Citation Nr: 21013547 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-63 525 DATE: March 9, 2021 ORDER Entitlement to non-service connected death pension benefits prior to November 3, 2017 is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance on an accrued basis is granted. FINDINGS OF FACT 1. The appellant’s countable income for the period pertinent to the appellant’s claim exceeded the maximum annual income for pension benefits. 2. The evidence of record prior to the Veteran’s death show that his service-connected disability rendered him in need of the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for non-service connected death pension benefits are not met. 38 U.S.C. §§ 1521, 1541, 1543; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. 2. The criteria for entitlement to SMC based on the need for aid and attendance have been satisfied on an accrued basis. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A Board hearing was held in July 2019. However, due to audio malfunctions the transcript is unavailable. In December 2020, the appellant was offered the opportunity to appear at an additional Board hearing. She did not respond within 30 days and the Board will therefore presume she does not wish to have an additional hearing. 1. Death Pension The appellant is the surviving spouse of a veteran who had qualifying wartime service; as such, she may be entitled to a rate of pension set by law, reduced by the amount of her countable income. 38 U.S.C. § 1541; 38 C.F.R. § 3.23. The AOJ granted the appellant death pension benefits effective November 3, 2017 and this decision therefore only addresses the period prior to that date. Non-service connected death pension is an income-based benefit for low income qualifying survivors, and the maximum rate of death pension benefits that may be paid is set by law. An otherwise qualifying claimant will be paid up to the maximum rate, reduced by the amount of his or her countable income. 38 U.S.C. § 1541; 38 C.F.R. § 3.23. In other words, any countable income of the appellant will reduce the pension benefits, dollar for dollar, by the amount of the income. Thus, if the appellant’s annual income exceeds the maximum annual pension rate (MAPR), the entire amount is offset, and the appellant is not entitled to any death pension benefits. 38 C.F.R. §§ 3.21, 3.23. In determining income for purposes of entitlement to death pension, payments of any kind from any source are counted as income during the 12-month period in which received unless specifically excluded under 38 C.F.R. § 3.272. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Medical expenses in excess of five percent of the MAPR, 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)(2)(iii). The Veteran died October 2015. In November 2015, the appellant filed a claim for entitlement to death pension benefits. For calendar year 2015, the MAPR for death pension for a surviving spouse with no dependents was $8,630. The five percent deductible threshold for medical expenses was $431. For calendar years 2016 and 2017, the MAPR for death pension for a surviving spouse with no dependents was $8,656. The five percent deductible threshold was $432. The appellant did not report her income or assets in her November 2015 VA Form 21-534EZ. But records from the Social Security Administration (SSA) shows that the appellant received $1,555 per month as of November 2015. In a September 2016 letter, the appellant reported a monthly income of $1,555 in SSA payments, $161 in pension payments from her former employer, and $500 from a savings annuity. Her reported total monthly income was $2,216. Multiplied by 12 months in a year, the appellant had a total income of $26,592. Accordingly, the Board finds that for the annualization periods beginning in November 2015 and November 2016, the appellant had total income of $26,592. On the November 2015 VA Form 21-534EZ, the appellant did not list any medical or other unreimbursed expenses. Although the appellant reported in her September 2016 statement that she had paid medical expenses medical bills, she did not list any specific medical expenses. However, in the November 2016 statement of the case, the AOJ verified the appellant paid $1,258 in Medicare Part B premiums during the year. Again, paid medical expenses in excess of five percent of the MAPR may be excluded from an individual’s income. Accordingly, the 2015 $431 five percent deductible threshold for medical expenses is subtracted from the reported medical expenses of $1,258, for a total of $827 in deductible medical expenses. For 2016 the $432 five percent deductible threshold for medical expenses is subtracted from the reported medical expenses of $1,258, for a total of $826 in deductible medical expenses For the annualized 2015 period, the appellant’s total countable income of $26,592, reduced by the deductible medical expenses of $827, provides a total income of $25,765. And for the annualized 2016 period, the appellant’s total countable income of $26,592, reduced by the deductible medical expenses of $828, provides a total income of $25,764. The appellant did not provide any additional income or expense information prior to November 3, 2017, the effective date the AOJ grant of benefits. Accordingly, the Board finds the appellant’s income exceeded the maximum countable income for death pension benefits for the annualization periods from November 2015 to November 2016 and from November 2016 to November 2017. As the appellant’s countable income exceeds the maximum annual income allowed for the payment of death pension benefits, the appellant is precluded from receiving death pension benefits prior to November 3, 2017. See 38 C.F.R. § 3.23 (a)(5). The preponderance of the evidence is against the claim, and therefore the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. SMC The appellant asserts the Veteran was entitled to SMC based on the need for regular aid and attendance of another person due to his service-connected disabilities prior to his death. For situations where a Veteran had a claim pending at the time of death, a surviving spouse may be paid periodic monetary benefits to which the Veteran was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when he died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Although the appellant’s claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is “derivative of” the Veteran’s claims and the appellant takes the Veteran’s claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 123 (Fed. Cir. 1996). 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 is the Veteran’s surviving spouse, the Veteran had a claim pending at the time of his death, and the appellant filed a claim for accrued benefits within one year of the Veteran’s death. But for the appellant to prevail, the evidence at the time of the Veteran’s death must show that the Veteran was entitled to the grant of his claims for service connection. SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). It is not required that all the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352 (a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The particular personal function which a veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222 (1996). Prior to his death, the Veteran was service connected for the bilateral upper and lower extremity neuropathy and degenerative joint disease resulting from cold injuries, bilateral hearing loss, and tinnitus. The evidence of record prior to the Veteran’s death includes VA treatment records from May 2014, November 2014, and May 2015 that show the Veteran was dependent on assistance to bathe and dress. The May 2015 VA treatment record includes a report that the Veteran had fallen in the shower at least three times in the prior month. The appellant was the Veteran’s primary caregiver and a home health aid provided additional assistance. A February 2015 VA Form 21-2680 completed by Dr. L.O, a VA practitioner, indicated the Veteran was in need of aid and attendance due to memory loss, but also found that due to the neuropathy resulting from his cold injuries, the Veteran was hardly able to walk and fell frequently. (Continued on the next page)   After consideration of all the evidence of record, and resolving reasonable doubt in the appellant’s favor, the Board finds that when considered together, the Veteran had difficulty attending to the activities of daily living, including dressing and bathing due to his service connected cold injury residuals, and the factual need for aid and attendance due to his service-connected disabilities prior to his death is established. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.