Citation Nr: 21065259 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-28 932 DATE: October 25, 2021 ORDER Service connection for cause of death is denied. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. Entitlement to nonservice-connected survivor pension benefits is denied. Entitlement to non-service-connected burial benefits is denied. FINDINGS OF FACTS 1. The Veteran died in August 2015 and his only service-connected disability was right chronic first metacarpophalangeal joint dislocation, rated at a noncompensable rating. 2. The Veteran was not in receipt of a total rating for 10 continuous years prior to his death, was not rated as totally disabled continuously since his release from active duty and for at least 5 years preceding death and was not a prisoner of war. 3. The Veteran did not have any claims pending at the time of his death. 4. The appellant's countable income has exceeded the applicable maximum annual pension rate (MAPR). 5. The Veteran was not buried in a national cemetery. 6. The Veteran did not receive disability compensation or have a pending claim for compensation but was receiving non-service-connected pension benefits at the time of his death. 7. The evidence of record does not demonstrate that the appellant incurred costs for the Veteran's burial expenses. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 C.F.R. §§ 3.102, 3.312. 2. The criteria for entitlement to § 1318 DIC have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. The criteria for payment of accrued benefits have not been met. 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1 (p), 3.155(a), 3.1000. 4. The criteria for entitlement to payment of survivor pension benefits since are not met. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. 5. The criteria for entitlement to non-service-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1709. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1967. He passed away in August 2015. The appellant is his surviving spouse. This matter is on appeal from a May 2016 rating decision. Service Connection for Cause of Death The appellant seeks service connection for the cause of the Veteran's death. The law provides Dependency and Indemnity Compensation (DIC) for a spouse of a veteran who dies from a service-connected disability. See 38 U.S.C. § 1310. A service-connected disability is one which was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a) Service connection requires that the evidence show: (1) the existence of a disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the disability and a disease or injury incurred or aggravated during service-the so-called "nexus" element. Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. 38 C.F.R. § § 3.312 (a). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. 38 C.F.R. § § 3.312 (b). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially. 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). The Veteran passed away in August 2015. On his death certificate, the immediate cause of death was listed as metastatic hepatoma. He was service connected for a right chronic first metacarpophalangeal joint dislocation at a noncompensable rating prior to his death. It is undisputed that the Veteran's death was caused by cancer. However, service connection for cause of death requires more than just a showing that the Veteran died of metastatic hepatoma. Rather, it must be shown that his cancer was either directly or presumptively linked to his time in active service. Here, the evidence of record fails to establish as such. The Veteran service treatment records are silent for any complaints, diagnosis, or treatment indicative of cancer. There is no indication that the Veteran developed cancer within one year of service. Post service private treatment records showed that he was diagnosed and treated for several conditions such as prostate cancer, hepatocellular carcinoma, hypertension, arthritis, chronic obstructive pulmonary disease and history of hepatitis C several years after service. He demonstrated elevated PSA readings in 2001 and was clinically diagnosed with prostate cancer, clinical stage II in November 2011. He was also presented with a significant cardiac history. He was diagnosed with cardiomyopathy after an echocardiogram in August 2009. The Board notes that his service connection claim for prostate cancer was denied by AOJ in a February 2012 rating decision. While the appellant has submitted several medical treatment records showing the Veteran's treatment for various ailments, it does not show that the Veteran developed cancer as a result of his service, nor does it show that his cancer manifested within one year of service. There has been no showing that the Veteran's service-connected disability contributed to his death. Accordingly, service connection for cause of death is denied. Entitlement to DIC under 38 U.S.C. § 1318 Pursuant to 38 U.S.C. § 1318, DIC benefits are payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service-connected, if the veteran died not as the result of his own willful misconduct and the veteran was, at the time of his death, either in receipt of or entitled to receive compensation for service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. The appellant asserts that she is entitled to § 1318 DIC benefits. However, after reviewing the relevant evidence, the Board finds that the evidence does not support her contention. The Veteran was not a prisoner of war (POW), and the appellant has not suggested otherwise. Further, he was only service connected for a right chronic first metacarpophalangeal joint dislocation at a noncompensable rating. He was not awarded a total disability rating at the time of his death. Consequently, he was not in receipt of, or entitled to receive, compensation for a service-connected disability that was rated totally disabling for the required 10 years immediately preceding his death and had not been continuously rated totally disabled since his discharge from service in December 1987. For these reasons and bases, entitlement to § 1318 DIC is not warranted. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. Entitlement to Accrued Benefits Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). The appellant is considered a spouse for VA purposes. Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claim by submitting a timely claim for accrued benefits. Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). The appellant filed a claim for accrued benefits when the Veteran passed away. After a review of all the evidence of record, lay and medical, the Board finds that, the Veteran did not have any claims pending at the time of his death. Accordingly, the appeal for accrued benefits is without legal merit and must be denied. See Sabonis, 6 Vet. App. 426, 430. Entitlement to Non-Service-Connected Survivor Pension Benefits The appellant seeks entitlement to nonservice-connected survivor pension benefits. At her August 2021 Board hearing, the appellant's asserted that she was denied non-service-connected pension benefits because her income was too high. She testified that at the time of the Veteran's death, he was receiving money from VA each month in the amount of $1,040.00. The appellant indicated that she has been receiving Social Security checks in the amount approximately $750.00 each month. However, she indicated that she did not have any medical expenses has her insurance covers those expenses. She added that she has not suffered any casualty losses to her house that was not covered by homeowner's insurance. Since she is a renter, she does not have any homeowner's expenses. Survivors' pension benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death. 38 U.S.C. § 1541 (a). Basic entitlement exists 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). In the present case, the Veteran had qualifying service of 90 days or more during a period of war. Additionally, he had been receiving VA compensation at the time of his death. Therefore, the first two requirements for improved death pension are satisfied. The remaining question is whether the appellant's income exceeds the MAPR. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 3 8C.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. The following are excluded from countable income for VA pension purposes: (a) welfare benefits; (b) maintenance furnished by a relative, friend, or a charitable organization; (c) VA pension benefits; (d) casualty loss reimbursement; (e) profit from the sale of property; (f) amounts in joint accounts acquired by reason of the death of the joint owner; (g) certain unreimbursed medical expenses; (h) expenses of last illnesses, burials, and just debts; (i) educational expenses; (j) a portion of the beneficiary's children's income; (k) Domestic Volunteer Service Act Programs payments; (l) distributions of funds under 38 U.S.C. § 1718 ; (m) certain children's income when hardship is established; (n) survivor benefit annuities paid by the Department of Defense; (o) Agent Orange settlement payments; (p) restitution to individuals of Japanese ancestry; (q) cash surrender value of life insurance policies; (r) income received by American Indian beneficiaries from trust or restricted lands; (s) Radiation Exposure Compensation Act payments; (t) Alaska Native Claims Settlement Act payments; (u) monetary allowances for certain children of Vietnam veterans or children of veterans with covered service in Korea; (v) Victims of Crime Act compensation payments; (w) Medicare Prescription Drug Discount Card and Transitional Assistance Program payments; and (x) lump-sum proceeds of a life insurance policy on a veteran. 38 C.F.R. § 3.272. The types of expenses excludable for VA pension purposes must be deducted in the year in which they occurred. Id. 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, VA 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). In her September 2015 VA Form 21-534EZ Application for DIC, the appellant indicated that she was seeking a claim for death pension. However, she did not provide any financial information on her application. Under Section VII Net Worth, the appellant did not offer any information. Under Section VIII Gross Monthly Income and Section IX Expected Income, she indicated '$0' for every section. The appellant's claim for a nonservice-connected survivor pension was denied by the Agency of Original Jurisdiction (AOJ) on the basis that she failed to provide sufficient information pertaining to her annual income. See 38 C.F.R. § 3.273 (a). In a November 2015 development letter, the AOJ requested additional information pertaining to her financial information. She resubmitted her application in February 2015, showing social security benefits in the amount of $724.00. See February 2016 SSA/SSI Letter. Her annual income totaled $8,688. She also provided authorization for release of medical information in February 2016. However, the AOJ did not receive the requested information and denied the claim in May 2016. The Board notes that effective December 1, 2014, the MAPR for a surviving spouse with no dependents was $8,630.00. At this point in time, the appellant's income exceeded the MAPR amount. Pursuant to her Notice of Disagreement, the AOJ sent another development letter in March 2017, requesting that the appellant complete an Improved Pension Eligibility Verification Report, provide her complete income, medical expense, and net worth information for the time periods between August [REDACTED], 2015 to August 31, 2016 and for the calendar years 2016 and 2017. The Board notes that effective December 1, 2016, the MAPR amount increased to $8,656.00. The appellant submitted her Improved Pension Eligibility Verification Report, indicating that she has not remarried since the death of the Veteran, that she is not a patient in a nursing home, has not received any wages or any other VA benefits as a veteran, parent, or surviving spouse. She reported a monthly income of $703.00 received by Social Security and SSI in the amount of $37.00 from November 2016 to April 2017. Her annual income totaled to $8,880. She did not report any unreimbursed medical expenses or other excludable income which could be used to reduce her annual income. Again, her annual income exceeded the MAPR amount of $8,656.00. Accordingly, the appellant's countable income exceeded the MAPR for a surviving spouse with no dependents. She has not shown any medical expenses or other qualifying expenses that would reduce her annual income. Unfortunately, the Board finds that the appellant does not meet the requirements for a nonservice-connected survivor pension. The appellant's annual income exceeded the MAPR for each year in which she provided information to support her claim for pension benefits. See 38 C.F.R. § 3.273 (a). Entitlement to non-service-connected burial benefits The appellant is seeking burial benefits following the death of the Veteran. On the appellant's VA Form 21-530 (Application for Burial Benefits), she indicated that she was seeking a non-service-connected death burial allowance, that the Veteran passed away at home in Drummonds, Tennessee, and that she incurred expenses in the amount of $225 for transportation fees. The Board notes that the funeral bill sent by Jefferson Mortuary detailed that the exact amount of $5,900 dollars for the Veteran's funeral expenses was incurred by the Veteran's daughter, not the appellant. A burial allowance is payable under certain circumstances to cover some of a deceased veteran's burial, funeral, and transportation expenses. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1700. A burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. Burial allowance is also warranted for a Veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. Based on the Veteran's death certificate, he died on August [REDACTED], 2015 at his home in Memphis, Tennessee. He was buried at West Canaan Cemetery shortly after. The record shows that the Veteran died in a non-VA facility and that at the time of his death, he was in receipt of non-service-connected pension and special monthly pension based on the need for aid and attendance, granted by a February 2012 rating decision. However, the Board notes that the burial and funeral expenses were not incurred by the appellant personally. See November 2016 Funeral Bill/Expenses. The claims file does not show that the appellant bore any actual personal expenses to cover the costs of the burial. She has not provided proof that she paid for the burial expenses. See 38 C.F.R. § 3.1702 (c)(1), (2). The Board also notes that while the appellant has contended that she incurred $225.00 in transportation costs, a transportation allowance under 38 C.F.R. § 3.1709, is not warranted. VA will reimburse the costs of transportation only if a veteran was buried in a national cemetery. See 38 C.F.R. § 3.1709. This is not the case here as the Veteran was buried in a private cemetery. In short, because the appellant did not pay for the Veteran's burial expenses, she lacks legal standing to pursue a claim for reimbursement for VA burial benefits. Accordingly, entitlement to VA burial benefits is denied. Michael Lane Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.