Citation Nr: 21001825 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 19-39 065 DATE: January 11, 2021 ORDER Entitlement to VA survivor’s pension benefits is denied. REMANDED Entitlement to service connection for cause of Veteran’s death is remanded. FINDING OF FACT The appellant’s countable income exceeded the applicable maximum annual pension rates. CONCLUSION OF LAW The criteria for entitlement to payment of VA survivor’s pension benefits have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from September 1966 to September 1969. The Veteran died in March 2018. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s December 2018 decision. The Board acknowledges that the appellant, via her representative, submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in August 2020 purportedly seeking review under the Appeals Modernization Act (AMA) appeal process as to the issue of service connection for the cause of the Veteran’s death. However, the appellant perfected her appeal under the legacy appeals process by filing a VA Form 9 in December 2019 following the issuance of the statement of the case (SOC) earlier that month. Moreover, the appellant did not check the SOC/SSOC opt in box on the VA Form 10182 indicating that she was withdrawing her legacy appeal in order to opt into the AMA appeals process. Further, the August 2020 VA Form 101082 was received subsequent to certification to the Board under the legacy system. Hence, the Board does not find that the August 2020 VA Form 10182 was adequate to opt into the AMA appeals process and will decide her appeal under the legacy appeal process. The Board notes that the Veteran filed a claim for service connection for idiopathic interstitial lung disease in December 2017, but the RO had not issued an initial decision on that claim before the Veteran died in March 2018. Moreover, the Veteran did not have an appeal pending before the Board at the time of his death on any other issue. Consequently, although the appellant requested substitution in June 2018, it only relates to the Veteran’s unadjudicated claim filed in December 2017. Therefore, there was no issue before the Board at the time of the Veteran’s death for which substitution was warranted. 1. Entitlement to VA survivor’s pension benefits The appellant is seeking entitlement to VA survivor’s pension benefits. Unfortunately, she has submitted inconsistent information with regards to her income and net worth and, despite being requested to do so, has not provided sufficient evidence to clarify what her income was. Nevertheless, the Board finds that the credible and persuasive evidence indicates that the appellant’s income exceeded the maximum income she is allowed for entitlement to pension benefits. 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(b)(4)(iii). 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 a claimant’s countable annual income. 38 U.S.C. §§ 1503, 1541; 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, one-time lump sum payments or similar income, even if waived) shall be included during the 12-month annualization period in which received, except for income specifically excluded. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271(a), 3.272. Gross income received is counted rather than the amount of the payment a beneficiary receives, except where certain expenses are allowed to be deducted (e.g., necessary operating expenses are deductible from business, farm or professional income and medical, legal or other expenses incident to an injury or death or expenses incident to the collection or recovery of the amount of an award or settlement for an injury or death are deductible from compensation received for an injury or death). The amount of recurring and irregular income anticipated or received by a beneficiary shall be added to determine the beneficiary’s annual rate of income for a 12-month annualization period commencing at the beginning of the 12-month annualization. 38 C.F.R. § 3.273(d). The amount of nonrecurring income (e.g., an inheritance) received by a beneficiary shall be added to the beneficiary’s annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). For purposes of calculating countable income, total income may be reduced by amounts paid by a claimant for unreimbursed medical expenses that are “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 claimant received no reimbursement, such as from an insurance company. However, medical insurance premiums themselves, including Medicare Plan B premiums deducted from Social Security benefits, may be applied to reduce countable income. For the purpose of determining initial entitlement, or for 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 beneficiary’s 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 from the MAPR for that year; then, if a positive amount remains, the rest is divided by 12 to determine the monthly pension benefit. When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount on the effective date of the change, typically December 1st. 38 C.F.R. § 3.273(b)(1). Whenever there is a change in a beneficiary’s countable income, VA will repeat the calculation using the beneficiary’s new countable income effective the date of the change in the amount of income. 38 C.F.R. § 3.273(b)(2). The appellant has submitted multiple statements regarding her income. On her initial application (VA Form 21-534EZ) received in April 2018, she did not complete the income portion of the form. After such information was requested, she submitted a new VA Form 21-534EZ in July 2018 on which she reported income from the Social Security Administration (SSA) of $1,142.00 per month and annual wages and/or salary of $1,868.00. However, in August 2018, she submitted another statement of income on a VA Form 21-535EZ on which she reported monthly income of $1,142.00 from SSA and $1,187.00 from “pension.” She also reported annual wages and/or salary of $1,847.00 also from “pension.” In September 2018, the appellant submitted a new VA Form 21-534EZ on which she reported monthly income of $1,142.00 from SSA and annual wages and/or salary of $1,800.00. However, during a telephone call in January 2019, the appellant reported that she receives no other income other than Social Security. In March 2019, the appellant was sent a duty to assist letter asking for clarification of her income because she had provided it differently in the four previous reports. In response, the appellant called VA in March 2019 and stated she was not seeking pension benefits, only Dependency and Indemnity Compensation. She was advised in letters sent in August and September of 2019 that VA had either denied or did not consider entitlement to pension because of her March 2019 statement indicating she was not seeking pension benefits. In October 2019, the appellant submitted a new VA Form 21-534EZ on which she indicated she was filing for pension only. She also submitted the income and asset statement on VA Form 21P-0969. On these forms, she reported she receives monthly income of $1,174.00 from SSA and $1,876.00 from a retirement pension. Based on this information, the Board finds that the more credible and persuasive evidence indicates the appellant receives income on a monthly basis from two sources: SSA and a retirement pension. The Board acknowledges that, in two of her reports, the appellant indicates receiving an annual wages and/or salary in similar amounts to what she otherwise reported was what she received as her monthly retirement pension payment. Hence, the Board finds that the amount reported as annual wages and/or salary is most likely the appellant’s monthly retirement pension payment and will count that amount as monthly income rather than annual income. Regarding the amount of income she received, information from SSA confirms that the appellant was receiving $1,142.00 per month when she filed her initial complete application in July 2018, which increased to $1,174.00 in December 2018. Hence, the Board will count those amounts as income. As for her retirement pension amount, the Board notes that the appellant reported various amounts of this income ranging from $1,800.00 to $1,868.00. However, on the October 2019 income and asset statement, she reported that this income will increase on July 1, 2020. As this is recurring income, the Board can assume that it previously increased on the same date in 2018 and 2019. In order to prevent a possible overpayment, the Board will count the highest amount reported, or $1,868.00, per month as of July 1, 2018 and $1,876.00 as of July 1, 2019. Based on these amounts, the Board finds that the appellant’s annual income for the initial annualization period beginning in July 2018 when the appellant’s complete application was received was $36,120.00 (i.e., $1,142.00 + $1,868.00 = $3,010.00 x 12 months). The appellant’s increased income for SSA of $1,174.00 is counted as of February 1, 2019 and results in an increase in her annualized income to $36,504.00 (i.e., $1,174.00 + $1,868.00 = $3,042 x 12 months). The appellant’s income also increased in July 2019 to $36,600.00 (i.e., $1,174.00 + $1,876.00 = $3,050.00 x 12 months). The Board further notes that the appellant reported on her July 2018 application that she paid funeral expenses of $4,442.00 in March 2018 for the Veteran’s burial although she did not report such expenses in later applications. In a July 2018 decision, the appellant was awarded VA nonservice-connected burial benefits in the amount of $300.00. As only unreimbursed expenses may be counted, the Board will count $4,142.00 in final expenses paid for the Veteran for one year after July 2018. The appellant has not reported any unreimbursed medical expenses or other expenses allowed to reduce her annual income. Therefore, the Board will allow a deduction from income of $4,142.00 for the 12 months following her initial application (i.e., August 1, 2018 to July 31, 2019). Based on the above numbers, the appellant’s countable income for VA purposes for the initial annualization period is $31,978.00 ($36,120.00 - $4,142.00). As of February 1, 2019, her countable income is $32,362.00 ($36,504.00 - $4,142.00). Finally, her countable income as of July 1, 2019 is $32,458.00 ($36,600.00 - $4,142.00). The final expenses are only counted for one year and, therefore, the appellant’s countable income as of August 1, 2019 is $36,600.00. The MAPR applicable for a surviving spouse with no dependents was as of July 2018 was $8,830.00. The MAPR increased on December 1, 2018 to $9,078.00. Therefore, the appellant’s countable income (which exceeds over $30,000.00) clearly exceeds the maximum income she can have for entitlement to payment of VA survivor’s pension benefits. Hence, the Board concludes that the appellant is not entitled to payment of VA survivor’s pension benefits because her income exceeds the allowable MAPR, and her claim for benefits must be denied. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death is remanded. The appellant seeks entitlement to service connection for the cause of the Veteran’s death. The Veteran’s death certificate indicates that he died from idiopathic interstitial lung disease. He had not established entitlement to service connection for this condition at the time of his death in March 2018. At the time of the Veteran’s death in March 2018, service connection had been established for the following disabilities: posttraumatic stress disorder (PTSD), coronary artery disease, diabetes mellitus with erectile dysfunction, diabetic nephropathy and residuals of a right fifth metacarpal injury. The Veteran’s private treatment records show he was diagnosed to have pneumonia in June 2017 which caused hypoxia and he was placed on home oxygen at the beginning of July 2017. In August 2017, he was diagnosed to have pulmonary hypertension with continued hypoxia. He also underwent a sleep study that resulted in a diagnosis of severe obstructive sleep apnea. He was seen by a pulmonologist for evaluation of his continued dyspnea and persistent infiltrates on X-ray. It was suspected that he had an underlying diffuse parenchymal lung disease present and additional work-up was ordered. In September 2017, he was diagnosed to have idiopathic interstitial lung disease. His respiratory condition continued to worsen until he died in March 2018. “Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.” 38 C.F.R. § 3.312(c)(1). There are two medical opinions in the claims file. A July 2018 VA negative opinion and an August 2020 favorable opinion from an independent medical examiner (IME) submitted by the appellant. Unfortunately, the Board finds that neither of these medical opinions are adequate to decide the appellant’s claim. The VA examiner’s medical opinion is unclear, and it is difficult to determine whether she considered all the Veteran’s service-connected disabilities. In addition, the IME’s opinion is too vague as it does no more than indicate that the Veteran’s service-connected disabilities, along with his nonservice-connected disabilities, affected his overall health (“whole body health picture”) such that it casually shared in producing his death. The IME did not provide any definite opinion providing a causal connection between a service-connected disability and the Veteran’s death or a condition that is secondary to a service-connected disability that caused or contributed to his death. Furthermore, the appellant submitted a personal statement regarding the Veteran’s smoking history and how she believed it was secondary to the Veteran’s service-connected PTSD. Although the IME repeated what the appellant said in his discussion, he did not actually give an opinion that the Veteran’s smoking was secondary to his PTSD and was linked to the lung disease that caused the Veteran’s death. The Veteran’s treatment records show that he was a long-term chronic smoker (reported as anywhere from 30 years to back when he was a teenager) of approximately one to two packs a day until he quit in February 2010, but they do not contain any statements relating the smoking to his PTSD or idiopathic interstitial lung disease. However, this evidence raises the question as to whether the Veteran’s idiopathic interstitial lung disease that caused his death is related to smoking cigarettes secondary to his service-connected PTSD. Therefore, the Board finds that remand is warranted to obtain a new medical opinion that addresses this theory of entitlement as well as just a general opinion as to whether any service-connected disability contributed to the Veteran’s death. The matters are REMANDED for the following actions: (Continued on the next page)   1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran’s service-connected disabilities (whether individually or collectively) caused or contributed to his death. The clinician should specifically consider whether the Veteran’s cigarette smoking was proximately due to or aggravated beyond by his service-connected PTSD and, if so, whether his idiopathic interstitial lung disease is proximately due to or was aggravated by his cigarette smoking. For purposes of any opinion offered, the clinician may presume the credibility of any lay statements relied upon. However, the Board defers any credibility determination as to those statements until final adjudication of the appellant’s claim. 2. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the appellant and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.