Citation Nr: 20006550 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 15-31 662 DATE: January 28, 2020 ORDER Entitlement to nonservice-connected death pension is denied. Entitlement to accrued benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. The appellant’s countable income exceeds the maximum annual pension rate payable to a surviving spouse with no dependents. 2. At the time of his death, the Veteran did not have any accrued benefits or pending claims. CONCLUSIONS OF LAW 1. The criteria for entitlement to nonservice-connected death pension have not been met. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23, 3.24, 3.271, 3.272, 3.273. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 5107, 5121; 38 C.F.R. §§ 3.102, 3.816, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1968 to August 1970. He died in June 2014. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. The VLJ granted a request to held the record open for a 60-day period at the hearing to allow the appellant to submit additional evidence. In November 2019, the appellant was granted another 60-day extension to submit evidence. As no additional evidence or argument was received, the Board will proceed accordingly. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to nonservice-connected death pension For the reasons that follow, the Board finds that entitlement to nonservice-connected death pension benefits is not warranted. As pertinent to this appeal, death pension benefits are available for a surviving spouse pursuant to 38 U.S.C. § 1541(a) and its implementing regulation 38 C.F.R. § 3.3(b)(4). A surviving spouse is entitled to such benefits if two criteria are met. First, the veteran had qualifying service as defined in § 3.3(a)(3)(i), (ii), and (iii). Second, the surviving spouse meets the net worth requirements of § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate (MAPR) specified in §§ 3.23 and 3.24. Pursuant to 38 C.F.R. § 3.271, “[p]ayments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under § 3.272.” Under § 3.272, the following shall be excluded from countable income: welfare; maintenance; VA pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts; and medical expenses (in excess of 5 percent of the MAPR). There is no dispute as to whether the appellant is a surviving spouse or whether the Veteran had qualifying service. 38 C.F.R. § 3.3(b)(4). Thus, the question of whether the appellant is entitled to nonservice-connected death pension rests on whether she meets the net worth and annual income requirements. Id. § 3.3(b)(4)(iii). Both net worth and annual income requirements must be met. The following discussion pertains to the annual income requirement and shows that it is not met. An analysis of the net worth requirement is, therefore, unnecessary. The appellant provided financial information for the year 2015. During the June 2019 Board hearing, it was suggested that she provide updated information, but she has not done so. The 2015 income limit for a surviving spouse with no dependents is $8,630. See Survivors Pension Rate Tables – Effective 12/1/14, available at https://www.benefits.va.gov/PENSION/rates_survivor_pen14.asp. An August 2015 VA Form 21-534 shows the appellant expected to earn a monthly income of $1,172.73 from a job. Annualized, this amounts to $14,072.76 in countable income. The evidence does not suggest the appellant earns any additional income. An October 2015 VA Form 21P-8416 documented medical expenses incurred by the appellant during 2015. Those medical expenses totaled to $1,070.70. They may be deducted from countable income to the extent they exceed 5 percent of the MAPR. Five percent of the MAPR is $431.50. Thus, subtracting that amount from the total medical expenses yields $639.20 in medical expenses that may be deducted from countable income. The adjusted countable income is therefore $13,433.56. The evidence does not show any additional exclusions from countable income. As the appellant’s countable income of $13,433.56 exceeds the MAPR of $8,630, the appellant does not meet the income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii). Accordingly, nonservice-connected death pension is not warranted. 2. Entitlement to accrued benefits For the reasons that follow, the Board finds that entitlement to accrued benefits is denied. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a beneficiary, be paid to the living person first listed below: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000(a). Here, the appellant is the Veteran’s surviving spouse and is therefore entitled to claim any benefits which had accrued at the time of the Veteran’s death. The record reflects that the Veteran died in June 2014. At the time of his death, the Veteran did not have any accrued benefits or pending claims. The Board notes that in September 1978, the Veteran submitted a VA Form 21-4138 in which he asked for reevaluation of his service-connected nerve paralysis and asserted that it was also causing secondary disabilities. Later the same month, the Veteran was sent notice of receipt of his form and informed that he was required to submit evidence in support of the pending claim. If such evidence was not received within a year of the date of the letter, then no benefits would be payable. Review of the record shows the Veteran did not submit such evidence and, therefore, benefits were not payable. The Board also notes that the Veteran’s compensation benefits were properly terminated effective June 2014, the month of his death, and that the appellant was paid the month-of-death payment. See July 2014 notice letter; June 2019 Board Hr’g Tr. 12. In sum, there are no benefits that had accrued at the time of the Veteran’s death. The claim for entitlement to accrued benefits is denied. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran's death is remanded. Remand is required to obtain private medical records. In November 2015, the appellant submitted authorization for VA to obtain medical records from Dr. Clark, a cardiologist, and Dr. Cook. The RO did not attempt to obtain these medical records, which would be pertinent to the claim on appeal. Accordingly, on remand, the appellant should be asked to submit, or once again provide VA authorization to obtain, any pertinent non-VA medical records, to include those from Drs. Clark and Cook. All efforts to obtain such records must be documented, and the appellant should be notified if they are not found. The matters are REMANDED for the following action: Ask the appellant to submit, or authorize VA to obtain, any pertinent non-VA medical records, to include those from Drs. Clark and Cook. If such records are not found, the claims file must be clearly documented to that effect and the appellant should be notified in accordance with 38 C.F.R. § 3.159(e). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mike A. Sobiecki, 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.