Citation Nr: 21003903 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-06 252A DATE: January 25, 2021 ORDER Entitlement to nonservice-connected death pension is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT The appellant’s countable income exceeded the Maximum Pension Rates for purposes of entitlement to a nonservice-connected survivor pension. CONCLUSION OF LAW The criteria for entitlement to a nonservice-connected survivor pension have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.262, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1958 to November 1978. He died in February 2010. The Appellant is his surviving spouse. This case has a long procedural history.  The appeal was most recently before the Board in March 2020 when it was remanded for further development.  The Board finds there has been substantial compliance with the remand directives and the Board will proceed to adjudication. Stegall v. West, 11 Vet. App. 268 (1998).    Entitlement to nonservice-connected death pension The appellant contends that she is entitled to nonservice-connected survivor pension. 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 (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). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503 (a); 38 C.F.R. § 3.271 (a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were “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 surviving spouse received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. For the purpose of determining initial entitlement, or 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 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). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273 (b)(2). The Appellant filed her claim for entitlement to survivor pension in March 2010. She reported she had one minor dependent. At the time of filing the Appellant reported a monthly income of $732 from social security and that she had paid $4,394.79 in burial expenses for the Veteran. A SSA Inquiry identified the Appellant had a monthly income of $960.50 a month and $11,526 a year, the Veteran’s daughter received $7,920 a year in SSA benefits, and she had family medical expenses of $1,158. The evidence demonstrates that at the time of filing the Appellant had an annual income above the MAPR. Based on the available information the Board notes that for 2010 the Appellant’s income was $19,446, and subtracting her medical and burial expenses, her countable income was $14,413. This exceeds the MAPR income limit of $10,385 for a surviving spouse with 1 dependent for 2010. (See https://www.benefits.va.gov/PENSION/rates_survivor_pen09.asp). Additionally, communications from SSA documenting changes in the appellant’s monthly benefits were as follows: $1183 in January 2016, $1187 in December 2016, $1211 in January 2017, $1245.50 in December 2018, $1264.60 in December 2019. Such monthly income continued to result in annual incomes in excess of the MAPR limit for (accordingly) surviving spouse with no dependents for each respective year. (See https://www.va.gov/pension/survivors-pension-rates/). Based on the evidence, the Board finds that for the entire appeal period the Appellant’s income exceeds the maximum countable income for nonservice-connected death pension benefits. The Appellant is thus precluded from receiving nonservice-connected death pension benefits. See 38 C.F.R. § 3.23 (a)(5). While the Board is sympathetic to the appellant’s request, the law is dispositive; death pension benefits may not be awarded in cases where a claimant’s annual income exceeds the applicable maximum annual pension rate. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of service connection for cause of the Veteran’s death. Another remand is required. Stegall, 11 Vet. App. at 271. The Board remanded the claim to obtain an advisory opinion as to whether the Veteran’s service-connected anxiety neurosis caused or contributed to his death. While the July 2020 VA examiner offered a negative opinion, the rationale is inadequate because it was based solely on a finding that the Veteran had not received any treatment for his psychiatric disorder for many years prior to his death. However, the Appellant has asserted that the Veteran abused alcohol as a way to handle his psychiatric symptoms, and the VA examiner identified that the Veteran’s alcohol abuse resulted in physical symptoms prior to his death. Accordingly, a new opinion is necessary as to whether his service-connected anxiety neurosis caused his alcohol abuse and if so, whether his alcohol abuse caused or contributed to his death. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the July 2020 VA advisory opinion regarding the Veteran’s cause of death, (or from another appropriate provider if the July 2020 examiner is unavailable).  Copies of all pertinent records, including this remand, must be made available to the examiner for review.  Based on the review of the record, the examiner should answer the following:   (a.) Is it at least as likely as not, that the Veteran’s alcohol abuse was caused or related to his service-connected anxiety neurosis? Why or why not? (b.) If the answer to (a) is yes, is it at least as likely as not that the Veteran’s acute respiratory failure, coronary artery disease, hypertension, or diabetes were caused or aggravated by (defined as any increase in disability) the Veteran’s alcohol abuse or his anxiety neurosis? Why or why not? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.   M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.