Citation Nr: 19106917 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 16-59 448 DATE: January 30, 2019 ORDER Entitlement to accrued benefits is denied. Entitlement to nonservice-connected survivor pension benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. At the time of the Veteran’s death, service connection was not in effect for any disability, nor was any claim pending before VA. 2. During the entire period on appeal, the appellant’s countable income and net worth have exceeded the maximum annual pension rate (MAPR) and net worth limitations. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 1110, 1310, 5103A, 5107, 5121; 38 C.F.R. §§ 3.303, 3.312, 3.1000. 2. The criteria for entitlement to nonservice-connected survivor pension benefits have not been met. 38 U.S.C. §§ 101, 1503, 1521, 1522, 1541, 5312; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.57, 3.274, 3.725. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to November 1970. He died in May 2012. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Duty to Notify and Assist With respect to the claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015), Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Entitlement to accrued benefits The appellant filed a claim seeking entitlement to accrued benefits. An accrued benefit is a periodic monetary benefit authorized under laws administered by the VA to which a veteran was entitled at the time of his death under existing ratings or decisions, or those based on evidence in the record at the date of death, and due to the veteran but unpaid prior to the last date of entitlement. Accrued benefits will, upon the death of the veteran, be paid to the veteran’s spouse, children, or dependent parent. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. A review of the record does not indicate, nor has it been alleged by the appellant, that the Veteran had a pending claim for benefits at the time of his death or that there were any benefits to which he was entitled but were due and unpaid at the time of his death. 38 C.F.R. § 3.1000. Consequently, the appeal must be denied as there is no legal basis for the payment of accrued benefits. The law is dispositive of the issue and the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Entitlement to nonservice-connected survivor pension The appellant is seeking entitlement to nonservice-connected survivor pension benefits. Nonservice-connected survivor pension benefits are generally available for surviving spouses as a result of a veteran’s nonservice-connected death. 38 U.S.C. § 1541 (a). Basic entitlement exists if the veteran had qualifying wartime service or if the veteran at the time of death was receiving or was entitled to compensation for a service-connected disability based on service during a period of war. Qualifying service is service in the active military, naval, or air service for 90 days or more during a period of war. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.2, 3.3. In the present case, the Veteran had qualifying service of 90 days or more during a period of war; thus, that eligibility requirement is met. It is also a requirement that the annual income of the surviving spouse must not exceed the MAPR specified in 38 U.S.C. § 5312, increased from time to time as published in the Federal Register. 38 C.F.R. §§ 3.3, 3.23. The MAPR is published in the Veteran’s Benefits Administration Manual, M21-1, and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21; see also https://www.benefits.va.gov/PENSION/spousepencalc.asp#countableincome. The MAPR for a surviving spouse with no dependents was $7,933 effective December 1, 2009; $8,485 effective December 1, 2013; $8,630 effective December 1, 2014; and $8,656 effective December 1, 2016. See id. As of December 1, 2018, the net worth limit is $127,061. Id. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable MAPR by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273 (a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271 (c). Income from Social Security Administration (SSA) benefits, to include Social Security disability payments, is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Certain unreimbursed medical expenses may be excluded from countable income for the same 12-month annualization period to the extent they were paid. To be considered, the total expense must be in excess of five percent of the MAPR. 38 C.F.R. § 3.272. Entitlement to pension will be denied, however, when the corpus of a veteran’s estate (and that of any spouse) is such that, under all circumstances, including consideration of the annual income of the veteran, his spouse, and any cohabitating children, it is reasonable that some part of the corpus of such estates be consumed for the veteran’s maintenance. 38 C.F.R. § 3.274 (a). The terms “corpus of estate” and “net worth” mean the market value, less mortgages or other encumbrances, of all real and personal property owned by the claimant except the claimant’s dwelling and personal effects. 38 C.F.R. § 3.275 (b). In determining whether some part of a veteran’s estate should be consumed for maintenance, consideration will be given to the amount of the claimant’s income together with the following: whether the property can be readily converted into cash at no substantial sacrifice; life expectancy; number of dependents who meet the definition of a member of the family; and potential rate of depletion, including unusual medical expenses for the claimant and the claimant’s dependents. 38 C.F.R. § 3.275 (d). The appellant submitted copies of VA Form 21-0518, Eligibility Verification Report, for the years 2013 through 2016. She reported having gross income of approximately $32,841 ($1,688 in social security per month, $1,048 in wages per month) in 2013, $32,778 ($20,568 in social security, $12,210.73 in wages) in 2014, $33,444.42 ($20,916 in social security, $12,528.42 in wages) in 2015, and $33,914.44 ($20,994.80 in social security, $12,999.64 in wages) in 2016. She indicated that, as of August 4, 2017, her net worth was $429,831 in an individual retirement account (IRA) and annuities. The appellant reported having unreimbursed medical expenses of approximately $11,500 in 2014, and amounts greater than 5 percent of the MAPR, but less than $10,000 dollars in 2013, 2015, and 2016. In October 2017, a VA 21-5427, Corpus of Estate Determination, found that the appellant’s net worth was a bar to entitlement to survivors’ pension, because a pension would only serve to build the appellant’s assets for the remainder of her lifetime, given her age, net worth, income, and monthly expenses. Later that month, the appellant submitted lay statements indicating that as of May 12, 2012, her assets were §303,000 in an IRA account. She stated that she took 18,823.53 from this account to pay medical bills and for home repairs, but did not receive monthly income from an IRA, as she was trying to save these assets so that she would be able to retire soon. In November 2017, the RO performed an additional corpus of estate determination. It found, among other things, that a net worth of $303,000 is still a bar for benefits, that the appellant had normal medical expenses to include private medical insurance, and that if benefits were paid, it would only serve to build assets, which is not the intent of the program. After careful review of the record, the Board finds that the appellant does not meet the requirements for a nonservice-connected survivor pension. The appellant’s annual income exceeded the MAPR for each year in which she provided information to support her claim for pension benefits. See 38 C.F.R. § 3.273 (a). This remains true even when her reports of unreimbursed medical expenses are considered. See 38 C.F.R. §§ 3.271, 3.272. In light of the foregoing, the appellant is not entitled to payment of VA nonservice-connected survivor pension benefits because her income has consistently exceeded the legal limit. See Johnson v. Brown, 9 Vet. App. 369, 372 (1996). Furthermore, the appellant reported having a net worth of $429,831 in IRAs and annuities as of August 2017. The Board finds it to be reasonable that some part of that estate should be consumed for the appellant’s maintenance. See 38 C.F.R. § 3.274 (c). Even if the appellant’s IRA assets equaled $303,000 in May 2012, she would still have exceeded the threshold of reasonable net worth limitations as an IRA account can be easily converted to cash at no substantial sacrifice, and used to provide for the appellant’s maintenance. See 38 C.F.R. § 3.275 (d). Although recognizing the Veteran’s service and the appellant’s application for pension, the Board is bound by the laws enacted by Congress and VA regulations. 38 U.S.C. § 7104 (c). In this case, the law passed by Congress specifically prohibits the payment of VA nonservice-connected survivor pension benefits when an appellant’s income exceeds certain levels. Because the appellant’s annual countable income exceeds the statutory limit, her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND The issue of entitlement to service connection for the cause of the Veteran’s death is remanded for further development. The appellant alleges that the Veteran’s service in Vietnam led him to develop myelodysplastic syndrome which caused his death. The Veteran’s death certificate lists the cause of death as sepsis due to graft-versus-host disease due to myelodysplastic syndrome. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. To establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. For a disability to constitute the principal cause of death, it must be one of the immediate or underlying causes of death or must be etiologically related to the cause of death. For a disability to be a contributory cause of death, it must have contributed substantially or materially to cause death; combined to cause death; or aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection between the service-connected disability and the veteran’s death. 38 C.F.R. § 3.312 (b), (c). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides for all Veterans who served in Vietnam during the Vietnam Era. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). If a Veteran was exposed to an herbicide agent during active service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. Notice, 79 Fed. Reg. 20,308 (2014). The United Stated Court of Appeals for the Federal Circuit has determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999); see also Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). VA’s duty to assist includes providing a medical opinion when evidence of record (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 U.S.C § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Initially, the Board notes that the Veteran’s military personnel records, including his Form DD-214, have not been associated with the claims file. The RO has conceded exposure to Agent Orange based on unspecified information in the service treatment records, with resolution of doubt in the Veteran’s favor. Hence, although the Board does not see a basis for this finding, and the Board recognizes that the Court held in Anderson v. Shinseki, 22 Vet. App. 423, 428 (2009) and McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009) that the Board is not bound by favorable findings of the RO, and that the Board's jurisdictional statute, 38 U.S.C. § 7104 (a), "contains no limitations on the Board's ability to review favorable findings," the Board will accept this favorable finding in this adjudication. The Board further notes that VA did not procure a medical opinion in the instant claim. The appellant has alleged that the Veteran served in Vietnam and was exposed to Agent Orange, and that such exposure led to the development of myelodysplastic syndrome, which contributed to the Veteran’s death. Nevertheless, the Board is also mindful of the holdings in Combee and McCartt that, although myelodysplastic syndrome is not on the list of conditions for which VA may grant service connection on a presumptive basis, this does not preclude a finding of service connection on a direct-incurrence basis. See McCartt, 12 Vet. App. at 167. As there are medical records confirming a diagnosis of myelodysplastic syndrome and listing such condition as a contributing cause of death, a RO finding of in-service exposure to Agent Orange, and an allegation that such exposure led to the development of myelodysplastic syndrome, the Board finds that a VA medical opinion is warranted in this case. See McLendon, 20 Vet. App. at 83-86. The matter is remanded for the following action: 1. Obtain a medical opinion from any suitably qualified VA examiner, following review of the Veteran’s claims folder, as to the nature and etiology of the Veteran’s fatal myelodysplastic syndrome. The examiner must note that VA has conceded that the Veteran had service in the Republic of Vietnam, and inform the examiner that exposure to Agent Orange is presumed. The claims file should be made available for review, and the examination report should reflect that such review was completed. The examiner is asked to opine on the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s fatal myelodysplastic syndrome was etiologically related to an in-service injury, event, or disease, including in-service exposure to Agent Orange, whether or not initially demonstrated in service or within one year after service? A complete rationale should be provided for the opinion provided. 3. Thereafter, review the expanded record and readjudicate the issue on appeal. If the benefit sought remains denied, furnish the appellant with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel