Citation Nr: 20004902 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 18-47 988 DATE: January 23, 2020 ORDER Entitlement to nonservice-connected death pension benefits is denied. Entitlement to accrued benefits is denied. REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. FINDINGS OF FACT 1. For the relevant period on appeal, the appellant’s countable annual income exceeds the maximum annual death pension rate (MAPR) that applies to a surviving spouse with no dependent children. 2. At the time of the Veteran’s April 2017 death, there were no VA benefits to which the Veteran was entitled, which were due an unpaid, and a claim for VA benefits was not pending at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 1503, 1521, 1541, 5312; 38 C.F.R. §§ 3.2, 3.3, 3.21, 3.23, 3.271, 3.272, 3.274, 3.275. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.2, 3.3, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1960 to November 1967, and in the United States Navy from April 1968 to January 1970, and from April 1970 to June 1991. For his meritorious service, the Veteran was awarded (among other decorations) the Antarctic Service Medal and the National Defense Service Medal. The Veteran died in April 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to nonservice-connected death pension benefits. Nonservice-connected death pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death. 38 U.S.C. § 1541(a). 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 specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 C.F.R. § 3.3(b)(4). A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of countable income. 38 U.S.C. § 1541; 38 C.F.R. § 3.23. Any countable income of the appellant will reduce the pension benefits, dollar for dollar, by the amount of the income. Thus, if the appellant’s annual income exceeds the maximum payable rate, the entire amount is offset, and the appellant is not entitled to any death pension benefits. The maximum annual rate of improved pension for a surviving spouse is specified by statute and is increased periodically under 38 U.S.C. § 5312. See 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 annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Civilian compensation for injury or death (i.e., disability benefits paid by the Social Security Administration (SSA)) is specifically included as countable income. 38 C.F.R. § 3.271(g). Additionally, wage/salary income, retirement pension benefits from private companies, and retirement income from the SSA are not specifically excluded under 38 C.F.R. § 3.272; such income is therefore included as countable income. Medical expenses in excess of five percent of the applicable MAPR, which have been paid, may be excluded from an individual’s income for the same 12-month period; to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(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, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. Under 38 C.F.R. § 3.272, the following shall also be excluded from countable income for the purpose of determining entitlement to nonservice-connected death pension benefits: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; and joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner). The Veteran served for 90 days or more, part of which was during a period of war; and therefore, had the requisite service for the award of death pension benefits to his surviving spouse; however, the appellant does not meet the specific income requirement. Therefore, she is not entitled to death pension benefits. The Veteran died in April 2017. The appellant has not remarried and does not have any dependents. The MAPR are specified in 38 U.S.C. §§ 1521 and 1541 and increase from time to time under 38 U.S.C. § 5312. The rates of death pension benefits are published in tabular form in the Veterans Benefits Administration Manual M21-1 (M21-1) and are given the same force and effect as if published in Title 38 of the Code of Federal Regulations. 38 C.F.R. § 3.21. Applicable to the present case, from December 1, 2016, to November 30, 2017, the MAPR was $8,656.00 (5 percent is $432.00); from December 1, 2017, to November 30, 2018, the MAPR was $8,830.00 (5 percent is $442.00); from December 1, 2018, to November 30, 2019, the MAPR was $9,078.00 (5 percent is $453.00); and beginning December 1, 2019, the MAPR for a surviving spouse with no dependents has been $9,224 (5 percent is $461.00). With respect to the income threshold requirement, the record reflects, that for the initial and subsequent annualization periods starting in May 2017, the appellant has been in receipt of Social Security Administration (SSA) benefits amounts well above the relevant MAPR amounts. In her VA Form 21P-0518-1, the appellant reported that she receives gross monthly income from the Social Security Administration of $1,627.00, as well as gross monthly income from retirement of $947. Although the RO made a calculation error when it determined the appellant’s annual Social Security income to be $20,064.00 by using a monthly amount of $1,672.00, the correct annual amount is $19,524.00. Moreover, the total annual retirement income is $11,364. Accordingly, the appellant’s total annual income is $30,888.00, which exceeds the maximum annual death pension limit set by law. The appellant has not otherwise reported any income or net worth information, and has not provided any evidence of eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for death pension purposes. Based on the foregoing, the Board finds that, for the initial and subsequent annualization periods pertinent to this appeal, the appellant’s countable income has exceeded the MAPR by substantial amounts. Accordingly, the appellant does not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), nonservice-connected death pension is, therefore, not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to accrued benefits. Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which that individual was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). There is no basis for an accrued benefits claim, unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Application for accrued benefits must be filed within one year after the date of death. In this case, at the time of the Veteran’s death, there were no VA benefits which were due and unpaid. The Veteran did not otherwise have any claim for VA benefits pending at the time of his death. Accordingly, this is a case where the law dispositive. Entitlement accrued benefits is precluded because there were no VA benefits to which the Veteran was entitled, which were due an unpaid, and a claim for VA benefits was not pending at the time of the Veteran’s death; thus, the Board must deny this claim. As the disposition of this issue is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Entitlement to service connection for the Veteran’s cause of death is remanded. The appellant, through her representative, asserts that the Veteran was exposed to ionizing radiation while serving at McMurdo Station in Antarctica. See May 2019 Correspondence. In this regard, the appellant’s representative has submitted a September 2017 technical report by the Defense Threat Reduction Agency entitled “Upper-Bound Radiation Dose Assessment for Military Personnel at McMurdo Station, Antarctica, between 1962 and 1979.” At the time of his death, the Veteran was service connected for hypertension, rated as 10 percent disabling, and non-displacement fracture left elbow and non-displaced fracture right elbow, both rated as noncompensable. The Veteran’s death certificate lists myelodysplastic syndrome as the primary cause of his death. Although myelodysplastic syndrome is not one of the presumptively service-connected diseases specific to radiation-exposed veterans under 38 C.F.R. § 3.309(d)(2), leukemia is listed. Myelodysplastic syndrome is also known as pre-leukemia. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1864 (31st ed. 2007). The Veteran’s service medical and personnel records have been obtained, and do not include any Record of Occupational Exposure to Ionizing Radiation, but reveal that the Veteran was stationed annually at McMurdo Station during Operation Deep Freeze in the 1970s. The Board finds that no further development for service records is necessary or would provide further benefit. However, the file must now be provided to the Under Secretary for Health for a radiation dose estimate, as required by regulation. 38 C.F.R. § 3.311(a)(2)(iii). With respect to the appellant’s claim that the Veteran’s cause of death was related to his alleged in-service exposure to ionizing radiation, the Board finds a retrospective opinion is also warranted on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Although the Board sincerely regrets the additional delay caused by a remand, the Board cannot make a fully-informed decision on the issue of the Veteran’s myelodysplastic syndrome because proper development of the Veteran’s possible radiation exposure has not yet been done by VA and no VA examiner has opined regarding the nature and etiology of the Veteran’s condition. The matter is REMANDED for the following actions: 1. Develop the appellant’s claim of service connection for the cause of the Veteran’s death as an ionizing radiation-exposure claim in accordance with 38 C.F.R. § 3.311. This should include a dose estimate under 38 C.F.R. § 3.311(a)(2)(iii) and as necessary, review by the Under Secretary for benefits 38 C.F.R. § 3.311(c) if there is a positive dose estimate. 2. Thereafter, forward the claims file to an appropriate clinician for a retrospective opinion. The examiner should review the claims folder, to include this Remand, and provide the following opinion: Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran’s cause of death was etiologically related to his service, to include any confirmed exposure to ionizing radiation? Any opinions expressed must be accompanied by a complete rationale. If an opinion cannot be provided without resorting to speculation, please provide complete explanations of why this is so. In so doing, please explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether you have exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any additional deemed necessary, readjudicate the claim for service connection for the cause of the Veteran’s death. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.