Citation Nr: 20002406 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 18-29 939 DATE: January 10, 2020 ORDER Nonservice-connected death pension is denied. REMANDED The claim for service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Appellant’s countable income exceeds the maximum limit for death pension benefits. CONCLUSION OF LAW The Appellant’s countable income is excessive for receipt of pension benefits. 38 U.S.C. §§ 101 (4)(A), 1521, 1542, 5107; 38 C.F.R. §§ 3.3 (b)(4), 3.24, 3.57, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to November 1974, from November 2001 to September 2003, and from April 2005 to April 2008. He passed away in March 2017. The Appellant is his surviving spouse. Entitlement to death pension is denied. The Appellant asserts that she is entitled to non-service-connected death pension. Basic entitlement to pension exists if, among other things, the claimant’s income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (a)(3). The MAPR is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). 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 the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503 (a); 38 C.F.R. § 3.271 (a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were “in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses 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 surviving spouse received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. For the purpose of determining initial entitlement, or resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273 (a). In essence, VA subtracts the total amount of countable income in one year, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273 (b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273 (b)(2). Effective December 1, 2016, the MAPR for an otherwise eligible claimant, without dependent child, was $8,656.00. See 38 C.F.R. § 3.23 (a)(5); see also M21-1 (Survivors Pension Rate Tables) (https://www.benefits.va.gov/PENSION/rates_survivor_pen16.asp). The Appellant submitted a VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, received by VA in April 2017. The Appellant reported that she received $998.00 per month in social security benefits. She submitted two subsequent VA Form 21-534EZ forms, in June and September 2017 and reported social security payments of $1,568.00 and $1,374.00 per month, respectively. She reported unpaid burial expenses in the April and June 2017 submissions, but never reported any medical expenses. She also reported a dependent child, however, she noted that she was a legal guardian of the child and the evidence of record does not support a finding that the child was adopted. Being legal guardians for a child, residing with a child, and being responsible for their financial needs does not, in and of itself, equate to adoption. See O’Brien v. Wilkie, 30 Vet. App. 21, 28 (2018) (holding that the Veteran’s status as the legal guardian of his grandchild was not sufficient to establish that grandchild as his dependent). Thus, the Board finds that for VA purposes, the child is not considered a dependent child. Here, the evidence shows that the Appellant’s income exceeds the amount allowed for pension. At the time of her filing, the Appellant reported receiving $998.00 per month in social security benefits, which amounts to $11,976 ($998 x 12). The Appellant’s income is shown to be $3,320 above the applicable MAPR of $8,656.00. Of note, MAPR was raised to $8,830 in 2017, but the Appellant’s income would still exclude this. The Board notes that the March 2018 statement of the case notes a Medicare premium of $1,383 as an unreimbursed medical expense. After a careful review of the evidence of record, the Board has not been able to find evidence of the Medicare premium payment. However, even if the medical payment were taken into account, the Appellant would still exceed the amount allowed. Only medical expenses in excess of $433.00 can be considered. The medical expense amount exceeds the five percent maximum annual rate for this period, ($8,656.00 x.05 = $433.00). Here, the medical expense of $1,383 minus $433.00 is $950.00. The Appellant’s income of $11,976 minus $950.00 equals $11,026, which is still above the MAPR. In sum, the Appellant’s income exceeded the applicable MAPR for the annualization period, and thus, she is not entitled to payment of nonservice-connected death pension benefits. Therefore, the claim must be denied. See 38 U.S.C. §§ 152, 1541, 5107; 38 C.F.R. §§ 3.271, 272; Zimick v. West, 11 Vet. App. 45, 50 (1998). The Board would like to express that it is extremely sympathetic towards the Appellant’s claim and is deeply appreciative of the Veteran’s military service, including his service during the Vietnam and Gulf Wars. Unfortunately, the weight of the evidence is against her claim for death pension. Here, the Appellant asserts that she had a dependent child at the time she filed her claim. However, the status of legal guardian does not afford her the ability to claim that child as a dependent child. Additionally, the Appellant’s annual countable income exceeds the statutory limit, which precludes the Board from granting her claim. Accordingly, entitlement to death pension is denied. REASONS FOR REMAND Service connection for the cause of the Veteran’s death is remanded. In March 2018, the regional office issued a statement of the case that denied service connection for the cause of the Veteran’s death. The Veteran disagreed with that decision and this appeal ensued. The Board notes that at the time of the Veteran’s death, his only service-connected disability was PTSD. The cause of the Veteran’s death was adenoid cystic carcinoma of the salivary gland. The Appellant asserts that the Veteran was exposed to Agent Orange during the Vietnam War which she believes caused him to develop his salivary gland cancer. The Veteran served in Thailand, where he was stationed at the Royal Thai Air Force Base in Udorn and his DD Form 214 lists his MOS as security specialist and he was a dog handler during the Vietnam War. Thus, the Board concedes that the Veteran is presumed to have been exposed to herbicides while in service. In June 2018, the Appellant submitted an opinion from the Veteran’s treating oncologist. The oncologist opined that he could not prove that Agent Orange was the cause of the Veteran’s salivary cancer, but considered it reasonable to link his cancer to his herbicide exposure during the Vietnam War. The doctor cited to medical literature that found the dioxins related to Agent Orange were secreted in saliva. He also cited to a research study that examined a large group of Korean Veterans, that found an increase in the overall incidence of cancer, but salivary cancer was infrequent in that cohort. Here, the medical opinion is insufficient because the research study cited to by the oncologist did not show that salivary cancer was common in the cohort that was exposed to herbicide agents and the medical opinion did not have a strong rationale as to why it would be reasonable to link the Veteran’s salivary cancer and his herbicide exposure. Additionally, the doctor did not address the relevance, if any, of the Veteran’s long history of smoking. The law presumes service connection for many disabilities for Veterans who were so exposed. See 38 C.F.R. §§ 3.307, 3.309. While carcinoma is not a condition that VA has designated as presumptively linked to exposure to herbicide agents, the National Academy of Sciences, Institute of Medicine, in its most recent Agent Orange Update 11 (2018), noted there was a risk for cancer of the salivary glands, however, it did note that the estimate was very imprecise. Here, Agent Orange Update 11 noted a possible association between exposure to herbicides and the Veteran’s salivary cancer. As such, a remand is required for an examination and medical opinion. The matters are REMANDED for the following action: Obtain a medical opinion to address the etiology of the Veteran’s adenoid cystic carcinoma of the salivary. The examiner should answer the following question: Is it at least as likely as not (50 percent or greater) that the Veteran’s adenoid cystic carcinoma of the salivary is the result of his presumed exposure to herbicide agents? Why or why not? In so doing, the examiner should review the findings of Agent Orange Update 11 (2018), and should also address the relevance, if any, of the Veteran’s many year history of smoking as documented in his medical records. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.