Citation Nr: 1813636 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 14-31 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to nonservice-connected death pension (survivor's pension) benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to April 1972. He died in March 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 determination issued by Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further evidentiary development is necessary prior to adjudicating the appellant's claim on appeal. Specifically, the Board finds that a remand is necessary to determine whether the appellant's countable income and unreimbursed medical expenses have been correctly calculated. VA establishes an annual rate for non-service connected pension, and the amount of pension paid is determined by subtracting the surviving spouse's countable income from the annual pension rate. 38 U.S.C. § 1541. The maximum annual rate for non-service-connected death pension, as specified in 38 C.F.R. § 3.23, is published in Appendix B of Part I of VA Manual M21-1 (M21-1), and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during a 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271(a). Social Security Administration (SSA) income is not specifically excluded under 38 C.F.R. § 3.272; nor is the income of a spouse. Unreimbursed medical expenses in excess of 5 percent of the maximum annual pension rate (MAPR), which have been paid, may be excluded from an individual's countable income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the appellant received no reimbursement, such as through an insurance company. However, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. Countable income and excludable expenses are based on 12-month annualization periods for death pension. 38 C.F.R. §§ 3.271, 3.272. Initially, there is conflicting evidence of record regarding the amount of the appellant's unreimbursed medical expenses. In this regard, the AOJ indicated that the appellant's Medicare premiums were $1,049 and that she paid $194.25 to Eau Claire Cooperative Health from August 12, 2013 to August 12, 2014. However, documentation regarding Medicare premiums totaling $1,049 is not of record. Furthermore, the Board observes that in a June 2012 VA Form 21-534 (Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child) the appellant wrote that she had paid $400 for diabetes medication. Also, in a November 2016 VA Form 21P-8416b (Report of Medical, Legal, and other expenses incident to Recovery for Injury or Death), the appellant noted that she spent $900 per month on medicine and $1,000 per month on transportation from 2011 through 2014. Documentation regarding these expenses is not of record. Furthermore, there is no indication that such expenses were considered in the calculation of unreimbursed medical expenses. Moreover, the Board observes that the RO indicated that the appellant's calculated income included annual SSA benefits of $12,816 in 2012. While documentation regarding the appellant's SSA benefits shows that she has been in receipt of SSA benefits since October 2011, during the November 2016 Board hearing, the appellant testified that she did not begin receiving SSA benefits until February 2014. Such should be clarified on remand. In light of the foregoing, the Board finds that it is unclear from the current record what amounts the AOJ used in calculating the appellant's countable income and unreimbursed medical expenses. Thus, a remand is required to allow the appellant to clarify and submit supporting documentation regarding her claimed unreimbursed medical expenses and for the AOJ to provide a detailed accounting of the appellant's entitlement to nonservice-connected death pension, including the calculations used for her unreimbursed medical expenses and countable income. Accordingly, the case is REMANDED for the following action: 1. Request clarification and supporting documentation from the appellant regarding her claimed unreimbursed medical expenses. 2. Conduct a thorough accounting of the appellant's countable income, to include the calculation of the deduction of unreimbursed medical expenses. Ensure that the annual income and deductions made for unreimbursed medical expense deductions are the same as that reflected in the appropriate SSA Inquiry printouts and reports of medical expenses submitted by the appellant. In a detailed summary, the AOJ must provide a clear explanation for all figures used so that the Board is able to understand where it derived the amounts used in calculating the appellant's countable income and why such amounts were used. 3. Readjudicate the appeal. 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 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. §§ 5109B, 7112 (2014). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).