Citation Nr: 21064604 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-46 316 DATE: October 21, 2021 ORDER Entitlement to a nonservice-connected death pension is denied. FINDINGS OF FACT 1. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for the Veteran's cause of death and this issue is now moot. 2. Compensation and pension benefits may not be concurrently awarded. 3. The benefits awarded to the appellant for the Veteran's cause of death are greater than the maximum available rate for the nonservice-connected death pension. CONCLUSION OF LAW As a greater compensation benefit is being awarded, the appeal for nonservice-connected death pension is denied. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. § 3.102, 3.151, 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1968 to January 1989. He died in March 2017, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 determination by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal, a June 2020 rating decision granted service connection for the cause of death. This constitutes a full award of the benefits sought on appeal with respect to this issue. As such, there is no case or controversy for the Board to adjudicate with respect to the original claim of entitlement to service connection for cause of death. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also 38 U.S.C. § 7104; 38 C.F.R. § 20.101. In the August 2018 Form 9, the appellant requested a live videoconference hearing before the Board. In January 2020, the appellant withdrew her request for a Board hearing. As such, the appellant's hearing request is withdrawn. 38 C.F.R. § 20.704(e). Entitlement to a nonservice-connected death pension. A claim for compensation may be considered to be a claim for pension, and a claim for pension may be considered a claim for compensation; the greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. 38 C.F.R. § 3.151(a). The governing laws and regulations have long held that a claimant may not receive concurrent payments of compensation and pension benefits, and require a claimant to elect to receive one benefit or the other. See 38 U.S.C. § 5304; 38 C.F.R. § 3.700. Death pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death. 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. 38 U.S.C. § 1541(a); 38C.F.R. § 3.3(b)(4). 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 the present case, dependency and indemnity compensation (DIC) benefits were granted based upon a service-connected cause of death in a June 2020 rating decision. Compensation benefits for a service-connected disability and pension benefits may not be received at the same time. 38 U.S.C. § 5304; 38 C.F.R. § 3.700. As an award of DIC benefits is the greater benefit, the claim for nonservice-connected death pension is considered moot and is therefore dismissed. 38 C.F.R. § 3.151 (a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise). The appellant has not indicated that she wishes to receive the lesser benefit. Therefore, as the compensation benefit for his service-connected cause of death was greater, she received compensation rather than pension benefits. Although the appellant may elect to receive either benefit, even if one is a lesser amount, the Board will not make such a determination. See 38 C.F.R. § 3.701. Accordingly, the claim is denied. C.A. SKOW 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.