appeal.  If any benefit on appeal remains denied, issue a supplemental statement of the case.  Thereafter, the case should be returned to the Board, if in order.

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).



______________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs