Citation Nr: 18152778 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-14 972 DATE: November 26, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is dismissed. Entitlement to accrued benefits is dismissed. REMANDED Entitlement to death pension is remanded. FINDING OF FACT During the May 2017 Board hearing, the appellant withdrew from appeal the issues of entitlement to service connection for the cause of the Veteran’s death and entitlement to accrued benefits. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the appellant of a Substantive Appeal pertinent to the issue of entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal by the appellant of a Substantive Appeal pertinent to the issue of entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1961 to October 1964. He died in November 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. Jurisdiction was subsequently transferred to the RO in Houston, Texas. In May 2017, the appellant testified during a Board videoconference hearing before the undersigned Veterans Law Judge. Withdrawn Claims The Board notes that under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative on the record at a hearing. Id. During the May 2017 Board hearing, the appellant indicated that she wished to withdraw the issues of entitlement to service connection for the cause of the Veteran’s death and entitlement to accrued benefits. See Board Hearing Transcript at 2. As the appellant has withdrawn these matters, there remain no allegations of errors of fact or law for appellate consideration with respect to claims for service connection for the cause of the Veteran’s death and for accrued benefits. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and they are dismissed. REASONS FOR REMAND Entitlement to Death Pension is Remanded Although the Board regrets the delay, upon review of the claims file, the Board finds that additional development on the remaining claim on appeal is warranted. Basic entitlement to death pension benefits exists if (i) a veteran served for ninety days or more during a period or periods of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on wartime service; and (iii) the surviving spouse 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 (MAPR) 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. 38 U.S.C. § 1521(j) indicates that a veteran meets the service requirements if the Veteran served on active military, naval, or air service (1) for ninety (90) days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. Pursuant to regulation, the Vietnam era is recognized as the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period begins on August 5, 1964, and ends on May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2. Given that the Veteran served for 90 or more consecutive days and his service ended during a period of war, the service requirements are met. The AOJ determined that the appellant’s income was in excess of the MAPR for a surviving spouse with no dependents. However, the appellant asserts that, as she is need of aid and attendance due to disability, a higher MAPR for survivors with aid and attendance is applicable. See 38 U.S.C. § 1521; 38 C.F.R. § 3.23(a)(6). During the hearing, the appellant indicated that her Social Security Administration (SSA) records demonstrate the severity of her disabilities and that she requires the aid and attendance of another individual for assistance with activities of daily living. While SSA are not controlling for VA determinations, they may be “pertinent” to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the possible existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Moreover, giving the foregoing, the Board believes that the appellant should be afforded an examination to determine whether she is in need of aid and attendance of another. Finally, the appellant indicated in a May 2017 communication that her physician would be completing a VA Form 21-2680, Examination for Aid and Attendance. While this matter is on remand, the appellant should be provided another opportunity to submit this evidence, as well as any other medical records or other evidence that may establish her entitlement to aid and attendance. Updated income and medical expense information should be obtained as well. The matter is REMANDED for the following action: 1. The AOJ should request that SSA furnish a copy of its decision awarding the appellant disability benefits, as well as copies of all medical records underlying that determination. 2. Send the appellant and her representative a letter requesting that she provide sufficient information and authorization to enable it to obtain any additional evidence pertinent to her claim for death pension with aid and attendance. 3. Furnish VA Forms 21-2680 (Examination for Aid and Attendance), 21-0516-1 (Improved Pension Eligibility Verification Report), and 21-8416 (Medical Expense Report) to the appellant and request that she complete the forms and provide financial status information for the years 2011 to the present. 4. The appellant should be afforded a VA examination to determine the whether she is in need of aid and attendance or whether she is housebound as defined by VA. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, an appropriate examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the appellant's disabilities are sufficient by themselves to render her so helpless as to require the aid and attendance of another person on a regular basis. The examiner should also address whether it is at least as likely as not that the appellant is permanently housebound (i.e., substantially confined to her home or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime). 5. Then readjudicate the appellant’s claim, with particular consideration of whether the MAPR for a surviving spouse in need of aid and attendance is applicable. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs