Citation Nr: 21005078 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-55 025 DATE: January 28, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for the Veteran’s cause of death; the appeal is granted to this extent only. Entitlement to service connection for the Veteran’s cause of death is denied. Entitlement to non-service-connected death pension is denied. Entitlement to month-of-death check is denied. FINDINGS OF FACT 1. The appellant did not appeal the April 2015 rating decision that denied service connection for the Veteran’s cause of death; this decision became final. 2. Additional evidence received since the final April 2015 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for the Veteran’s cause of death. 3. The Veteran died in September 2013; the death certificate lists the cause of death as myocardial infarction. 4. The Veteran was service-connected for right knee fracture, bilateral leg scarring, a left arm condition, and left knee fracture; neither the appellant nor the evidence of record indicate that the Veteran’s service-connected disabilities contributed to his death. 5. The Veteran’s service in Korea pre-dates conceded use of herbicides in or near the Korean Demilitarized Zone (DMZ). 6. The preponderance of the evidence weighs against an etiological relationship between the Veteran’s cause of death and active service. 7. The appellant’s countable income exceeds the maximum annual pension rate (MAPR) for death pension purposes. 8. The Veteran was not in receipt of VA compensation or pension benefits. CONCLUSIONS OF LAW 1. The April 2015 rating decision denying the claim for service connection for the Veteran’s cause of death is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for the Veteran’s cause of death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 4. The criteria for non-service-connected death pension benefits have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. 5. The criteria for month-of-death check have not been met. 38 U.S.C. § 5310; 38 C.F.R. § 3.20. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1946 to July 1962. Unfortunately, the Veteran died in September 2013 while part of this appeal was pending. The appellant, the Veteran’s surviving spouse, has been substituted in the instant case. The matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision and administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the appellant testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the Board remanded the matters for further development in November 2019. The Board notes that the November 2019 Board decision also remanded the appellant’s claims for entitlement to accrued benefits for service connection for hypertension, an acquired psychiatric disorder, gastroesophageal reflux disease, tinnitus, and left ear hearing loss as well as the claim for a 10 percent rating based on multiple, noncompensable, service-connected disabilities for the issuance of an statement of the case (SOC) as one had not been issued. See Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued a March 2020 SOC regarding the appellant’s accrued benefits claims. In June 2020, the appellant provided VA with an updated, current mailing address. See June 2020 VA 21-0820 Report of General Information. Accordingly, the RO sent a copy of the SOC to the appellant’s updated address in June 2020. The Board notes that the appellant has not perfected an appeal as to her accrued benefits claims as no VA Form 9 has been submitted for these issues. Thus, the claims are not currently before the Board and will not be further addressed herein. New and Material Evidence In general, a RO’s determination that is not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108, 7105. New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. The appellant’s claim for service connection for the Veteran’s cause of death was denied in an April 2015 rating decision on the basis that there was no evidence indicating that the Veteran’s heart condition was incurred in-service or caused by an injury or disease that began during a period of active service. The appellant did not appeal the April 2015 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b), (c). Accordingly, the April 2015 rating decision became final. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for the Veteran’s cause of death. New evidence received since the last final denial in April 2015 includes the appellant’s lay statements that the Veteran was exposed to herbicide agents in service. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the claim. Accordingly, as new and material evidence has been received, Board finds that the claim for service connection for the Veteran’s cause of death is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection for Cause of Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of the veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312(c). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312. The Veteran died in September 2013. The death certificate lists myocardial infarction, i.e., a heart attack, as the cause of death. No other contributory causes of death were reported on the death certificate. The Board notes that the Veteran was service-connected for right knee fracture, bilateral leg scarring, a left arm condition, and left knee fracture. Neither the appellant nor the evidence of record indicate that these service-connected disabilities contributed to the Veteran’s death. The appellant asserts that the Veteran was exposed to herbicides during active service and that this exposure to herbicides caused his cardiac condition. Specifically, she contends that he was exposed to herbicides while serving in Korea. A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Additionally, 38 U.S.C. § 1116B, extends the presumption of herbicide exposure for veterans who served in or near the Korean DMZ during the period beginning on September 1, 1967, and ending on August 31, 1971. The Board recognizes that the Veteran’s service personnel records indicate that he served in Korea from April 1957 to April 1958. Thus, the evidence of record shows that the Veteran served on active duty in Korea prior to the period for which herbicide exposure is conceded in the Korean DMZ. As such, herbicide exposure is not established based on the Veteran’s service in Korea. Additionally, there is no probative evidence that the Veteran was exposed to herbicides during his active service. Accordingly, the cause of the Veteran’s death, myocardial infarction, cannot be presumed to be service-connected due to in-service exposure to herbicides. Moreover, despite concluding that the Veteran was not exposed to herbicides during active service, the Board has considered whether the Veteran’s cause of death is related to service on an alternative basis. However, there is no indication based on the lay or medical evidence of record that the Veteran’s myocardial infarction or other cardiac disorder that may have led to the myocardial infarction manifested during service. In this regard, the Veteran’s service treatment records reflect that the Veteran did not complain of or receive treatment for a cardiovascular disorder during active service. Additionally, the medical record does not show that the Veteran was diagnosed with a cardiovascular disorder, to include myocardial infarction during active service or within one year of discharge from service. There is no competent evidence linking the Veteran’s myocardial infarction to his military service. In sum, the record lacks competent evidence correlating the Veteran’s cause of death to his active service or his service-connected disabilities. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Non-Service Connected Death Pension Death pension benefits are generally available for surviving spouses, as a result of the veteran’s non-service-connected death. See 38 U.S.C. § 1541(a). An appellant 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; and, if the appellant meets specific income and net worth requirements. See 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). Here, as the Veteran served for greater than 90 days during the Korean Conflict this criterion is met. A surviving spouse will be paid the maximum rate of death pension, reduced by the amount of countable income. 38 U.S.C. § 1541; 38 C.F.R. § 3.23. If the surviving spouse’s income exceeds the MAPR, he or she is ineligible to receive death pension payments. In determining income for this purpose, payments of any kind from any source, including salary, retirement or annuity payments, or similar income, which has been waived, are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Exclusions from income include the expenses of the veteran’s last illness and burial and for the veteran’s just debts, debts not incurred to secure real or personal property, if paid by the appellant. 38 C.F.R. § 3.272(h). Such expenses may be deducted only for the 12- month annualization period in which they were paid. 38 C.F.R. § 3.272(h). Medical expenses in excess of five percent of the maximum income rate allowable, which have been paid, may be excluded from an individual’s income for the same 12-month annualization period, to the extent they were paid. 38 C.F.R. § 3.272(g). The monthly rate of pension shall be computed by reducing the applicable MAPR by the countable income on the effective date of entitlement, dividing the remainder by 12 and rounding the result down to the nearest whole dollar amount. 38 C.F.R. § 3.273(a). The Board notes that the matter was remanded in November 2019 to request clarification and supporting documentation from the appellant regarding her claimed unreimbursed medical expenses and countable income. The Board finds that the RO has substantially complied with the November 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, the appellant did not submit the enclosed Medical Expense Report, VA Form 21P-8416, or Improved Pension Eligibility Report, VA Form 21-0571-1. See March 2020 and June 2020 VA correspondence. Accordingly, as there has been substantial compliance with the Board’s remand directives, the Board may proceed with appellate review. The income limit for a surviving spouse with no dependents was $8,630, effective December 1, 2014; $8,656, effective December 1, 2016; $8,830, effective December 1, 2017; $9,078, effective December 1, 2018; $9,224, effective December 1, 2019; and $9,344, effective December 1, 2020. See U.S. Dep’t Veterans Affairs, Veterans Pension Rate Table. The evidence of record indicates that the appellant received a monthly income of $1,018.90 from Social Security and $859 from a survivor benefit plan, making her annual income $22,534.80. Additionally, the appellant’s Medicare medical expenses of $104.90, annualized to $1,258.80. As noted above, five percent of the MAPR ($431.50) must be removed from this amount. This means $827.30 can be deducted from the appellant’s income of $22,534.80 leaving $21,707, as the appellant’s countable income, which exceeds the MAPR for a surviving spouse with no dependents. The appellant testified at the October 2019 Board hearing that her total income, without deductions, is $1,100. However, the Board notes that the appellant has provided no evidence that indicates that her income has decreased in the period since this claim. Additionally, the record does not otherwise suggest significant unreimbursed medical expenses or other income exclusions beyond those mentioned above. Moreover, the Board notes that while the RO requested all available information, the appellant has not provided the requested information to substantiate her claim for non-service-connected death pension. The duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the appellant was given the opportunity to update the record and provide the required information to substantiate this claim. This evidence could have been crucial to this claim. The Board sympathizes with the appellant’s case and has sympathetically reviewed the record. The payment of non-service-connected death pension requires that the appellant’s countable income is less than the annual MAPR rate determined by law. VA is bound by the applicable law and regulations as written. See 38 U.S.C. § 7104(c). Here, the countable income was in excess of the applicable pension rate for death pension for a surviving spouse without dependents. As such, the appellant’s countable income exceeded the applicable MAPR rates. As a result, the law is dispositive, and the appellant’s non-service-connected death pension claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Month-of-Death Check The appellant asserts that she is entitled to the Veteran’s month-of-death check. She asserts that the Veteran’s last benefit check, which had already been deposited, was taken back by VA. See October 2019 Board hearing transcript. Under 38 U.S.C. § 5310(a), a surviving spouse of a veteran is entitled to a benefit for the month of the veteran's death if at the time of the veteran's death, the veteran was receiving compensation or pension under chapter 11 or 15 of this title; or the veteran is determined for purposes of section 5121 or 5121A of this title as having been entitled to receive compensation or pension under chapter 11 or 15 of this title for the month of the veteran's death. The amount of the benefit under paragraph (1) is the amount that the veteran would have received under chapter 11 or 15 of this title, as the case may be, for the month of the veteran's death had the veteran not died. While the Board is sympathetic to the appellant’s assertions, the Board is bound by the applicable law and regulations. See 38 U.S.C. § 7104(c). The Board notes that at the time of the Veteran’s death, he was not entitled to any benefits that were due and unpaid. The Veteran’s service-connected disabilities were rated noncompensable; accordingly, he was not in receipt of VA compensation benefits. Additionally, he was not in receipt of any pension benefits. Accordingly, under these circumstances, the Board must find that there is no legal basis for granting the claim. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate 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.