Citation Nr: 1825871 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-31 402A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to all monetary benefits (nonservice-connected pension with aid and attendance) due to the Veteran at the time of his death. WITNESSES AT HEARING ON APPEAL Appellant and Daughter ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran served on active duty in the United States Army Air Corps from January 1946 to September 1947. He died in November 2012; he was not service-connected for any disability. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2014 decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Philadelphia, Pennsylvania. That office issued a Statement of the Case (SOC) in August 2014, and subsequently forwarded the appeal to the Board. The RO in Columbia, South Carolina otherwise has jurisdiction of the claims file. In August 2016, the appellant and her daughter testified at a Travel Board hearing conducted at the Columbia RO before the undersigned. A transcript of that hearing is included in the evidence of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the evidence of record reveals that said record appears in electronic form with approximately the same number of documents appearing in the Virtual VA system as in VBMS. However, there is only a partial overlap between these two sets of documents. The Veteran submitted a claim for nonservice-connected pension in March 2009; he was seeking aid and attendance benefits. In March 2009, the Philadelphia Regional Office and Insurance Center (ROIC) denied the claim based on excess income. On two occasions in September 2010, the Veteran submitted copies of various medical bills dated in 2010. In June 2011, the Veteran submitted a VA Form 21-527, Income-Net Worth and Employment Statement. The Veteran reported income and medical expenses in that document. The evidence of record includes a VA Form 21-0516-1 (Improved Pension Eligibility Verification Report) that the Veteran signed on August 2, 2011. He included information about Social Security benefits he and the appellant received, as well as his private pension benefits and medical expenses for the period from March 2009 to December 2009. He did not mention any wages for the appellant. A letter from the ROIC, dated August 29, 2011, states that the Veteran's claim had been denied and that letter cited to the amount of private pension listed by the Veteran in his August 2011 VA Form 21-0516-1. In November 2011, the Veteran submitted a VA Form 21-4138 in which he stated that he was in need of aid and attendance. A December 2011 ROIC letter to the Veteran informed him that additional information was needed in relation to his income, net worth and unreimbursed medical expenses for March 2009 to December 2009; January 2010 to March 2010; and April 2010 to December 2010. The letter also stated that a letter from the Veteran's caregiver in relation to services rendered and payments received was required. A December 30, 2011 VA Form 21-0820, Report of General Information, reflects that the Veteran's representative called VA to advise that she was submitting corrected information regarding medical expenses reported. The evidence of record contains VA Forms 21-0516-1 signed by the Veteran on December 29, 2011, and covering the periods requested in the December 2011 ROIC letter as well as a letter from the Veteran's caregiver. The information for the period from March 2009 to December 2010 indicates that the Veteran was in receipt of $561 per month from his private pension and that the appellant had earned income in the amount of $7,681.62. The Veteran also reported wages for the appellant in the amount of $5,690.17 for the period from January 2010 to December 2010. He also reported a net worth of $100. A February 2012 VA Form 21-0820 states that the EVR, 8416 and caregiver statement were in Virtual VA. The ROIC issued a rating decision on February 15, 2012, in which the Veteran was determined to be entitled to special monthly pension (aid and attendance) based on his medical condition as of March 12, 2009. On February 16, 2012, an analysis of the Veteran's financial eligibility for special monthly pension was performed. That analysis reflects the use of the financial figures discussed above that were supplied by the Veteran via his representative in December 2011, and shows that the income limit for 2009 was exceeded. However, there was no real analysis of the Veteran's income or expenses for 2010 or for 2011. The evidence of record also reflects that the Veteran had been placed in a hospice as of July 2011. A notice letter from the ROIC, dated February 16, 2012, notified the Veteran that his claim for special monthly pension had been denied because his income, as of March 12, 2009, exceeded the limit set by law. Again, the letter did not discuss the Veteran's income or medical expenses in 2010 or 2011. A March 2012 deferred rating decision indicates that the sitter fees reported by the Veteran did not appear to have been verified. On April 25, 2012, the ROIC sent the Veteran a letter in which he was asked to supply information about his caregiver fees. The ROIC sent a follow-up letter on June 19, 2012. On July 2, 2012, a written response to the June 19, 2012 letter was received by the ROIC from the Veteran's caregiver. A September 2012 income analysis conducted by the ROIC reflects that the Veteran was awarded special monthly pension benefits starting February 1, 2012. The net effect of the award as of generation was listed as $11,984.00; this computes to eight months of a monthly benefit amount of $1,498.00. A September 26, 2012 notice letter from the ROIC informed the Veteran of his entitlement and that he would receive an initial check in approximately 15 days. The letter also stated that the date of the Veteran's original claim (March 12, 2009) could not be used because the financial evidence utilized in making the determination was submitted after December 31, 2011. However, there was no discussion as to why that evidence was not used to calculate benefits for 2010 or 2011. In addition, the letter informed the Veteran that his banking information was needed before March 1, 2013, because no such banking information was currently on file. On November 13, 2012, the Veteran submitted his banking information and stated that he wanted to receive his benefits via direct deposit. The Veteran died a few weeks later. There is nothing in the evidence of record to indicate that the awarded but unpaid benefits due to the Veteran for the months from February 2012 through November 2012 were ever sent to the Veteran's direct deposit bank account. The evidence of record reflects that the appellant was sent a check for the month of the Veteran's death. Indeed, she testified during her August 2016 Travel Board hearing that she had received that month of death check. However, she further testified that no other monies had ever been received by the Veteran or herself. Based on the foregoing, there is confusion as to whether the Veteran's income was ever determined to be excessive for 2010 or 2011 based on the information provided by the Veteran in the forms he submitted, including those he signed on December 29, 2011. In addition, there is nothing in the current evidence of record regarding what, if anything other than the month of death benefit, was ever paid. Thus, the Board finds that the appellant should be afforded a thorough explanation of the calculations made as to the Veteran's income and medical expenses in connection with his claim for special monthly pension benefits between April 2009 and January 2012. In addition, there must be a through accounting of each amount paid in 2012 to the Veteran or paid to the appellant at any time. Upon completion of the audit, a clear and complete memorandum detailing the findings should be forwarded to the appellant. If warranted, the appropriate sums should also be forwarded to the appellant as surviving spouse. Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the agency of original jurisdiction (AOJ) for the following: 1. Please obtain and associate with the claims file all relevant outstanding documents, to include any correspondence from the ROIC or the Columbia RO. 2. Thereafter, please provide the appellant an audit of the Veteran's account in writing, which clearly shows the date the Veteran was determined to be medically eligible for aid and attendance benefits; his income, net worth and medical expenses for each relevant period between April 2009 and January 2012, based on the financial information provided by the Veteran, including in the forms he signed in December 2011; the start date of pension benefit payments; the amount of the pension benefit for each month; and the date each aid and attendance benefit amount was deposited in a bank account or otherwise issued to the Veteran or the appellant. The audit and letter/memorandum must clearly explain to the appellant each of these items and how every amount was calculated. Just as the RO did for the year 2009, the RO must also determine whether the Veteran's income was excessive for 2010 and 2011. 3. A copy of the audit and a copy of the memorandum must be placed in the claims file. If warranted, all appropriate monies must be forwarded to the appellant as surviving spouse. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the appellant a supplemental statement of the case. The appellant must also be provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).