Citation Nr: 1805333 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 16-62 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to increased death pension benefits on and after February 1, 2016. 3. Entitlement to special monthly pension (SMP) based on the need for aid and attendance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. M. Celli, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to December 1953. He died in January 2015, and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 decision by a Department of Veterans Affairs (VA) Regional Office. 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 issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The AOJ properly calculated the appellant's amount of death pension benefits on and after February 1, 2016. 2. The probative evidence does not demonstrate the appellant's need for the aid and attendance of another person for purposes of SMP benefits. CONCLUSIONS OF LAW 1. The criteria for increased death pension benefits on and after February 1, 2016, have not been met. 38 U.S.C. §§ 1541, 5312 (2012); 38 C.F.R. §§ 3.3, 3.23 3.271, 3.272 (2017). 2. The criteria for SMP based on the need for aid and attendance have not been met. 38 U.S.C. § 1541(d) (2012); 38 C.F.R. § 3.23(a)(6) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Furthermore, neither the appellant nor her representative has alleged any deficiency with respect to VA's duties to notify or assist in connection with the claims decided herein. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Death Pension Benefits The appellant asserts entitlement to VA death pension benefits equal to the pension benefits previously provided to the Veteran, or benefits equivalent to the $613 per month that she received from March 1, 2015, to January 31, 2016. As the appellant clearly disagrees only with the reduction of benefits beginning February 1, 2016, the Board has characterized the issue as shown on the title page of this decision and will adjudicate such matter accordingly. VA law provides that a pension is payable to surviving spouses of veterans of a period of war. Basic entitlement exists if the veteran served in the active military, naval, or air service for 90 days or more during a period of war, or who at the time of death was receiving compensation for a service-connected disability, subject to certain net worth and annual income requirements. 38 U.S.C. § 1541; 38 C.F.R. § 3.3. Specifically, the annual income of the surviving spouse must not exceed the maximum annual pension rate (MAPR) specified in 38 U.S.C. § 5312, increased from time to time as published in the Federal Register. 38 C.F.R. §§ 3.3, 3.23. Income includes payments of any kind from any source during a twelve-month period except for exclusions, including unreimbursed medical expenses when they are in excess of five percent of the pension rate. Fractions of dollars are ignored when computing income. Expenses for the Veteran's last illness, burial, and just debts (not secured by real or personal property) are also excludable from income. 38 C.F.R. §§ 3.271, 3.272. General living expenses for utilities, life insurance premiums, housing, and transportation (other than for medical care) are not excludable. The MAPR is published in Appendix B of VA Manual M21-1 and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21. The maximum annual pension rate is adjusted from year to year. If the appellant's income is less than the MAPR, VA will pay benefits to bring her income up to that level. Effective December 1, 2014, the MAPR for a surviving spouse without dependents was $8,630, with medical expenses exceeding $431 as permitted deductibles. Effective December 1, 2016, the MAPR was $8,656, and medical expenses exceeding $432 were deductible. Effective December 1, 2017, the MAPR was $8,830, and medical expenses exceeding $442 were deductible. From February 1, 2016, to November 30, 2016, the appellant received $59 per month for death pension benefits. In her March 2016 notice of disagreement, she stated that she was too old to work. In April 2016, the AOJ requested that the appellant complete VA Form 21-8416, Medical Expense Report, to claim medical expenses in order to reduce the amount of her countable income. Although the appellant returned the form in July 2016, she did not complete the required fields. Rather, she detailed the expenses that the Veteran incurred prior to his death. A September 2016 report of general information shows the appellant confirmed that she had no additional medical expenses or evidence to submit in support of her appeal. Although the appellant reported ownership of a piece of real property, the records did not reflect any additional source of income from that property. As a result, the AOJ calculated the appellant's annual Social Security Income of $7,920 as her sole income for 2016. Subtracting this amount from the MAPR for the period from February 1, 2016, to November 30, 2016, ($8,630), and dividing the remainder by 12, the AOJ correctly calculated a $59 monthly payment rate. On December 1, 2016, the AOJ notified the appellant that her pension award had received a cost of living adjustment resulting in a $60 monthly payment. The AOJ continued to consider the appellant's Social Security Income, $7932 yearly, or $662 per month, as her sole source of income on and after December 1, 2016. As reported above, the MAPR was $8,656 for that period. Similarly, on December 1, 2017, the AOJ notified that the appellant that her pension award had received a cost of living adjustment resulting in a $61 monthly payment. The AOJ continued to consider the appellant's Social Security Income, $8088 yearly, or $674 per month, as her sole source of income on and after December 1, 2017. As reported above, the MAPR was $8,830 for that period. As the record does not reflect any newly reported medical expenses for reducing the appellant's countable income during this period, the Board finds the AOJ properly calculated the appellant's monthly pension award. 38 C.F.R. §§ 3.271, 3.272. The Board recognizes the appellant's statements concerning her inability to work, advanced age, and household bills and food expenses. In this respect, the AOJ did not consider any annual income beyond the appellant's Social Security income. Further, the Board finds probative that general living expenses for utilities, housing, and transportation (other than for medical care) are not excludable for calculating death pension benefits. Although the appellant reports several medical conditions, she does not present factual evidence pertaining to the personal payment of any medical expenses. In fact, her assertions center almost entirely upon her need to pay household bills, car payments, and food expenses, which are not excludable for purposes of calculating death pension benefits. In summary, the Board finds the AOJ properly applied the laws and regulations when calculating the amount of the appellant's death pension benefits on and after February 1, 2016. Consequently, entitlement to increased death pension benefits must be denied. As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. SMP The appellant asserts that she is entitled to SMP based on her need of the aid and attendance of another person. Improved pension rates are provided for surviving spouses in need of aid and attendance. 38 U.S.C. § 1541(d); 38 C.F.R. § 3.23(a)(6). Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(b). The surviving spouse will be considered in need of regular aid and attendance if he or she is 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; is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Determinations as to the 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: inability of the claimant to dress or undress himself/herself or to keep himself/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; inability of the claimant to feed himself/herself 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 the hazards or dangers inherent in his/her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant 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. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). Determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In support of her claim, an October 2016 private treatment record shows the appellant reported the need for some help around her house with skill services. In particular, she had a difficult time getting around, cleaning, and keeping up with housework. The private physician diagnosed weakness, chronic pain syndrome, and essential hypertension and found the appellant needed physical therapy and occupational therapy for balance and weakness, assistance with medications, and assistance with housekeeping, cooking, etc. The record indicates the private physician would refer the appellant for home care assistance. Additionally, the appellant submitted a VA examination report pertinent to housebound status or permanent need for regular aid and attendance completed by a nurse practitioner in November 2016. Such reflects diagnoses of hypertension, anxiety, chronic pain, and weakness. It was observed that the appellant's gait was unsteady. However, she was able to feed herself and prepare her own meals. She did not need assistance in bathing or tending to other hygiene needs. The appellant was also not legally blind, and did not require nursing home care. Rather, the nurse practitioner only noted that the appellant required medication management to ensure she takes her medication appropriately. Upon examination, the appellant was well-groomed, maintained good eye contact, and was overall well-nourished. It was only noted that she had an unsteady gait with some weakness. Pertinent to the restrictions of the lower extremities, it was reported that the appellant had mild weakness, but was able to feed herself and button clothing. With regard to the restrictions associated with her lower extremities, the appellant had weakness and balance impairment, unsteady gait, and a risk of falls. Pertinent to the restrictions of the spine, trunk, and neck, range of motion can be limited due to pain. With regard to all symptoms that affected the claimant's ability to perform self-care, ambulate or travel beyond the premises of the home, the nurse practitioner observed that the appellant had occasional dizziness and poor balance. It was further noted that she mainly stayed home with occasional trips to the store, doctors' office, etc, and would leave the house approximately two to five times a week. Upon review, the Board finds this record does not demonstrate that the appellant requires the aid and attendance of another person. In particular, neither report indicates that she is 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, or that she is a patient in a nursing home. It also does not reflect an inability to dress or undress, a frequent need of adjustment of any special prosthetic or orthopedic appliances, or an inability of the claimant to feed herself without the assistance of another. Further, such do not demonstrate that the appellant has an inability to attend to the wants of nature or required care or assistance on a regular basis to protect herself from the hazards or dangers inherent in her daily environment. The Board acknowledges that the appellant is competent to describe her symptoms and their effects on her daily life. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, as noted above, determinations that the claimant is so helpless as to be in need of regular aid and attendance must be based on the actual requirement of personal assistance from others. Here, the competent medical evidence does not reflect an actual requirement for the aid and attendance of another person, nor does it show that the appellant is legally blind or requires nursing home care. As a result, the Board finds the appellant is not entitled to SMP based on the need for aid and attendance. The Board has considered the benefit of the doubt; however, the preponderance of the evidence is against the appellant's claim, and therefore, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to increased death pension benefits is denied. SMP based on the need for regular aid and attendance is denied. REMAND Although the Board regrets the additional delay, 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 for service connection for the cause of the Veteran's death so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As an initial matter, the Board notes that the appellant reported that the Veteran lived in an assisted living facility prior to his death and provided a VA Form 21-4142 Authorization to Disclose Information for the Arma Care Center and the Girard Hospital. However, she did not fully complete such forms with the address of the facilities or dates of treatment. Rather, she indicated that VA should have such information. The appellant is herein advised that VA cannot obtain such records without a completed VA Form 21-4142, and, while some records from Arma Care Center are on file, such do not appear to be complete. Therefore, on remand, she should be provided another opportunity to fully identify such records so as to allow VA to request them. Further, any medical records pertaining to the Veteran's last sickness should be obtained so as to assist in the determination of the nature of such sickness. Generally, in a cause of death claim, VA must make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The Veteran's certificate of death lists the immediate cause of death as congestive heart failure. Although the Veteran was not service-connected for any disability at the time of his death, service connection for the cause of the Veteran's death may be granted if the evidence demonstrates that a disability of service origin was either the principal or contributory cause of the Veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). Here, the appellant argues that the Veteran had an acquired psychiatric disorder related to his military service that contributed to his cause of death. In this regard, the record reflects that the Veteran served in Korea, and in September 1980, was treated for depression. At such time, he reported a history of nervousness dating back to 1953. Thereafter, in March 1981, he filed a claim for service connection for a nervous condition in which he reported that he felt nervous and depressed in July 1952 after returning to the United States. However, such claim was denied in a May 1981 rating decision on the basis that his service treatment records were negative for evidence of a chronic neurosis during service. Even so, the Board finds that a remand is necessary in order to obtain a medical opinion addressing whether the Veteran had an acquired psychiatric disorder during his lifetime related to service, to specifically include his time in Korea, and, if so, whether such contributed to his fatal congestive heart failure. Accordingly, this issue is REMANDED for the following actions: (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. Assist the appellant in obtaining any outstanding private treatment records for the Veteran, to specifically include those from the Arma Care Center, Girard Hospital, and those pertaining to the nature of his last illness. The appellant should be advised that VA can only obtain such records IF she provides the complete information for the provider, to include the address and dates of treatment. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the appellant and afford him an opportunity to submit any copies in her possession. 2. After obtaining any outstanding records, forward the record to an appropriate VA clinician for a medical opinion as to the Veteran's cause of death. The record and a copy of this Remand must be made available to the examiner. Following a review of the file, the examiner should offer an opinion as to the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran had an acquired psychiatric disorder during his lifetime, to include depression, that was related to his military service, to include his time in Korea? (B) If so, is it at least as likely as not (i.e., a 50 percent probability or greater) that such acquired psychiatric disorder contributed substantially or materially to the cause of the Veteran's death, combined to cause death, or aided or lent assistance to the production of death? A rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, 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 Veteran 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 Department of Veterans Affairs