Citation Nr: 20037590 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 15-19 284 DATE: June 2, 2020 ORDER Entitlement to nonservice-connected death pension (survivor's pension) benefits is denied. REMANDED Issue of entitlement to service connection for cause of the Veteran's death is remanded. FINDINGS OF FACT 1. The Appellant’s countable income for her initial annualized period from April 30, 2014, to April 30, 2015, exceeds the maximum annual income for eligibility for death pension benefits. 2. The Appellant did not respond to VA’s request for eligibility verification reports for her claim of entitlement to death pension benefits for the period since April 30, 2015. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected death pension (survivor’s pension) benefits have not been met. 38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272, 3.273, 3.274, 3.277 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1951 to January 1953. The Veteran passed away in September 1999. The Appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2014 determination by the VA Pension Management Center in St. Paul, Minnesota. See September 2014 Notice of Disagreement (NOD); April 2015 Statement of the Case (SOC); June 2015 Substantive Appeal (VA Form 9). The Appellant testified before the undersigned Veterans Law Judge during a January 2019 hearing. See January 2019 Hearing transcript. The Appellant’s son in law, L W, also testified. See id. In April 2019, the Board remanded the claims for further development, including an opinion from a VA examiner for the Veteran’s cause of death. April 2019 Board decision. After further development, the Agency of Original Jurisdiction (AOJ) continued its denial of the Appellant’s claims. April 2020 Supplemental Statement of the Case. The case is now back before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to nonservice-connected death pension (survivor’s pension) benefits. The Appellant filed an April 2014 claim for Dependency and Indemnity Compensation (DIC) and death pension benefits as a surviving spouse. April 2014 VA 21 534EZ. As discussed in more detail below, the claim for DIC benefits based on entitlement to service connection for cause of the Veteran’s death is remanded for further development. As for death pension benefits, they are generally available for surviving spouses from a Veteran’s non-service connected death. 38 U.S.C. § 1541(a). A surviving spouse is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). The surviving spouse must also meet specific income and net worth requirements. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4)(iii). Here, the evidence shows that the Veteran served for more than 90 days and during a period of war. See DD Form 214. In resolving any reasonable doubt in favor of the Appellant, the Board finds that her net worth would not bar her from death pension benefits based on her report of having $500 in stock, bonds, or mutual funds and continuing to pay a mortgage on her home. April 2014 VA Form 21 534EZ; September 2014 NOD. The question remaining for the Board is whether the Appellant meets the specific income requirements for each annualized period on appeal. In determining a surviving spouse’s annual countable family income, payments of any kind from any source shall be counted as income during the 12 month annualization period in which it was received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272(a). Income includes recurring income, irregular income and nonrecurring income. 38 C.F.R. § 3.271. Recurring income means income which is received or anticipated in equal amounts and at regular intervals (e.g., weekly, monthly, quarterly, etc.) and which will continue throughout an entire 12-month annualization period, such as gross income from salary or wages. 38 C.F.R. § 3.271(a)(1). The amount of recurring income for pension purposes will be the amount received or anticipated during a twelve month annualization period. Id. Irregular income means income which is received or anticipated during a 12 month annualization period but received in unequal amounts or at irregular intervals. 38 C.F.R. § 3.271(a)(2). The amount of irregular income for pension purposes will be the amount received or anticipated during a 12-month annualization period following initial receipt of such income. Id. Nonrecurring income means income received or anticipated on a one-time basis during a 12-month annualization period (e.g., an inheritance). 38 C.F.R. § 3.271(a)(3). Pension computations of income will include nonrecurring income for a full 12-month annualization period following receipt of the income. Id. Fractions of dollars will be disregarded in computing annual income. 38 C.F.R. § 3.271(d). Exclusions from income are listed at 38 C.F.R. § 3.272(g)(1)(iii) and include medical expenses in excess of five percent of the maximum income rate allowable that have been paid or will be paid by the surviving in the same 12-month annualization period. Whenever there is a change in the maximum annual pension rate, or in the surviving spouse’s family income, the monthly rate of pension payable shall be adjusted effective as of the date of change. 38 C.F.R. § 3.273. If the Appellant’s countable income exceeds the applicable income limits for pension benefits, or Maximum Annual Pension Rate (MAPR), then pension benefits cannot be paid. See 38 C.F.R. § 3.23(b). For the initial annualization period, income will be counted starting from the date of initial eligibility for death pension benefits through the end of the twelfth month from initial eligibility. See 38 C.F.R. § 3.271. Thereafter, the 12 month annualization period is generally based on the calendar year. In this case, the Appellant’s initial 12 month annualization period is from her April 30, 2014, claim date through April 30, 2015. The evidence supports that the Appellant received monthly Title II Social Security Administration (SSA) benefits of $1119 and separate monthly retirement benefits of $145 and $105. See April 2014 VA Form 21 534EZ; April 2020 SSA Profile and Benefits Data. The Appellant reported medical expenses of $111 for Medicare, $187 for private medical insurance, and $20 for travel. December 2014 Medical expense report. The Appellant testified to a yearly $100 deductible with her private insurance. January 2019 Hearing transcript. The Appellant also reported $600 of unreimbursed expenses, but this was not considered in determining countable income because it was paid April 1, 2014, which is prior to the Appellant’s initial annualization period. See April 2014 VA Form 21 534EZ. The Board recognizes that April 2020 SSA Profile and Benefits Data shows that the Appellant received monthly SSA benefits of $1223 or $1243 per month from April 30, 2014, to April 30, 2015, and not $1119 that she reported. April 2020 SSA Profile and Benefits Data. It is also unclear if the Appellant’s reported medical expenses are monthly or one-time expenses. See December 2014 Medical expense report. However, in resolving any reasonable doubt in favor of the Appellant, the Board finds the Appellant had $16434 of recurring income and $3916 of unreimbursed medical expenses that can be excluded from countable income for her initial 12 month annualization period. Based on the evidence above, the Board finds that the Appellant had countable income of $12518 during the initial 12 month annualization period. The MAPR $8,630 for the period from April 30, 2014, to April 30, 2015. See Survivors Pension Rate Tables – Effective 12/1/13, https://www.benefits.va.gov/PENSION/rates_survivor_pen13.asp (last visited May 28, 2020). Since evidence shows that the Appellant’s countable income of $12518 exceeds the MAPR of $8630, the Board finds that the Appellant was not entitled to death pension benefits during the initial 12 month annualization period from April 30, 2014, to April 30, 2015. As for the period on appeal since April 30, 2015, the AOJ notified the Appellant about the applicable exclusions from income for VA income counting purposes and requested that she submit Eligibility Verification Reports and Medical Expense Reports per the Board’s April 2019 remand directives. See August 2019 MAP-D Development letter. If VA requests that a claimant or beneficiary submit an eligibility verification report, but he or she fails to do so within 60 days of the date of the VA request, the Secretary shall suspend the award or disallow the claim. 38 C.F.R. § 3.277(d). Unfortunately, the Appellant has not submitted the requested Eligibility Verification Reports within the 60 day timeframe. The Appellant’s claim must, thus, be denied. In addition, based on the available evidence, the Board finds that the Appellant’s countable income would have exceed the applicable MAPR for each 12 month annualized period since the initial annualization period. The MAPR, was $8485 for 2015, $8656 for 2016, $8830 for 2017, $9078 for 2018, $9224 for 2019 and $9224 for 2020. See VA Survivors Pension benefit rates, https://www.va.gov/pension/survivors-pension-rates (last visited May 28, 2020). The evidence supports that the Veteran received total Title II SSA benefits of $14937 in 2015, $14937 in 2016, $14976 in 2017, $15276 in 2018, $15702 in 2019, and $15955 in 2020. Based on the available evidence of record, the Board finds that the Veteran continued to have yearly excludable medical expenses of $3916, which would result in countable income of $11021 in 2015, $11021 in 2016, $11060 in 2017, $11360 in 2018, $11786 in 2019, and $12079 in 2020. The Board is sympathetic to the Appellant’s statements, her testimony and her son in law’s testimony during the January 2018 hearing, and the statement from her clinical therapist C.C.S., LICSW, that the Appellant has financial hardships. See September 2014 NOD; October 2014 Private medical treatment record; January 2019 Hearing transcript. Unfortunately, only the exclusions listed at 38 C.F.R. § 3.272 can be considered in determining the Appellant’s countable income for entitlement to death pension benefits. The exclusions include unreimbursed medical expenses, but not living expenses such as food and mortgage payments. See 38 C.F.R. § 3.272. The Board finds that the preponderance of the evidence is against finding that entitlement to death pension (survivor’s pension) benefits is warranted. REASONS FOR REMAND Issue of entitlement to service connection for cause of the Veteran's death is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for cause of the Veteran’s death, because no VA examiner has opined on whether the Veteran’s liver ailment and jaundice noted during service are signs or symptoms that the Veteran’s leukemia, which caused his death, was incurred during service. In its April 2019 decision, the Board noted that the service treatment records show the Veteran was treated for a liver ailment during service. April 2019 Board decision. The Board also noted that the Appellant testified that the Veteran had “yellow jaundice” in service, he was treated for yellow jaundice symptoms and “something to do with his [his] blood,” and that these symptoms continued until his leukemia diagnosis in 1998. Id. The Board remanded the claim of entitlement to service connection for the Veteran’s cause of death for a VA examiner’s opinion as to whether the evidence supports that it is at least as likely as not the Veteran’s fatal, chronic granulocytic leukemia had its onset in, or is otherwise related to, service, including his complaints/treatment for a liver ailment. Id. On remand, the AOJ obtained a January 2020 VA examiner’s opinion for the Veteran’s cause of death. The VA examiner opined that it is less likely than not that the Veteran’s chronic granulocytic leukemia was incurred in or caused by service because “chronic granulocytic leukemia is not medically known to be caused by liver disease.” January 2020 VA examination medical opinion. However, the examiner did not consider and discuss whether the Veteran’s liver ailment noted in service and the Appellant’s testimony that the Veteran was treated for yellow jaundice and “something to do with [his] blood” were signs or symptoms of his leukemia that was later diagnosed in 1998. The Board, thus, finds that an addendum opinion by a VA examiner is needed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s chronic granulocytic leukemia. If possible, obtain the same medical professional who provided the January 2020 VA examination medical opinion. The medical professional should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic granulocytic leukemia began in (or is otherwise related to) the Veteran’s military service? The examiner should specifically consider and discuss whether the service medical record showing that the Veteran had a liver ailment during service and the Appellant’s testimony that the Veteran was treated for yellow jaundice and “something to do with [his] blood” with symptoms up through his 1998 diagnosis for chronic granulocytic leukemia, were signs or symptoms of his chronic granulocytic leukemia that suggest it was incurred during service. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. 2. If chronic granulocytic leukemia is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explained why that is so. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.