Citation Nr: 18152174 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-13 791 DATE: November 21, 2018 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. Whether the Appellant's countable income is a bar to death pension benefits, to include at the aid and attendance rate is remanded. REASONS FOR REMAND The Veteran served on active military service from September 1950 to September 1953. He died in September 2015; the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 rating decision. In June 2017, the Board denied the claims on appeal, as well as a claim for Dependency and Indemnity Compensation (DIC) benefits pursuant to 38 U.S.C. § 1318. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the Court granted a Joint Motion for Partial Remand. The Appellant did not pursue the claim for DIC benefits pursuant to 38 U.S.C. § 1318 and thus, it was not part of the appeal. The claims pertaining to service connection for the cause of the Veteran’s death and countable income were remanded to the Board in accordance with the Joint Motion. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Appellant seeks service connection for the cause of the Veteran’s death. She asserts that the Veteran’s death was the result of weakened heart muscles from his prostate cancer, which was caused by exposure to ionizing radiation during his active military service. VA has confirmed the Veteran’s exposure to ionizing radiation from atmospheric nuclear tests. The Veteran died in September 2015; the immediate cause of death listed on his death certificate is respiratory failure due to end stage congestive heart failure. Chronic obstructive pulmonary disease (COPD) and history of prostate cancer are listed as conditions contributing to death but not resulting in the underlying cause. The death certificate reflects the Veteran died of natural causes, and that tobacco use probably contributed to his death. As noted above, the Court remanded the issue pursuant to instructions set forth in the Joint Motion. The Court found the Board failed to discuss the May 2006 advisory opinion from the Under Secretary for Benefits (USB) regarding the relationship between the Veteran’s prostate cancer and ionizing radiation exposure and in not discussing the opinion, also failed to determine if the opinion was adequate pursuant to 38 C.F.R. §3.311(c) and (e). In October 2018, the Appellant asserted that the May 2006 advisory opinion was inadequate because it did not address such factors as pertinent family history, age at time of exposure, time-lapse between exposure and onset of disease, and the extent to which exposure to radiation or other carcinogen, outside of service may have contributed to the development of the Veteran’s prostate cancer. Thus, the Appellant argues that a new opinion is necessary and must also consider a November 2009 Radiation Risk Activity Information Sheet that was added to the record after this opinion was issued. The Board finds that the claim must be remanded for an advisory medical opinion from the Under Secretary for Health, with referral to an outside consultant if necessary. 38 C.F.R. § 3.311. The opinion should address the specific questions set forth below. Whether the Appellant's countable income is a bar to death pension benefits, to include at the aid and attendance rate is remanded. The Court found that the Board erred in its statement of reasons of bases when it found the Appellant’s countable income constituted a bar to VA death pension benefits. Specifically, the Court found that there was ambiguity within the income statement. Notably, the Court indicated that it appeared the Board combined the Appellant’s Social Security income with the Veteran’s, as well as income from Dixie Cup, under the section for expected income for the next 12 months provided on the September 2015 application for death pension benefits. The Court found that remand for clarification of the evidence was necessary for a proper appellate decision. The matters are REMANDED for the following action: 1. Forward the appeal to the USB to obtain an advisory medical opinion from the Under Secretary for Health, with referral to an outside consultant if necessary. The medical opinion should indicate whether it is at least as likely as not that the Veteran’s adenocarcinoma of the prostate was incurred as a result of his confirmed exposure to ionizing radiation in service. The opinion must address the revised dose estimates provided on March 6, 2006, by the Defense Threat Reduction Agency (DTRA) and a November 2009 Radiation Risk Activity Information Sheet provided by the Veteran. The opinion must also address the six factors for consideration under 38 C.F.R. § 3.311 (e)(1)-(6), when determining whether the Veteran’s prostate cancer resulted from exposure to ionizing radiation in service. 2. If it is determined that the Veteran’s adenocarcinoma of the prostate resulted from exposure to ionizing radiation, the matter must then be forward to the appropriate VA clinician to render an opinion on the cause of the Veteran’s death. The examiner must indicate whether prostate cancer was the principal or contributory cause of death. 3. Send the Appellant a letter asking that she identify complete information as to her income and expenses for the applicable time period, to include any (a) SSA income, (b) income from Dixie Cup delineating whether it was annual or monthly, (c) unreimbursed medical expenses (including insurance premiums) and (d) expenses associated with the Veteran’s last illness, burial, and just debts that were paid that may offset the amount of her countable income for death pension eligibility calculation purposes in pertinent years. This letter should notify the Appellant of the additional exclusions from income that are listed in 38 C.F.R. § 3.272, and she should be asked to identify any exclusions from income that are applicable in her case. The letter should be enclosed with Improved Pension Eligibility Verification Reports, Medical Expense Reports, and any other forms required for a full and accurate reporting of the Appellant’s income and expenses for the period in question. 4. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel