Citation Nr: 1823913 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-24 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Pension Center in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to dependency and indemnity compensation (DIC). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to accrued benefits. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to death pension. ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from October 1972 to October 1974. He died in January 1997, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Center in Philadelphia, Pennsylvania, which denied entitlement to DIC, death pension, and accrued benefits. When this case was before the Board in April 2016, it was remanded for further development. It is now again before the Board for further appellate action. FINDINGS OF FACT 1. In September 1998, the RO denied entitlement to DIC; the appellant did not appeal, nor submit new and material evidence within one year of the denial. 2. Evidence received since the September 1998 decision letter is cumulative and redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to DIC, and does not raise a reasonable possibility of substantiating the claim. 3. In September 1998, the RO denied entitlement to accrued benefits; the appellant did not appeal, nor submit new and material evidence within one year of the denial. 4. Evidence received since the September 1998 decision letter is cumulative and redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to accrued benefits and does not raise a reasonable possibility of substantiating the claim. 5. In September 1998, the RO denied entitlement to nonservice-connected death pension; the appellant did not appeal, nor submit new and material evidence within one year of the denial. 6. Evidence received since the September 1998 decision letter raises a reasonable possibility of substantiating the claim. 7. The appellant's countable income exceeds the maximum annual pension rate payable to a surviving spouse with no dependents. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to DIC. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to accrued benefits. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to reopen the claim of entitlement to nonservice-connected death pension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for entitlement to nonservice-connected death pension have not been met. 38 U.S.C. §§ 1503, 1541 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.24, 3.271, 3.272, 3.273 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Pursuant to the Board's remand, VA's duty to notify was satisfied by a letter dated in February 2017. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service medical and personnel records have been obtained. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Whether new and material evidence was submitted for DIC and accrued benefits The appellant originally filed a claim for DIC in September 1998. The issues of DIC and accrued benefits were denied in a September 1998 decision letter. The appellant did not appeal this decision letter, and it became final. In April 2013, the appellant again filed a claim for DIC, pension and accrued benefits. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Having carefully reviewed the record, the Board finds that new and material has not been submitted to reopen the previously denied claim for service connection for DIC or accrued benefits. The appellant's claim was previously denied because the Veteran did not die during service, did not die of a service-connected disability (the Veteran did not have any service-connected disabilities), and the Veteran was not totally disabled because of service-connected conditions but died of other causes. See December 1998 RO decision letter. Accrued benefits were denied because VA did not owe the Veteran any money at the time of death. The record shows that the Veteran did not have any pending claims before the RO at the time of death. The appellant has not submitted any new argument or evidence pertaining to DIC or accrued benefits besides submitting a new Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child. Since the September 1998 decision letter, evidence added to the record does not demonstrate that any of the DIC and accrued benefits criteria have been met; thus, the evidence added to the record since the September 1998 rating decision is not new and material for the purpose of reopening the appellant's claim. The Board acknowledges that service treatment records and personnel records were recently associated with the claims file. Under 3.156(c), if VA receives or associates with the clams file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. After reviewing these records, the Board does not find them to be relevant. The appellant has made no argument as to how the Veteran's death was related to his military service. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008) ("[T]he Board's obligation to analyze claims goes beyond the arguments explicitly made. However, it does not require the Board to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision."), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). For these reasons, the Board will not reconsider the claim for DIC and accrued benefits. Therefore, the previously denied claim for DIC and accrued benefits cannot be reopened or reconsidered, and the Veteran's petition must be denied. Whether new and material evidence was submitted for pension The appellants claim for nonservice-connected death pension benefits is being reopened. Entitlement to Pension Benefits In general, the surviving spouse of a Veteran is entitled to receive nonservice-connected death pension benefits if the Veteran had qualifying service and 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 applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541 (a); 38 C.F.R. § 3.3 (b)(4). For VA purposes, a marriage is considered valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103 (c); 38 C.F.R. § 3.1 (j). A "surviving spouse" is defined as a person who was the spouse of a Veteran at the time of the Veteran's death, who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse) and, except as provided in section 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person; and has not remarried. 38 C.F.R. § 3.50. Under applicable criteria, payments of death pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272. Exclusions from countable income for the purpose of determining entitlement to pension also include amounts paid for a Veteran's just debts and expenses of last illness and burial; to the extent such burial expenses were not reimbursed by VA. 38 C.F.R. § 3.272. The maximum annual rates of improved pension are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. The rates of death pension benefits are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. Effective December 1, 1996 (just prior to the Veteran's death), the maximum allowable rate for a surviving spouse with no dependents was $8,486. The maximum allowable rate for a surviving spouse with no dependents was thereafter increased on multiple occasions. Effective December 1, 2017, the surviving spouse with no dependents maximum allowable rate for surviving spouse with no dependents was $8,830. Unfortunately, however, the criteria for entitlement to nonservice-connected death pension benefits have not been met because the appellant's countable income has exceeded the maximum annual pension rate for a surviving spouse with no dependents during the period on appeal. In April 2013, the appellant submitted a claim for pension benefits and noted that her gross income was $10,959.00. Effective December 1, 2012, the surviving spouse could not make more than $8,359 yearly. The appellant's yearly income exceeds the Maximum Annual Pension Rate (MAPR). The Board acknowledges that the appellant reported that she recently filed for benefits from the Social Security Administration (SSA) and that it would be effective May 2017. In general, the income limits for pension benefits track Social Security Administration (SSA) benefits exactly. See 38 C.F.R. § 3.27 (providing for automatic adjustment of improved pension when there is a cost-of-living increase for SSA benefits). As such, anyone receiving full Social Security retirement benefits generally cannot receive Improved Pension benefits due to excessive income. Because her income is in excess of the maximum annual pension rate and, absent any indication of additional unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, pension is not payable. The appellant has not provided any evidence that her countable income was lower than the applicable maximum annual rates of improved pension rates during the period on appeal. In summary, the appellant's income exceeds the statutory limits and she is not legally entitled to death pension benefits. The Board acknowledges the appellant's statement that the MAPR should change over time. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104. No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992). (CONTINUED ON NEXT PAGE) ORDER The petition to reopen the claim for DIC is denied. The petition to reopen the claim for accrued benefits is denied. The petition to reopen the claim for nonservice-connected death pension is granted. Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs