Citation Nr: 21063907 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-50 710 DATE: October 18, 2021 ORDER Entitlement to nonservice-connected survivor pension benefits is denied. Entitlement to accrued benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. The appellant's annual countable income, after allowable exclusions, exceeds the maximum annual pension rate (MAPR) for a surviving spouse with one dependent to be entitled to nonservice-connected death pension. 2. The appellant, as the Veteran's surviving spouse, has standing and has submitted a timely application for accrued benefits; however, the Veteran did not have a claim pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for basic eligibility for nonservice-connected survivor's pension benefits are not met. 38 U.S.C. § 1521, 1541, 1542, 1543, 5103A; 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273. 2. The criteria for the award of accrued benefits have not been met. 38 U.S.C. §§ 5101 (a), 5103, 5103A, 5121; 38 C.F.R. §§ 3.159, 3.1000, 20.201(a), 20.300. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1969 to October 1972, to include service abord USS Horne. He died in February 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In April 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. 1. Entitlement to nonservice-connected survivor pension benefits is denied. The appellant contends that she is entitled to survivor pension. The Board concludes that the appellant is not eligible for nonservice-connected survivor's pension benefit, because her annual countable income exceeds the MAPR for a surviving spouse with one dependent as well as the MAPR for a surviving spouse with no dependents. 38 U.S.C. § 1521, 1541, 1542, 1543, 5103A; 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273. The surviving spouse of a veteran is entitled to receive nonservice-connected death pension benefits if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 C.F.R. § 3.3(b)(4); see also Survivors Pension Rate Tables, https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp (last accessed 15 October 2021). 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 maximum rate of pension, the surviving spouse 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 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). 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 maximum annual pension rate (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). For VA pension benefit purposes, the term period of war means the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C. § 1501(4). Here, the Veteran, who served for more than two years during a period of war from June 1969 to October 1972, which falls under the Vietnam era, and had the requisite service for death pension benefits. However, the Board finds that the appellant does not meet the specific income requirement. Thus, she is not entitled to death pension benefits. The income limit for a widow with one dependent was $11,330, effective December 1, 2016; $11,554, effective December 1, 2017; $11,881, effective December 1, 2018; $12,072 effective December 1, 2019; and $12,229, effective December 1, 2020. See U.S. Dep't Veterans Affairs, Veterans Pension Rate Table. The income limit for a widow without dependents was $ $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. Survivors Pension Rate Tables, https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp (last accessed 15 October 2021). The appellant filed a claim for entitlement to survivor pension in March 2017. She reported she had one minor dependent. At the time of filing the appellant reported receiving $1,466.90 per month from the Social Security Administration (SSA), which totals to $17,592 annually. She received annual retirement in the amount of $1,416.00; and $255.50 in death benefits from the SSA. Her total income was $19,263.00 per year. 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 2017 the Appellant's income was $19,263. The appellant's SSA information shows that she paid $1,308.00 for Medicare Part B premiums; and she reported burial expenses in the amount of $5,218.00. These expenses total to $6,526.00. Five percent of MAP effective December 1, 2016 of $11,330, equals $566.50. Subtracting that from $6,526.00 amounts to $5,959.50. Further, subtracting her medical and burial expenses, her countable income was $13,303.50 if calculated for her with one dependent, and her countable income of $13,169.00 if calculated for her without dependents, both of which exceed the MARP for a surviving spouse with one dependent and surviving spouse without any dependents for 2017. See https://www.benefits.va.gov/PENSION/rates_survivor_pen09.asp. Thus, the appellant's countable income was a bar to the receipt of pension benefits. She has not reported any expenses or income for her dependent, born in January 2011, as shown by the birth certificate of record in the file. Moreover, the appellant has not reported and the record does not otherwise suggest significant unreimbursed medical expenses or other income exclusions beyond those reported in the June and August 2017 and mentioned above. The appellant still exceeds the maximum allowable income. The Appellant has not indicated any income change or reduction during the intervening period that would cause her to qualify for pension benefits. Thus, the appellant is precluded from receiving death pension benefits. This finding is based on the financial information provided by the appellant. Therefore, the facts are not in dispute. As a result, the law is dispositive, and the appellant's pension claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board finds that the preponderance of the evidence is against the claim for pension benefits and the claim must be denied. 2. Entitlement to accrued benefits is denied. The appellant asserts that the Veteran, at the time of his death, had pending claims. She has not detailed her allegations. The Board finds that the Veteran did not have a claim pending at the time of his death, and thus, the appellant is not eligible for accrued benefits. Claims for VA benefits do not survive a claimant's death. However, a qualified survivor, including a spouse, may carry on the deceased veteran's claim for benefits by submitting an application for accrued benefits within one year after the veteran's death. Accrued benefits are periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death. 38 U.S.C. § 5121(a), (c); 38 C.F.R. § 3.1000. An accrued-benefits claim incorporates any prior final adjudication on claims brought by a veteran, because it derives from the veteran's claims. For a claimant to prevail in an accrued benefits claim, the record must show that: (1) the appellant has standing to file a claim for accrued benefits; (2) the Veteran had a claim pending at the time of death; (3) the Veteran would have prevailed on the claim if the Veteran had not died; and (4) the claim for accrued benefits was filed within one year of the Veteran's death. The Veteran died in February 2017, and the appellant, his surviving spouse, filed a claim for accrued benefits in June 2017, within one year of his death. However, the appellant does not meet the requirement that the Veteran have a claim pending at the time of death. Specifically, a review of the claims file indicates the Veteran filed a service connection claim for sarcoma in August 2015. The AOJ denied that claim in a December 2015 rating decision. The Veteran was notified of the December 2015 rating decision and informed of his appellate rights by a notification letter dated December 18, 2015. The next correspondence received is the appellant's VA 21-0966, Intent to File, in May 2017. The record shows that neither new and material evidence nor an indication of disagreement with the rating decision dated December 2015 was submitted by the Veteran within one year of the December 2015 notification letter. Thus, the December 2015 rating decision became final and the Veteran had no pending claims at the time of death. Although the appellant submitted May 2017 VA Form 21-0966, Intent to File, the Board finds that there were no pending claims at the time of the Veteran's death in February 2017. Therefore, any claim for entitlement to accrued benefits must be denied as the Veteran had no pending claims at the time of death which could result in accrued benefits. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. REASONS FOR REMAND 3. Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant contends that her husband was stationed in Vietnam between 1969 and 1972 and assigned to the USS Horne, which is believed to have been exposed to herbicide agents, and that exposure to herbicide agents caused soft tissue sarcoma that was the cause of the Veteran's death. In support of that contention, the Appellant has submitted numerous articles regarding the possibility of herbicide agent exposure on USS Horne, such as in October 2018 and May 2021 correspondence. Prior to death, the Veteran filed an August 2015 claim for service connection for high grade liposarcoma, claimed as due to radiation exposure abord USS Horne. At the hearing, the Appellant stated that she believed soft tissue sarcoma and diabetes mellitus were related to service, including as due to exposure to herbicide agents, chemicals, and/or asbestos. The Appellant explained that after the Veteran retired from the service, he did not work anywhere else where he might have been exposed to any chemicals. To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). Initially, the Board notes that the Veteran had a diagnosis of soft tissue sarcoma including in June 2015 and diabetes mellitus as show in past medical history listed in June 2015. The service medical records show notations pertaining to cough and sore throat in March 1971; rash over the upper extremities and chest in December 1971 on USS Horne, contact dermatitis in January 1972 on USS Horne, and sore throat and cough in September 1972 also on USS Horne. See STR-Medical (August 2015). A February 1976 service separation examination found normal skin and lymphatics. The death certificate shows that the Veteran passed away in February 2017 as a result of aspiration pneumonia and soft tissue sarcoma. The Board observes that soft tissue sarcoma and diabetes mellitus are listed as diseases associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). With regard to the Veteran's reported exposures in service as the cause of soft tissue sarcoma, because it is listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e), the appellant can rely on the presumptive provisions of 38 C.F.R. § 3.307(a)(6) to substantiate the claim. Thus, if exposure is established, the presumptive provisions for the diseases listed in 38 C.F.R. § 3.309(e), including soft tissue sarcoma, become applicable. Even if presumptive provisions are not for application, service connection may still be established on direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). In this case, the service personnel records show that the Veteran served aboard the USS Horne (DLG-30) during service between March 1971 and October 1972. The service separation form indicates that the Veteran served as a Radarman. A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The phrase service in the Republic of Vietnam includes service in the 12-nautical-mile territorial waters of the Republic of Vietnam. 38 U.S.C. § 116A(d). The Board finds that the appellant's claim should be referred to the Joint Services Records Research Center (JSRRC) to attempt to corroborate the Veteran's claimed exposure, including to herbicide agents in the offshore water of the Republic of Vietnam and to other chemical agents. On remand, the AOJ should conduct all necessary development to verify the Veteran's alleged herbicide exposure, chemical exposure and asbestos exposure, to include whether the USS Horne operated in the territorial seas of the Republic of Vietnam during the Veteran's service, or sent any individuals serving aboard ashore in Vietnam. Additionally, the Board finds that there is sufficient evidence of record to trigger VA's duty to obtain a VA medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold is low for triggering this duty to assist. It is noted that, while the Veteran's private physician, Dr. C.H., MD, has stated, in September 2017, that the Veteran's liposarcoma that was metastatic into his lungs "might have been from his previous Agent Orange exposure," that opinion was based on the assumption that the Veteran was exposed to herbicide agents, other chemical agents, or asbestos during service. However, it has not yet been established that the Veteran has been exposed to herbicides, other chemical agents, or asbestos. Dr. C. H. assumed that the Veteran was exposed while on active duty based on the Veteran's self-reported history, and a medical evaluation that is merely a recitation of a Veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). Also, with regard to the articles the appellant submitted concerning Agent Orange exposure and USS Horne, both articles provide general overview of Agent Orange exposure and USS Horne, respectively, without any indication of how either is relevant to the Veteran's soft tissue sarcoma and diabetes and his service. The appellant has also submitted a letter to the Veteran dated November 2008 from the Department of Veterans Affairs acknowledging his participation in the Agent Orange Registry Program. See Correspondence (May 2021). However, that letter does not conclude that the Veteran has been exposed to Agent Orange or any other chemical agents. Nonetheless, this evidence is sufficient to trigger VA's duty to obtain an examination and medical opinion. The matter is REMANDED for the following action: 1. Attempt to verify whether the Veteran's was exposed to herbicide agents, other chemical agents, or asbestos through official sources to include the JSRRC, National Archives and Records Administration (NARA), or other appropriate repository, and request the deck logs and/or command histories as appropriate for each ship the Veteran is determined to have been present aboard during Vietnam War service, to include USS Horne, including all movements and operations conducted, to verify whether the Veteran's service included any presence ashore in the Republic of Vietnam or within the 12-nautical mile territorial sea of the Republic of Vietnam. If more details are needed, contact the appellant to request the information. If there is still insufficient information to verify exposure to herbicide and/or chemical agents, issue a Formal Finding outlining the steps taken to assist the appellant and notify her of VA's inability to verify the in-service herbicide, chemical agent exposure and/or asbestos exposure. 2. If herbicide agent exposure is not conceded by VA, obtain a VA medical opinion from a medical doctor to determine the nature and etiology of soft tissue sarcoma. The examiner should opine whether it at least as likely as not (50 percent or greater probability) that soft tissue sarcoma (a) had its onset in service, (b) manifested within one year after service, or (c) is otherwise etiologically related to any event, injury, disease, or exposure during service, to include documented findings in service involving cough and sore throat, rash over the upper extremities and chest, contact dermatitis, and sore throat and cough, and reported exposure to chemical agents or asbestos. The opinion should: reflect consideration of the service medical records showing cough and sore throat in March 1971, rash over upper extremities and chest in December 1971, contact dermatitis in January 1972, and sore throat and cough. The examiner should discuss whether any relationship exists between those reports in service and the subsequent development of soft tissue sarcoma. The examiner should address the articles submitted by the appellant and the 2017 private medical opinion and should reconcile the opinion with that private opinion. The examiner should provide a complete rationale for the conclusions reached. The medical opinions should support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Medical opinions should contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.