Citation Nr: 1815072	
Decision Date: 03/09/18    Archive Date: 03/19/18

DOCKET NO.  10-44 407	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Pension Management Center 
in Milwaukee, Wisconsin


THE ISSUE

Entitlement to VA death pension benefits for accrued benefits or substitution purposes.



ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran had active service from June 1961 to June 1965. He died in November 2008; his then surviving spouse (B.P.) filed a claim for entitlement to VA death pension benefits. She died in January 2017, during the pendency of the appeal. The current appellant is her brother, who was substituted for the original appellant in her appeal. See 38 U.S.C. § 5121A.

This case came to the Board of Veterans' Appeals (Board) on appeal from a May 2009 RO decision that in pertinent part, denied entitlement to service connection for the cause of the Veteran's death and denied entitlement to death pension benefits. A notice of disagreement was received from the appellant in June 2009 as to both issues, but the RO only promulgated a statement of the case as to the issue of entitlement to service connection for the cause of the Veteran's death.

In February 2014, the Board denied entitlement to service connection for the cause of the Veteran's death, and remanded the death pension claim to the Agency of Original Jurisdiction (AOJ) for issuance of a statement of the case, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). An appeal to the Board consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal (VA Form 9 or equivalent). 38 U.S.C. § 7105(a) (2012); 38 C.F.R. § 20.200 (2017).  

The AOJ promulgated a statement of the case as to the death pension claim in February 2015. The appellant did not thereafter submit a VA Form 9, but in March 2015, a VA Form 646 (statement of accredited representative in appealed case) was received from her representative. The case was then returned to the Board. 

In August 2015, the Board remanded this case to the AOJ for issuance of a corrected statement of the case, noting that the February 2015 statement of the case contained an incorrect analysis of the claim. 
Subsequently, a corrected statement of the case was sent to the current appellant in October 2017, but a timely substantive appeal was not received from him. In February 2018, the AOJ notified the appellant that the case was being returned to the Board. 

The Board finds that although a substantive appeal has not been received from the original appellant or the substituted appellant, the death pension issue has been treated as it were perfected, and as such, is on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived objection to untimeliness of a substantive appeal by taking actions which led the Veteran to believe that an appeal had been perfected).


FINDING OF FACT

The appellant has not provided evidence of B.P.'s financial status during the pendency of the appeal, and there is no evidence of record showing the appellant's income and net worth levels.


CONCLUSION OF LAW

The criteria for death pension benefits have not been met. 38 U.S.C. §§ 1503, 1541 (2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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).

Death pension benefits are available to a Veteran's surviving spouse as a result of the veteran's nonservice-connected death. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (b)(4). Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, 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. 38 U.S.C.A. §§ 101 (8), 1521(j), 1541(a); 38 C.F.R. § 3.3 (b)(4).

Death pension benefits may only be paid if the appellant's income is below a certain amount, called the maximum annual pension rate (MAPR). See 38 U.S.C. § 1541; 38 C.F.R. § 3.23. In determining income for purposes of entitlement to death pension, payments of any kind from any source are counted as income during the 12-month period in which received unless specifically excluded under 38 C.F.R. § 3.272. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. If B.P.'s income was higher than the MAPR, after allowable deductions (such as a certain amount of medical expenses), she would not be entitled to any pension. 38 U.S.C. §§ 1521, 1541; 38 C.F.R. §§ 3.3 (b)(4), 3.271, 3.273. 

Under 38 U.S.C.§ 5121A, substitution of an appellant is possible in the case of the death of a claimant who, such as B.P. in the instant case, dies on or after October 10, 2008. A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 

Accrued benefits are defined as periodic monetary benefits authorized under law administered by VA, to which a payee was entitled at his death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a); Ralston v. West, 13 Vet. App. 108, 113 (1999). Upon the death of a widow or remarried surviving spouse, accrued benefits are paid to the children of the deceased Veteran. 38 U.S.C. § 5121 (a)(3); 38 C.F.R. § 3.1000 (a)(2). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121 (a)(6); see also Youngman v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012) ("No other categories of payee at death are provided in the statute."). Applicable law does not include fiduciaries, estates, or executors of estates among the persons eligible to receive accrued benefits.

In May 2017, the current appellant filed an application to substitute for B.P. in her appeal, stating that he is her brother, and that he paid her burial expenses in the amount of $8,743.05, and attorney fees for the probate of her will. He stated that he was the only surviving relative of B.P. He also submitted court records showing that he was the executor for her estate. He enclosed a copy of a check showing that he paid $1,500.00 to an attorney for probate of B.P.'s will. 

A photocopy of the bill for B.P.'s funeral expenses from the funeral home reflects that the total cost was $8,834 (the cents were cut off in the photocopy). The bill reflects that $91 was paid by credit card in January 2017, and the remaining balance was $8,743.

In June 2017, the RO determined that the appellant can be recognized as the proper substitute appellant for B.P. in the appeal for death pension benefits. 

A June 2017 report of general information reflects that the funeral home informed a VA employee that the total funeral expenses for B.P. were $8,834.00, the appellant paid $91.00 of the funeral expenses, and the balance of $8,743.00 was paid by B.P.'s life insurance. The appellant was the beneficiary of the life insurance policy. 

There is an indication that the original appellant did not initially intend to claim a VA death pension, as she did not complete the questions regarding her financial status and income in her December 2008 VA Form 21-534 (Application for DIC, Death Pension and Accrued Benefits by a Surviving Spouse or Child), and wrote "N/A" [not applicable] in that section of the form. However, in her June 2009 notice of disagreement, she asserted that she had no income to speak of, and her medical expenses and the funeral expenses should have been enough for entitlement to death pension benefits.

In January 2017 and June 2017 letters to the appellant and substituted appellant, the AOJ requested additional information regarding the surviving spouse's income, unreimbursed medical expenses, and net worth for the initial year period of November 5, 2008 to November 30, 2009, as well as calendar years 2009 through 2016. The appellant was also asked to provide the marital histories of the surviving spouse and the Veteran, to indicate whether the surviving spouse ever remarried following the Veteran's death, and to indicate whether the surviving spouse paid any just debts or expenses of the last illness and burial of the deceased Veteran. No response was received from the appellant. 

The AOJ denied the appellant's claim as he failed to provide information regarding B.P.'s income, exclusions, deductible expenses, and net worth so that VA could determine whether her income or net worth exceeded the amount that would qualify her for death pension benefits. To date, he has not supplied this information. 

It is undisputed that the original appellant was the Veteran's surviving spouse, and thus, an eligible claimant. See 38 U.S.C. §§ 101 (3), 103, 1541; 38 C.F.R. §§ 3.1 (j), 3.50(b). It is also undisputed that the Veteran had qualifying wartime service during the Vietnam era. See 38 U.S.C. §§ 101 (11), 1521(j); 38 C.F.R. § 3.3 (a)(3), (b)(4). Accordingly, the appellant's case turns on whether B.P. fell within the annual income and net worth limits. In this instance, the appellant has not provided evidence that B.P.'s income was below the MAPR and that her net worth was not excessive such that she was eligible to receive a death pension. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "the duty to assist is not always a one-way street"). Thus, as the appellant has not provided the information necessary to substantiate the claim, there is no basis upon which the claim for nonservice-connected death pension can be paid, and the appeal is denied. 

A preponderance of the evidence of record is against the claim, and the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 


ORDER

Entitlement to VA death pension benefits, for accrued benefits or substitution purposes, is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs