Citation Nr: 1803425 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-28 582A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to nonservice-connected death pension as of January 1, 2013. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and her brother ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to April 1954. He died on December [REDACTED], 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from an administrative decision issued in November 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. This matter is currently under the jurisdiction of the Winston-Salem, North Carolina, RO. In a June 2013 decision, the agency of original jurisdiction (AOJ) granted nonservice-connected death pension from January 1, 2012, to December 31, 2012. In addition, in a March 2014 rating decision, the AOJ determined that the appellant met the factual requirements for special monthly pension (SMP) by reason of being housebound, effective December 23, 2013. However, as she was notified in a June 2014 letter, as her income as of January 1, 2014, exceeded the maximum annual death pension limit set by law for a surviving spouse at the housebound rate with no dependents, no benefits were paid. The appellant and her brother testified at a Board hearing before the undersigned Veterans Law Judge in February 2016. A transcript of the hearing is of record. In May 2016, the Board denied entitlement to accrued benefits and remanded the issues of entitlement to nonservice-connected death pension as of January 1, 2013, and entitlement to burial benefits in excess of $300.00. In April 2017, the Board denied nonservice-connected burial benefits in excess of $300 and remanded the issue of entitlement to nonservice-connected death pension as of January 1, 2013. In a May 2017 supplemental statement of the case, the AOJ continued the denial of nonservice-connected death pension for years 2013, 2014, and 2016, and granted such benefit effective January 1, 2015, but terminated it effective January 1, 2016. The Board notes that the appellant's representative was not provided with an opportunity to submit an Informal Hearing Presentation prior to the Board's review of the case. However, the Board finds no prejudice to the appellant in proceeding with the issuance of this Remand because, following the completion of the requested development, her representative will be given an opportunity to submit additional argument prior to the case's return to the Board This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). As noted by the Board in the May 2016 remand, a June 2013 decision granting entitlement to nonservice-connected death pension benefits for the year 2012 found that the appellant's 2013 income exceeded the applicable maximum allowable pension rate (MAPR) specified in 38 C.F.R. § 3.23. In addition, in a March 2014 rating decision, the AOJ determined that the appellant met the factual requirements for SMP by reason of being housebound, effective December 23, 2013; however, as she was notified in a June 2014 letter, as her income as of January 1, 2014, exceeded the MAPR for a surviving spouse at the housebound rate with no dependents, no benefits were paid. In addition, as noted by the Board in the April 2017 remand, although the AOJ continued the denial of her claim in an August 2016 supplemental statement of the case because she did not respond to a June 2016 request for medical expense information, upon a review of the record, the Board found that the appellant, through her granddaughter, had submitted such information. Therefore, the Board remanded the case for the AOJ to review such income and expense information in the first instance, and readjudicate the appellant's claim of entitlement to nonservice-connected death pension as of January 1, 2013. Although the May 2017 supplemental statement of the case reflects consideration of the income and expense information as directed, there is no reference to the expense of $1,342.92 in 2013, 2014, and 2015 reported for an aid/nurse. The Board notes that, pursuant to VA Adjudication Procedures Manual, fees paid to an in-home attendant may be allowed. See VA Adjudication Procedures Manual, M21-1, V.iii.1.G.2.c. and V.iii.1.G.3.h. As such, clarification is needed for a determination. In addition, in a September 2017 submission, the appellant indicated that the cost of Medicare had increased, and stated that she would be submitting additional evidence from the Social Security Administration (SSA) in support of her claim. It does not appear that the evidence has been associated with the claims file. 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. Attempt to obtain any evidence from SSA not already associated with the claims file. 2. Clarify in the record whether an expense of $1,342.92 per year for an aid/nurse was considered in the calculations of the appellant's reported medical expenses for 2013, 2014, and 2015. 3. After undertaking any additional development required, to include in accordance with VA Adjudication Procedures Manual, M21-1, V.iii.1.G.3.q, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).