Citation Nr: A20003567 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 191231-52178 DATE: March 26, 2020 ORDER Entitlement to death pension is denied. REMANDED Entitlement to dependency and indemnity compensation (DIC), to include based on service connection for the cause of the Veteran’s death is remanded. Entitlement to accrued benefits is remanded. FINDING OF FACT The appellant’s countable annual income for VA pension purposes is in excess of the established income limit for receipt of payment for nonservice-connected death pension. CONCLUSION OF LAW The criteria for entitlement to payment of nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 1542, 5107; 38 C.F.R. §§ 3.3, 3.24, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in November 2018. The appellant is his surviving spouse. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. These matters are before the Board on appeal from a September 2019 notification letter. In November 2019, the appellant submitted a Decision Review Request: Board Appeal (Notice of Disagreement) and elected a hearing before a Veterans Law Judge. In December 2019 the appellant withdrew her request for a Board hearing. Accordingly, the Board will consider the evidence of record as of the date of the September 23, 2019 notification letter. In the September 2019 notification letter, the Agency of Original Jurisdiction (AOJ) found that the Veteran met the minimum active duty requirement to qualify for pension, that he had had wartime service, and that his character of service met the requirement to qualify for pension. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). The Board acknowledges the appellant’s statements that her claim is not for pension, but for “widow’s benefits.” However, as the appellant’s description of the benefit she seeks is ambiguous, the Board has liberally construed her claim as including death pension, DIC and accrued benefits. The appellant is advised that, to the extent she seeks a continuation of her husband’s retired pay, the Veteran’s retired pay is not a benefit which is administered by VA. Entitlement to death pension is denied Death pension is available to the “surviving spouse” of a Veteran because of a nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C. §§ 101, 1521(j), 1541; 38 C.F.R. §§ 3.3 (b)(4), 3.23(a)(5), (d)(5). Basic entitlement to such 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. See 38 U.S.C. § 1521 (a), (b); 38 C.F.R. § 3.3 (a)(3). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and 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). Countable income consists of payments of any kind from any source received during a 12-month annualization period (e.g., a year), unless specifically excluded. Countable income expressly includes gross salary or wages of the claimant. Social Security Administration (SSA) and VA benefits (other than VA pension benefits) also constitute countable income, as they are not specifically excluded. See 38 C.F.R. §§ 3.271, 3.272. In determining annual income for pension purposes, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) are generally counted as income during the 12-month annualization period in which received. Fractions of dollars will be disregarded in computing income; and only those amounts that are listed in 38 C.F.R. § 3.272 may be excluded from countable income for determining entitlement to improved pension. 38 U.S.C. § 1503; 38 C.F.R. §§ 3.271, 3.272. Unreimbursed medical expenses paid by the surviving spouse on her own behalf, in excess of 5 percent of the applicable maximum annual pension rate or rates for the spouse as in effect during the 12-month annualization period in which the medical expenses were paid are excluded from income. 38 C.F.R. § 3.272 (g)(2). For the purpose of determining initial entitlement, 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). In her July 2019 application for pension, the appellant reported $1044 gross monthly income and no unreimbursed medial or other expenses. Results of a September 2019 Social Security Administration (SSA) inquiry revealed Social Security income of $1179.50 per month, with a Medicare premium deduction of $135.50. An inquiry with the Defense Finance and Accounting Service (DFAS) indicated that the appellant also received a Survivor Benefit of $307.58 monthly. Her gross annual income, minus eligible medical expenses was $16,671. The maximum annual pension rate for a surviving spouse with no dependents during the claim period was $9,078. Unfortunately, the evidence indicates that the appellant’s income exceeded the income limit set by law; accordingly, entitlement to death pension must be denied. Death pension is designed to provide qualifying low-income claimants with a minimum level of income, and the amount is set by law. 38 U.S.C. § 1541. While the Board is sympathetic to the appellant’s loss and recognizes the Veteran’s honorable service to his country, it is bound by the law and regulations governing the payment of VA benefits. If the appellant’s income ever falls below the applicable maximum pension rate, based on loss of income, or on paid, unreimbursed, medical expenses (most of which may be deducted from income), or both, she is free to re-apply for death pension benefits. Based on the evidence of record, the appellant’s income is above the maximum allowable for death pension benefit purposes. In these circumstances, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to DIC and accrued benefits At the time of the September 2019 notification letter on appeal the record is silent for any attempt by the AOJ to secure Federal records relevant to the appellant’s claims for DIC and accrued benefits. In particular, there is no indication that the AOJ requested the Veteran’s DD-214s, military personnel records or service treatment records. These records are potentially relevant to the appellant’s claim for death and indemnity compensation because, in July 2019 correspondence the appellant’s brother asserted that the Veteran served during the Vietnam era and the Veteran’s death certificate indicates that he died of metastatic lung cancer, a condition which is presumptively related to herbicide exposure. 38 C.F.R. § 3.309 (e). With regard to the claim for accrued benefits there is no evidence that the AOJ has attempted to obtain any prior application or award of VA benefits, to include any applicable rating decision code sheets or other records regarding unpaid benefits at the time of the Veteran’s death. VA’s duty to assist requires it to make as many requests as necessary to secure relevant federal records. See 38 U.S.C. § 5103A (b)(1); 38 C.F.R. § 3.159 (c)(2) (stating that VA will end its efforts to obtain federal records only if it concludes that the records sought do not exist or that further efforts to obtain those records would be futile). The AOJ’s failure to attempt to secure potentially relevant Federal records constituted a duty to assist error prior to the September 2019 notification letter on appeal. Remand is required to correct this error. (Continued on the next page)   The matters are REMANDED for the following action: Request any and all Federal records relevant to the appellant’s claims for DIC and accrued benefits, to include the Veteran’s DD-214s, military personnel records and service treatment records, as well as all prior applications and awards of VA benefits. If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.