Citation Nr: 21065392 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-28 849 DATE: October 26, 2021 REMANDED Entitlement to death pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1973 to June 1976. The Veteran died in April 2010. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) which denied entitlement to death pension benefits. The Board remanded the appeal for death pension in October 2019 for further development. The Board sincerely apologizes for any additional delay in rendering a decision for this claim on appeal; however, to ensure the appellant is afforded every opportunity to substantiate her claim, a remand is required. 1. Entitlement to death pension benefits is remanded. 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). In the October 2019 Board remand, it was explained that a surviving spouse's income includes the income of the Veteran's children, and there is a rebuttable presumption that a child's income is available to or for the surviving spouse. 38 C.F.R. § 3.23(d)(5). The child's income will not be included if doing so would work a hardship for the surviving spouse. Id. In June 2020 and July 2020, the AOJ sent notification letters to the appellant, but the Board concludes that the letters did not adequately notify the appellant as to the information needed to substantiate her claim. Specifically, the AOJ notified the appellant that it needed additional information to determine whether the Veteran's son is considered "helpless" under the law. However, the AOJ did not explain that, for the appeal period dating back to September 2014, the consideration for helpless child only applies to the timeframe after the appellant's son's eighteenth birthday for the provisions of benefits. The AOJ also requested an application for Exclusion of Children's Income, but did not explain that the application should be limited to the son's income prior to his eighteenth birthday, nor did it provide any context or explanation as to the significance of the form. The appellant returned only Page 2 of the application regarding expenses, but she was not notified about the importance of Page 1, which goes to the reasonable availability of her son's income prior to his eighteenth birthday. As explained in more detail below, the Board finds that it should be made clear to the appellant that different information is needed for the appeal period prior to her son's eighteenth birthday than after. The Board notes that VA's paternalistic appeals system includes VA's duties to notify and assist appellants in substantiating their appeal, especially in cases where an appellant is unrepresented. Given that the appellant is unrepresented, the lack of clarity in the notification letters as they pertain to this appeal is significant, especially since there are different laws that apply to the appellant's claim, depending on which period of the appeal is being considered. The appellant indicated in a call in July 2020 that she was frustrated by receiving requests for the same paperwork over and over. However, the AOJ failed to notify her that her income must be verified annually, and her claim for entitlement to survivor's pension must be assessed from the date of her claim in September 2014, and must be reassessed each year thereafter. Therefore, while it appears from the record that she believes that she keeps providing the same documents and information, it is important that the appellant recognize that that a calculation for her income (and expenses) be made in comparison to the MAPR for each year of her appeal. In other words, the appellant's claim may be granted for one year, but not for another. Moreover, it is important to note that one set of laws applies to the appeal period prior to her son's eighteenth birthday, and a separate set applies to the appeal period after he turned eighteen. The AOJ did not notify the appellant of this. Additional information is also required regarding her daughter's education, which the AOJ has not requested. In order to determine the applicable MAPR for any given year, the Board must determine the number of eligible dependents of a claimant. In this case, again, while the Board recognizes that the appellant indicated that she submitted her information regarding income and no longer wanted to receive additional requests for financial information, the Board finds that the information provided to her on remand has not been clear in its requests, nor has the appellant provided enough information regarding the Veteran's children. Notably, a "child" for purposes of additional compensation for a dependent is defined as a biological or adopted child or stepchild of the Veteran, who is an unmarried person who either: is (1) under the age of 18; (2) "shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years;" or (3) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years), is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4)(A)(ii); 38 C.F.R. §§ 3.57, 3.356. To establish "helpless child" status, the child's condition subsequent to the eighteenth birthday is not for consideration. In cases such as this, the "focus of the analysis must be on the claimant's condition at the time of his or her 18th birthday." Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Initially, the Board notes that the children's birth certificates are not of record. The AOJ should request copies of the appellant's children's birth certificates, which would confirm relevant information including their ages. Regarding the Veteran's daughter, the Board notes that the appellant reported in her September 2014 claim that she was in college. However, in order to determine whether she qualified as a dependent for pension purposes before she turned 23, the AOJ should request additional information regarding her education or training. The appellant should note that her daughter may not be considered a dependent for the purposes of calculating pension without the requested evidence. Regarding the Veteran's son, the AOJ should clarify that it needs different information for the appeal period prior to the son's eighteenth birthday from the information needed after he turned eighteen. Prior to his eighteenth birthday, the information required is regarding the appellant's access to his income, the family's expenses, and any other information required for a hardship determination. Based on the law indicated above, the appellant should note that the burden is on her to show that her son's income prior to his eighteenth birthday was not available to her, and that her expenses must be considered annually in order to determine whether a hardship existed in any given year prior to her son's eighteenth birthday. After the Veteran's son turned eighteen, the AOJ should clarify that the evidence required is whether he should be recognized as a helpless child on the basis of permanent incapacity for self-support. Such information and evidence should address whether her son has any physical or mental defect, to include an intellectual disability, and, if so, whether this condition manifested prior to his eighteenth birthday. In light of above, the Board concludes that this appeal must, again, be remanded so that VA fully satisfies its duty to assist the appellant. To this point, the appellant is encouraged to fully cooperate (with assistance, if necessary) in substantiating her appeal, as VA's duty to assist her is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). The matters are REMANDED for the following action: 1. Request copies of the appellant's children's birth certificates. 2. Provide the appellant with all necessary notice and instructions relevant to her claim of entitlement to nonservice-connected death pension benefits. Notify her of the importance of filing the required forms to assess her financial status, including a Financial Status Report, an Improved Pension Eligibility Verification Report for Surviving Spouse with Dependents, and a VA Form 21-8416 (Medical Expense Report) so that she can provide the necessary data for each of the years from 2014 to the present. The appellant should also be notified that failure to complete forms in their entirety or provide requested information could lead to a denial of her claim. 3. In completing the above, the AOJ must provide the appellant with copies of each VA form. One form of each type is needed for each year since 2014. Assist the appellant where necessary in order to obtain a complete financial picture based on the reported figures. (a.) Regarding the appeal period prior to her son's eighteenth birthday, the AOJ should notify the appellant that the evidence needed to substantiate her claim can include one completed Application for Exclusion of Children's Income for each year, a list of expenses for each year of the appeal prior to his eighteenth birthday, and any evidence (including lay statements) of the unavailability of her son's SSA income to her. (b.) Regarding the appeal period after her son's eighteenth birthday, the AOJ should notify the appellant that the evidence needed to substantiae her claim for "helpless child" can include a statement from a physician, school records, medical or treatment records, teacher statements, employment records, or statements from any person who knew of his condition prior to age 18 and after. (c.) Regarding the appellant's daughter, the AOJ should notify her that, in order to claim her as a dependent between the ages of 18 and 23, proof of her education or training is required for each year. 4. Thereafter, the AOJ should conduct a thorough accounting of the appellant's countable income for each year of the appeal, to include the calculation of the deduction of unreimbursed medical expenses. In the accounting, the AOJ should indicate how many dependents were considered for each year calculated, and why. In a detailed summary, provide a clear explanation for all figures used in order to determine where the AOJ derived the amounts used in calculating the appellant's countable income and why such amounts were used. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.