Citation Nr: 21075032 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-14 517 DATE: December 17, 2021 ORDER Entitlement to survivors' pension benefits for the period prior to December 1, 2016 is denied. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to survivors' pension benefits for the period from December 1, 2016 is remanded. FINDINGS OF FACT 1. For the period on appeal prior to December 1, 2016, the appellant's countable annual income exceeded the relevant maximum annual death pension rate (MAPR) that applied to a surviving spouse with no dependent children. 2. The Veteran was never a prisoner of war and was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from service, or for 10 or more years prior to death. 3. At the time of the Veteran's death, there were no Department of Veterans Affairs (VA) benefits to which he was entitled that were due and unpaid; a claim for VA benefits was not pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for payment of survivors' pension benefits for the period prior to December 1, 2016 have not been met. 38 U.S.C. §§ 101, 1503, 1541; 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.271, 3.272, 3.274, 3.275. 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. The criteria for an award of accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.2, 3.3, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to January 1970, to include service in Vietnam. His decorations included the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. Unfortunately, he died in September 2012. These matters come to the Board of Veterans' Appeals (Board) on appeal from May and June 2013 decisions issued by the VA Pension Management Center in Milwaukee, Wisconsin. The appellant, through her authorized representative, has waived initial agency of original jurisdiction (AOJ) review of new evidence added to the claims file since issuance of the February 2016 statement of the case (SOC). See July 2021 appellant's brief; 38 C.F.R. § 20.1305(c). As a threshold matter, the Board finds that the appellant is the Veteran's surviving spouse for the purpose of establishing basic entitlement to survivors' benefits. In order for an appellant to be recognized as a surviving spouse, the evidence must support that she was the veteran's spouse at the time of death and that she lived continuously with the veteran from the date of marriage to the date of his death. 38 U.S.C. §§ 101(3), 5124(c); 38 C.F.R. §§ 3.205(a), 3.206. If the couple did not continuously cohabitate or was estranged or separated at death, VA must determine whether the separation was due to the misconduct of, or procured by the veteran, without the fault of the spouse. See 38 U.S.C. § 101(3); 38 C.F.R. §§ 3.53, 3.205(a)(6); Gregory v. Brown, 5 Vet. App. 108, 112 (1993); Alpough v. Nicholson, 490 F.3d 1352, 1358 (Fed. Cir. 2007). If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. 38 C.F.R. § 3.53(b). In determining whether there was continuous cohabitation, the statements of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. Id. A November 1998 marriage certificate shows that the appellant and the Veteran were married in July 1967. The Veteran's death certificate noted that he was married to the appellant at the time of his death. In her March 2016 VA Form 9, the appellant clarified that she was still married to the Veteran at the time of his death, but that they were separated due to his job and his mental health condition. She explained that the Veteran was abusing alcohol due to his mental health condition. Considering the above, the Board finds that the appellant satisfies the definition of a surviving spouse for the purpose of establishing basic entitlement to survivors' benefits. Although she and the Veteran did not live together continuously until the time of the Veteran's death, the most probative evidence of record supports her contention that the separation was due to mutual consent and/or the Veteran's own misconduct. VA treatment records show that the Veteran was treated for alcoholism prior to his death. There is no information to the contrary. 38 C.F.R. § 3.53(b). 1. Entitlement to survivors' pension benefits for the period prior to December 1, 2016 is denied. The appellant seeks to establish entitlement to survivors' pension benefits. VA received the appellant's claim in January 2013. The record reflects that she has no dependents. See, e.g., January 2013 VA Form 21-534EZ. Survivors pension benefits are available for a surviving spouse pursuant to 38 U.S.C. § 1541(a) and its implementing regulation, 38 C.F.R. § 3.3(b)(4). A surviving spouse is entitled to such benefits if two criteria are met. First, the Veteran must have had qualifying wartime service as defined in 38 C.F.R. § 3.3(a)(3)(i), (ii), and (iii). Second, the surviving spouse must meet the net worth requirements of 38 C.F.R. § 3.274 and have an annual income not in excess of the applicable MAPR specified in 38 C.F.R. §§ 3.23 and 3.24. In this case, the Veteran satisfied the qualifying service criteria as defined in 38 C.F.R. § 3.3(a)(3)(i), consisting of more than 90 days of active service during the war period from August 5, 1964 through May 7, 1975. With respect to the income threshold requirement, entitlement to survivors' pension is established if, among other things, the appellant's income is not in excess of the applicable MAPR, specified at 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 U.S.C. § 1521. The maximum pension rate is reduced dollar for dollar by the amount of the countable income of the appellant and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In determining income for this purpose, payments of any kind from any source 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. Unreimbursed medical expenses reduce countable income for VA pension purposes. Unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, 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)(1)(iii). Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner). 38 C.F.R. § 3.272. From January 10, 2013 to November 30, 2013 For survivors' pension purposes, the MAPR for a surviving spouse with no dependent children was $8,359 for this period. See Pension Rate Tables, effective December 1, 2012, available at https://www.benefits.va.gov/PENSION/rates_ survivor_pen12.asp (accessed on December 13, 2021). For the annualization period from January 10, 2013, the appellant's income was above the relevant MAPR amount. On her January 2013 VA Form 21-534EZ, she reported Social Security (SSA) disability income of $1,190 per month ($14,280 per year) and additional SSA death benefits of $236 per month. An April 2013 SSA inquiry report shows that the appellant was in receipt of SSA disability income of $1,196 per month ($14,352 per year), as well as SSA death benefits of $242 per month ($2,904 per year) from December 2012. Given the discrepancy between the amounts reported by the appellant on her January 2013 VA Form 21-527EZ and the amounts reported by SSA, the Board will use the gross amounts as reported by SSA. The record further shows that VA awarded the appellant $581 for last illness expenses on behalf of the Veteran as an offset to her income, and that she was awarded a lump sum death payment of $255 from SSA on behalf of the Veteran. However, in a July 2013 VA Form 21-4138, the appellant reported that she never actually received the latter amount because it was offset against an overpayment. Accordingly, the Board will not include the $255 lump sum payment in the appellant's income for this period. Based on the foregoing, the appellant's total annualized income was $16,675 effective January 2013 (calculated by adding $14,352 in SSA disability income, $2,904 in SSA death benefit income, and subtracting $581 from the resulting amount). Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2012 for an appellant with no dependents was $8,359, and 5 percent of that amount is $417.95. Therefore, in calculating the appellant's countable expenses, only unreimbursed medical expenses in excess of $417.95 can be considered. In this case, with regard to the annualized period from January 10, 2013, the appellant reported unreimbursed medical expenses totalling $2,936.66, consisting of Medicare Part B premiums and private health insurance premiums, as well as mileage expenses of $261.86 (631 miles multiplied by 41.5 cents per mile). See February 2016 VA Form 21P-8416 (for calendar year 2013). While an April 2013 SSA inquiry report shows that SSA has reported that the Medicare Part B premiums were paid by the state, a May 2016 SSA inquiry report does not show such notation. It is unclear when the state stopped paying the appellant's Medicare Part B premiums. Accordingly, and resolving reasonable doubt in favor of the appellant, the Board will include the Veteran's Medicare Part B premiums in her unreimbursed medical expenses during this period. Taking that into account, total unreimbursed medical expenses for the annualized period from January 10, 2013 were $2,936.66. Deducting the $417.95 (5 percent of MAPR) from $2,936.66 (total unreimbursed expenses for the annualization period from January 10, 2013) results in $2,518.71 in deductible unreimbursed expenses for this annualization period. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $16,675 per year for the annualization period from January 2013, the resulting countable income is $14,156.29, which is higher than the relevant MAPR amount of $8,359. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of additional eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for survivors' pension purposes for this period. Based on the foregoing, the Board finds that, for the period from January 10, 2013 to November 30, 2013, the appellant's countable income exceeded the relevant MAPR. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for this period. From December 1, 2013 to December 31, 2013 For survivors' pension purposes, the MAPR for a surviving spouse with no dependent children was $8,485 for this period. See Pension Rate Tables, effective December 1, 2013, available at https://www.benefits.va.gov/PENSION/rates survivor pen13. asp (accessed on December 13, 2021). For the annualization period from December 1, 2013, the appellant's income was above the relevant MAPR amount. A May 2016 SSA inquiry report shows that the appellant was in receipt of SSA disability income of $1,213.90 per month ($14,566.80 per year), as well as SSA death benefits of $246 per month ($2,952 per year). Based on the foregoing, the appellant's total annualized income was $17,518.80 effective December 1, 2013 (calculated by adding $14,566.80 in SSA disability income and $2,952 in SSA death benefit income). Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2013 for an appellant with no dependents was $8,485, and 5 percent of that amount is $424.25. Therefore, in calculating the appellant's countable expenses, only unreimbursed medical expenses in excess of $424.25 can be considered. As noted, the appellant's annualized unreimbursed medical expenses for calendar year 2013 were $2,936.66. Deducting the $424.25 (5 percent of MAPR) from $2,936.66 (total unreimbursed expenses for the annualization period from December 1, 2013) results in $2,512.41 in deductible unreimbursed expenses for the annualization period from December 1, 2013. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $17,518.80 per year for the annualization period from December 1, 2013, the resulting countable income is $15,006.39, which is higher than the relevant MAPR amount of $8,485. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of additional eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for survivors' pension purposes for this period. Based on the foregoing, the Board finds that, for the period from December 1, 2013 to December 31, 2013, the appellant's countable income exceeded the relevant MAPR. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for this period. From January 1, 2014 to March 31, 2014 For survivors' pension purposes, the MAPR for a surviving spouse with no dependent children was $8,485 for this period. See Pension Rate Tables, effective December 1, 2013, available at https://www.benefits.va.gov/PENSION/rates survivor_pen13.asp (accessed on December 13, 2021). For the annualization period from January 1, 2014, the appellant's income was above the relevant MAPR amount. A May 2016 SSA inquiry report shows that the appellant was in receipt of SSA disability income of $1,213.90 per month ($14,566.80 per year), as well as SSA death benefits of $246 per month ($2,952 per year). Based on the foregoing, the appellant's total annualized income was $17,518.80 effective January 1, 2014 (calculated by adding $14,566.80 in SSA disability income and $2,952 in SSA death benefit income). Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2013 for an appellant with no dependents was $8,485, and 5 percent of that amount is $424.25. Therefore, in calculating the appellant's countable expenses, only unreimbursed medical expenses in excess of $424.25 can be considered. In this case, with regard to the annualized period from January 1, 2014, the appellant reported unreimbursed medical expenses totalling $4,415.88, consisting of Medicare Part B premiums and private health insurance premiums, as well as mileage expenses of $1,225.08 (2952 miles multiplied by 41.5 cents per mile). See February 2016 VA Form 21P-8416 (for calendar year 2014). Deducting the $424.25 (5 percent of MAPR) from $4,415.88 (total unreimbursed expenses for the annualization period from January 1, 2014) results in $3,991.63 in deductible unreimbursed expenses for the annualization period from January 1, 2014. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $17,518.80 per year for the annualization period from January 1, 2014, the resulting countable income is $13,527.17, which is higher than the relevant MAPR amount of $8,485. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of additional eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for survivors' pension purposes for this period. Based on the foregoing, the Board finds that, for the period from January 1, 2014 to March 30, 2014, the appellant's countable income exceeded the relevant MAPR. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for this period. From April 1, 2014 to November 30, 2014 For survivors' pension purposes, the MAPR for a surviving spouse with no dependent children was $8,485 for this period. See Pension Rate Tables, effective December 1, 2013, available at https://www.benefits.va.gov/PENSION/rates survivor pen13.asp (accessed on December 13, 2021). For the annualization period from April 1, 2014, the appellant's income was above the relevant MAPR amount. A May 2016 SSA inquiry report shows that the appellant was in receipt of SSA disability income of $1,479 per month ($17,748 per year), and that the monthly amount of SSA death benefits was discontinued effective April 1, 2014. Based on the foregoing, the appellant's total annualized income was $17,748 effective April 1, 2014. Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2013 for an appellant with no dependents was $8,485, and 5 percent of that amount is $424.25. Therefore, in calculating the appellant's countable expenses, only unreimbursed medical expenses in excess of $424.25 can be considered. In this case, with regard to the annualized period from April 1, 2014, the appellant reported unreimbursed medical expenses totalling $4,415.88, consisting of Medicare Part B premiums and private health insurance premiums, as well as mileage expenses of $1,225.08 (2,952 miles multiplied by 41.5 cents per mile). See February 2016 VA Form 21P-8416 (for calendar year 2014). Deducting the $424.25 (5 percent of MAPR) from $4,415.88 (total unreimbursed expenses for the annualization period from January 1, 2014) results in $3,991.63 in deductible unreimbursed expenses for the annualization period from April 1, 2014. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $17,748 per year for the annualization period from January 1, 2014, the resulting countable income is $13,756.37, which is higher than the relevant MAPR amount of $8,485. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of additional eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for survivors' pension purposes for this period. Based on the foregoing, the Board finds that, for the period from April 1, 2014 to November 30, 2014, the appellant's countable income exceeded the relevant MAPR. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for this period. From December 1, 2014 to December 31, 2014 For survivors' pension purposes, the MAPR for a surviving spouse with no dependent children was $8,630 for this period. See Pension Rate Tables, effective December 1, 2013, available at https://www.benefits.va.gov/PENSION/rates survivor_pen14.asp (accessed on December 13, 2021). For the annualization period from December 1, 2014, the appellant's income was above the relevant MAPR amount. A May 2016 SSA inquiry report shows that the appellant was in receipt of SSA disability income of $1,504.90 per month ($18,058.80 per year). Based on the foregoing, the appellant's total annualized income was $18,058.80 effective December 1, 2014. Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2014 for an appellant with no dependents was $8,630, and 5 percent of that amount is $431.50. Therefore, in calculating the appellant's countable expenses, only unreimbursed medical expenses in excess of $431.50 can be considered. As noted, the appellant's annualized unreimbursed medical expenses for calendar year 2014 were $4,415.88. Deducting $431.50 (5 percent of MAPR) from $4,415.88 (total unreimbursed expenses for the annualization period from December 1, 2014) results in $3,984.38 in deductible unreimbursed expenses for the annualization period from December 1, 2014. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $18,058.80 per year for the annualization period from December 1, 2014, the resulting countable income is $14,074.42, which is higher than the relevant MAPR amount of $8,630. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of additional eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for survivors' pension purposes for this period. Based on the foregoing, the Board finds that, for the period from December 1, 2014 to December 31, 2014, the appellant's countable income exceeded the relevant MAPR. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for this period. From January 1, 2015 to December 31, 2015 For survivors' pension purposes, the MAPR for a surviving spouse with no dependent children was $8,630 for this period. See Pension Rate Tables, effective December 1, 2014, available at https://www.benefits.va.gov/PENSION/rates survivor_pen14.asp (accessed on December 13, 2021). For the annualization period from January 1, 2015, the appellant's income was above the relevant MAPR amount. A May 2016 SSA inquiry report shows that the appellant was in receipt of SSA disability income of $1,504.90 per month ($18,058.80 per year). Based on the foregoing, the appellant's total annualized income was $18,058.80 effective January 1, 2015. Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2014 for an appellant with no dependents was $8,630, and 5 percent of that amount is $431.50. Therefore, in calculating the appellant's countable expenses, only unreimbursed medical expenses in excess of $431.50 can be considered. In this case, with regard to the annualized period from January 1, 2015, the appellant reported unreimbursed medical expenses totalling $3,611.78, consisting of Medicare Part B premiums and private health insurance premiums, as well as mileage expenses of $499.10 (868 miles multiplied by 57.5 cents per mile). See February 2016 VA Form 21P-8416 (for calendar year 2015). Deducting the $431.50 (5 percent of MAPR) from $3,472.90 (total unreimbursed expenses for the annualization period from January 1, 2015) results in $3,180.28 in deductible unreimbursed expenses for the annualization period from January 1, 2015. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $18,058.80 per year for the annualization period from January 1, 2015, the resulting countable income is $14,878.52, which is higher than the relevant MAPR amount of $8,630. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of additional eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for survivors' pension purposes for this period. Based on the foregoing, the Board finds that, for the period from January 1, 2015 to December 31, 2015, the appellant's countable income exceeded the relevant MAPR. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for this period. From January 1, 2016 to November 30, 2016 For survivors' pension purposes, the MAPR for a surviving spouse with no dependent children was $8,630 for this period. See Pension Rate Tables, effective December 1, 2014, available at https://www.benefits.va.gov/PENSION/rates survivor_pen14.asp (accessed on December 13, 2021). For the annualization period from January 1, 2016, the appellant's income was above the relevant MAPR amount. A May 2016 SSA inquiry report shows that the appellant was in receipt of SSA disability income of $1,504.90 per month ($18,058.80 per year). Based on the foregoing, the appellant's total annualized income was $18,058.80 effective January 1, 2016. Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2014 for an appellant with no dependents was $8,630, and 5 percent of that amount is $431.50. Therefore, in calculating the appellant's countable expenses, only unreimbursed medical expenses in excess of $431.50 can be considered. In this case, with regard to the annualized period from January 1, 2016, the appellant reported unreimbursed medical expenses totalling $3,378.90, consisting of Medicare Part B premiums and private health insurance premiums, as well as mileage expenses of $266.22 (493 miles multiplied by 54 cents per mile). See February 2016 VA Form 21P-8416 (for calendar year 2016). Deducting the $431.50 (5 percent of MAPR) from $3,878.90 (total unreimbursed expenses for the annualization period from January 1, 2016) results in $2,947.40 in deductible unreimbursed expenses for the annualization period from January 1, 2016. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $18,058.80 per year for the annualization period from January 1, 2016, the resulting countable income is $15,111.40, which is higher than the relevant MAPR amount of $8,630. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of additional eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for survivors' pension purposes for this period. Based on the foregoing, the Board finds that, for the period from January 1, 2016 to November 30, 2016, the appellant's countable income exceeded the relevant MAPR. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for this period. In sum, the Board finds that, for the entire period on appeal prior to December 1, 2016, the appellant's countable annual income exceeded the relevant MAPR that applied to a surviving spouse with no dependent children. Accordingly, she did not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and survivors' pension is, therefore, not warranted for any portion of the period on appeal prior to December 1, 2016. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. The appellant has applied for DIC benefits under 38 U.S.C. § 1318. VA pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since the veteran's release from active duty and for at least five years immediately preceding death; or (3) if 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(b). For purposes of 38 U.S.C. § 1318, "entitled to receive" means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22. In the present case, the Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits have not been met. First, the service records do not reflect that the Veteran was a POW. As such, entitlement to benefits cannot be considered on that basis. Second, the Veteran was not service connected for any disability during his lifetime. As he was not rated totally disabled for the five years immediately following his service separation, and was not rated totally disabled for at least 10 years prior to death in September 2012, the alternative eligibility requirements for DIC under 38 U.S.C. § 1318 have not been met. Therefore, DIC under 38 U.S.C. § 1318 is precluded. Per application of Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C. § 1318, also known as "hypothetical entitlement." See also Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. In sum, as the evidence shows that the Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) was not continuously rated totally disabled since his release from active duty, and (iii) was not a former POW. As such, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. Under the circumstances, the Board must find that the appellant's claim is without legal merit. As the law is dispositive, the appeal of this issue must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to accrued benefits is denied The appellant has also applied for accrued benefits. Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which that individual 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. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). There is no basis for an accrued benefits claim unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In the instant case, the Veteran was not in receipt of any VA benefits during his lifetime. Therefore, at the time of his death, there were no VA benefits which were due and unpaid. In addition, he did not otherwise have any claim for VA benefits pending at the time of his death. Based on the foregoing, this is a case where the law is dispositive. Entitlement to accrued benefits is precluded because there were no VA benefits to which the Veteran was entitled, which were due and unpaid at the time of his death, and a claim for VA benefits was not pending at the time of his death. Accordingly, the Board must deny the claim. As the disposition of this issue is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis, 6 Vet. App. 426. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant's remaining claims and to afford her every possible consideration. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran's death certificate lists the immediate cause of his death as cardio-respiratory arrest due to alcohol-related dementia and adult failure to thrive. He was not service connected for these disabilities at the time of his death. The appellant maintains, in essence, that the Veteran's cause of death was related to his military service. Specifically, she contends that he suffered from dementia due to posttraumatic stress disorder (PTSD). She asserts that he had a mental condition that cause him to abuse alcohol, which, in turn, caused his dementia. See, e.g., March 2016 VA Form 9. The record reflects that the Veteran was diagnosed with depression and anxiety during his lifetime. See, e.g., November 2010 VA treatment record. He also reported to an October 2009 VA clinician that he served in Vietnam and that he most likely had PTSD. In the context of a claim involving service connection for the cause of a veteran's death, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim under 38 U.S.C. § 5103A(a). See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under this standard, VA is excused from providing such assistance only "when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008) (quoting 38 U.S.C. § 5103A(a)(2)). To date, no medical opinion has been obtained as to the likelihood that the cause of the Veteran's death was related to service. Because the Board cannot conclude that there is no reasonable possibility that obtaining such an opinion would aid in substantiating the appellant's claim, further development is required. 38 U.S.C. § 5103A(a)(2). The Board also notes that the claims file does not appear to contain the Veteran's military personnel records. Because such records, if obtained, could bear on the outcome of the appellant's appeal, efforts must be made to procure them. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 2. Entitlement to survivors' pension benefits for the period from December 1, 2016 is remanded. With respect to the appellant's entitlement to survivors' pension benefits for the period from December 1, 2016, the Board finds that additional development is needed prior to rendering a decision on the matter. First, the record does not show that the AOJ has undertaken any development in order to verify the SSA income paid to the appellant during the period from December 1, 2016. Moreover, while the appellant reported unreimbursed medical expenses for calendar years 2013, 2014, 2015, and 2016, the record does not contain any evidence pertaining to unreimbursed medical expenses for calendar years starting January 1, 2017. Additional development is required. These matters are REMANDED for the following action: 1. Request from all appropriate source(s) a complete copy of the Veteran's service personnel records. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and her representative should be notified. 2. Request that the appellant provide updated information with respect to her household income and unreimbursed medical expenses for the annualized periods from January 2017 to the present, to include proof of any income and expense information reported. 3. Verify the Veteran's Social Security income for all periods from December 2016 to the present. All efforts to obtain such information must be documented in the claims file. 4. Arrange to have a clinician with appropriate experience review the claims file and provide opinions with respect to each of the following questions: a. Is it at least as likely as not (i.e., is it 50 percent or more probable) that a principal or contributory cause of the Veteran's death was related to any aspect of his active service? b. Is it at least as likely as not that the Veteran had a psychiatric disability that was related to any aspect of his military service, to include his service in Vietnam? If so, what was the nature of that disability? c. If it is at least as likely as not that the Veteran had a psychiatric disability that was related to his miliary service, is it also at least as likely as not that his psychiatric disability caused or aggravated his abuse of alcohol? A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. Allow an appropriate period of time for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.