Citation Nr: 21073557 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-46 554 DATE: December 9, 2021 ORDER Entitlement to accrued benefits is denied. Entitlement to nonservice-connected survivor's pension benefits is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. The Veteran did not have any claims for VA benefits pending at the time of his death. 2. The appellant's annual countable income, after allowable exclusions, exceeds the maximum annual pension rate (MAPR) for a surviving spouse with one dependent (and without dependents) for the purposes of entitlement to nonservice-connected survivor's pension benefits. 3. At the time of his death, the Veteran was not in receipt of or entitled to receive compensation for a service-connected disability that was rated totally disabling for a period of 10 or more years prior to his death or for at least five years from the time of the Veteran's discharge from active duty; and the Veteran was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 2. 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. 3. The criteria for entitlement to DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to April 1974. He died on April [REDACTED], 2015. The appellant is his surviving spouse for VA purposes. See SOC (July 2018). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 decision of the Department of Veterans' Affairs (VA) Regional Office (RO). The Board observes that the appellant is unrepresented at the time of this decision. However, the record reveals that the appellant has been notified of her rights to representation. Indeed, in a November 2016 and an April 2017 development letter, and in the June 2017 decision on appeal, the RO notified the appellant of her rights to representation. The appellant, nevertheless, has not submitted a VA Form 21-22 or contacted VA for assistance in finding representation. Thus, the Board finds that she is currently unrepresented in this appeal. 1. Entitlement to accrued benefits. The appellant contends that she is entitled to accrued benefits. She has not identified any pending claim for benefits at the time of the Veteran's death or otherwise clarified why she believes entitlement to accrued benefits is warranted. The Board finds that the Veteran did not have a claim pending at the time of his death, and the appellant did not file a claim for accrued benefits within one year of the Veteran's death. Therefore, the Board concludes that accrued benefits are not warranted. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Accrued benefits are benefits to which a veteran was entitled at his death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The substance of the survivor's claim is purely derivative from any benefit to which the veteran might have been entitled at his death; that is, the survivor cannot receive any benefit that the veteran could not have received. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Here, the appellant's claim for accrued benefits does not meet above criteria. First, VA received the appellant's claim for accrued benefits in November 2016, more than one year after the Veteran's April 2015 death. Second, even assuming the appellant's claim was timely, the Veteran did not have any claims for VA benefits pending at the time of his death nor is there otherwise any evidence the Veteran was entitled to benefits which were unpaid at the time of his death. Given the above, there is no legal basis for the benefit sought and, therefore, it must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to nonservice-connected survivor pension benefits. The appellant contends that she is entitled to survivor's pension. The Board concludes that the appellant is not eligible for nonservice-connected survivor's pension benefits because her annual countable income exceeds 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 includes the Vietnam era. 38 U.S.C. § 1501(4). Here, the Veteran served for more than two years during a period of war, the Vietnam era, from October 1972 to April 1974; thus, the Veteran met the requisite service for death pension benefits. However, the Board finds that the appellant does not meet the specific income requirements to be eligible for pension. Thus, she is not entitled to a VA death pension as the surviving spouse of the Veteran. More specifically, 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. See Survivors Pension Rate Tables, https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp (last accessed 15 October 2021). In this case, the record reflects that VA received the appellant's claim for survivor's pension in November 2016 and again in March 2017. On her November 2016 application, she reported she had one dependent, but did provide the child's birth date or age. See VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (November 2016). At the time of filing, the appellant reported her expected income as $39,500. Id. On her March 2017 application, the appellant reported again that she had one dependent, but did provide the child's birth date or age. See VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (March 2017). She indicated that she had $200 in an interest-bearing bank account and reported receiving income, but did not provide the amount in income. Id. In a February 2018 statement, the appellant reported, for 2016, working at a Children's Hospital, where her income was $41,002.17, and reported that her medical expenses amounted to $1,412.84. See VA 21-4138 Statement In Support of Claim (February 2018). For 2017, she reported her income to be $46,581.55, and her medical expenses to amount to $1,441.18. Id. On her February 2018 Eligibility Verification Report, the appellant listed no dependents. See Eligibility Verification Report (February 2018). She reported that her net worth was 0 and that her only income was from wages: from November 2016 to November 2017, her income was $41,002.17, and from January 2017 to December 2018, her income was $42,501.35. Id. 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 $41,002.17. While in her February 2017 statement received in February 2018, she stated that she was waiting for paperwork to show the amounts paid for her medication, she has not provided that paperwork to date. See VA 21-4138 Statement In Support of Claim (February 2018). It is noted that VA's duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notwithstanding, even assuming the incurred medical expenses the appellant reported in her February 2018 statement, these expenses totaled $1,412.84 in 2016, and $1,441.18 in 2017. Five percent of MAPR for widow with one dependent effective December 1, 2016 of $11,330, equals $566.50. Subtracting that from $1,412.84 amounts to $846.34. Five percent of MAPR for widow with no dependents effective December 1, 2016 of $8,656, equals to $432.80. Subtracting that from $1,412.84 amounts to $980.04. Further, subtracting her medical expenses, her countable income was $40,155.83 if calculated for her with one dependent, and her countable income of $40,022.13 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 For 2018, the appellant's income was reported as $42,501.35; she reported no dependents at that time. Again, even assuming the incurred medical expenses the appellant reported in her February 2018 statement, these expenses totaled $1,441.18. Five percent of MAPR for widow with no dependents effective December 1, 2017 of $8,830, equals $441.50. Subtracting that from $1,441.18 amounts to $999.68. Further, subtracting her medical expenses, her countable income was $40,155.83 if calculated for her with one dependent, and her countable income of $41,501.67, which exceed the MARP for 2018. See https://www.benefits.va.gov/PENSION/rates_survivor_pen09.asp. 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 applications and statements as 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. Accordingly, the claim is denied. 3. Entitlement to DIC under 38 U.S.C. § 1318. The appellant seeks entitlement to DIC benefits under 38 U.S.C. § 1318. If a veteran's death is not due to service-connected disability, a surviving spouse may still be entitled to DIC benefits in the same manner as if a veteran's death were service-connected if a veteran was, at the time of his death, in receipt of, or entitled to receive, compensation for a 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 POW 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; see also 38 C.F.R. § 3.22(a). In this case, at the time of his death, the Veteran was not in receipt of or entitled to receive compensation for a service-connected disability that was rated totally disabling for a period of 10 or more years prior to his death or for at least five years from the time of the Veteran's discharge from active duty. Additionally, he was not a former POW. Accordingly, the claim is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 4. Entitlement to service connection for the cause of the Veteran's death. The appellant also seeks service connection for the cause of the Veteran's death. She has not detailed her allegations. The Board finds that remand is necessary to obtain relevant outstanding private treatment records. 38 C.F.R. § 3.159(c). The Veteran died in April 2015 from septic shock and methicillin resistant staphylococcus aureus pneumonia. See Death Certificate (June 2017). The Veteran's septic shock was noted as being a "day" in duration and the methicillin resistant staphylococcus aureus pneumonia was noted as being "days" in duration. At the time of his death, he was service-connected cervical spine disability (30%), lumbar spine disability (20%); bilateral lower extremity radiculopathy (10% each); and pseudofolliculitis barbae (0%). His combined rating was 60%. He was also in receipt of total disability based on individual employability (TDIU) from May 28, 2007. The Veteran's death certificate reflects that he was treated at a private facility, Victor Valley Global Medical Center and by a private physician, Dr. M.P., MD, from March 2015 to the time of his death in April 2015. See Death Certificate (June 2017). A remand is required to afford the appellant an opportunity to provide the outstanding relevant treatment record or to complete an authorization for VA to obtain those on her behalf. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for Victor Valley Global Medical Center and Dr. M.P. Make two requests for the authorized records from this facility unless it is clear after the first request that a second request would be futile. 2. Readjudicate. 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.