Citation Nr: 21029199 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-44 522 DATE: May 12, 2021 ORDER Entitlement to survivors' pension benefits for the period on appeal from January 1, 2016 to August 26, 2020 is denied. REMANDED ISSUE Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The Appellant has excessive income to qualify for VA survivors' pension benefits in the years 2016, 2017, 2018, 2019, and 2020. CONCLUSION OF LAW The criteria for entitlement to VA survivors' pension benefits for the years 2016, 2017, 2018, 2019, and 2020 have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1967 to August 1971. During his period of service, he earned the Combat Action Ribbon, Meritorious Unit Commendation, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with five (5) Stars, Republic of Vietnam Meritorious Unit Citation with Palm, and Vietnam Campaign Medal. The Veteran died in March 1997. The Appellant is his surviving spouse. Pension 1. Entitlement to survivors' pension benefits 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). Here, the Veteran served in the United States Marine Corps from September 1967 to August 1971. Accordingly, the Veteran served for longer than 90 days during the Vietnam War era, thus meeting the service requirement for improved death pension. 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 is published in Appendix BVA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.24. The MAPR is revised every December 1st and is applicable for the following 12-month period. 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. 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, the Board 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). The MAPR for a surviving spouse with no dependents was $8,630.00, effective December 1, 2014. The MAPR did not increase again until December 1, 2016. A 2016 Social Security Administration (SSA) benefit statement shows that the Appellant received $13,954.80. Because unreimbursed medical expenses are only deducted when they are in excess of five percent of the applicable MAPR, the Board has calculated the Appellant's annualized income based on the benefit amount shown on the SSA benefit statement prior to any SMI premium deduction. Therefore, the Appellant had an annualized income of $13,954.80. Unreimbursed medical expenses included annual Medicare Part B insurance premiums totaling $1,258.00. When reduced by five percent of the MAPR (or $431.00), the allowable medical expenses are $827.00. Accordingly, the Appellant's countable income was $13,127.80, which exceeded the MAPR for a surviving spouse with no dependents for 2016. Beginning December 1, 2016, the MAPR for a surviving spouse with no dependents was $8,656.00. A 2017 SSA benefit increase statement shows that benefits were paid at a rate of $1,165.00 per month. Therefore, the Appellant had an annualized income of $13,980.00. Unreimbursed medical expenses included Medicare insurance premiums in the amount of $107.00 per month, which totaled $1,284.00 annually. When reduced by five percent of the MAPR (or $432.00), the allowable medical expenses are $852.00. Accordingly, the Appellant's countable income was $13,128.00, which exceeded the MAPR for a surviving spouse with no dependents. Beginning December 1, 2017, the MAPR for a surviving spouse with no dependents was $8,830.00. A 2018 SSA benefit increase statement shows that benefits were paid at a rate of $1,189.00 per month. Therefore, the Appellant had an annualized income of $14,268.00. Unreimbursed medical expenses included Medicare insurance premiums in the amount of $131.00 per month, which totaled $1,572.00 annually. When reduced by five percent of the MAPR (or $442.00), the allowable medical expenses are $827.00. Accordingly, the Appellant's countable income was $13,138.00, which exceeded the MAPR for a surviving spouse with no dependents. Beginning December 1, 2018, the MAPR for a surviving spouse without a dependent child was $9,078.00. A 2019 SSA benefit increase statement shows that benefits were paid at a rate of $1,222.50 per month. Therefore, the Appellant had an annualized income of $14,670.00. Unreimbursed medical expenses included Medicare insurance premiums in the amount of $135.50 per month, which totaled $1,626.00 annually. When reduced by five percent of the MAPR (or $453.00), the allowable medical expenses are $827.00. Accordingly, the Appellant's countable income was $13,497.00, which exceeded the MAPR for a surviving spouse with no dependents. Beginning December 1, 2019, the MAPR for a surviving spouse with no dependents was $9,224.00. A 2020 SSA benefit increase statement shows that benefits were paid at a rate of $1,241.60 per month. Therefore, the Appellant had an annualized income of $14,899.20. Unreimbursed medical expenses included Medicare insurance premiums in the amount of $144.60 per month, which totaled $1,735.20 annually. When reduced by five percent of the MAPR (or $461.00), the allowable medical expenses are $827.00. Accordingly, the Appellant's countable income was $13,625.00, which exceeded the MAPR for a surviving spouse with no dependents. The Board notes that while this matter was on appeal, the Appellant filed a supplemental claim of entitlement to (SMP) based on the need for regular aid and attendance in August 2020, which was subsequently established, effective August 26, 2020. Here, the undisputed facts in this case establish that the Appellant's countable annual income has exceeded the MAPR for a surviving spouse with no dependents for the period on appeal from January 1, 2016 to August 26, 2020. Accordingly, the Board finds that, even approaching this claim as sympathetically as the evidence will allow, it must be denied based on a lack of entitlement under the law. 38 U.S.C. § 1541; 38 C.F.R. § 3.1000(c); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REMAND Entitlement to service connection for the cause of the Veteran's death Death benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active military service either caused or contributed substantially or materially to the Veteran's demise. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and a veteran's death. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Certain diseases have been determined to be associated with the use of herbicides in Vietnam and VA regulations identify those diseases that are presumptively associated with herbicide exposure in Vietnam. 38 C.F.R. § 3.309(e). Hypertension is not a disease identified as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). However, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. In this case, the Veteran's certificate of death reflects that he died in March 1997. The cause of death was listed as cerebrovascular accident due to or as a consequence of hypertension. At the time of his death, the Veteran was not service-connected for any disability. The Appellant contends that the Veteran's hypertension was related to the Veteran's military service, to include exposure to herbicide agents. As the Veteran served within the Republic of Vietnam during the Vietnam Era, his exposure to herbicides in service is presumed. 38 C.F.R. § 3.307(a)(6). Hypertension, however, is not a disease presumed due to herbicide exposure, and service connection cannot be granted on that presumptive basis. 38 C.F.R. § 3.309(e). Even though service connection is not warranted on a presumptive basis, the Board must consider whether service connection is warranted on any other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records do not reflect a diagnosis of, or complaints related to, hypertension during his period of active service. Further, the Veteran's post-service treatment records do not document a diagnosis of hypertension within one year of active duty service. A private physician statement was associated with the claims file in December 2017. Based on a review of the Veteran's service treatment records, Dr. L. W. opined that the Veteran's end-stage renal failure was due to hypertension that was manifested prior to separation from service. The physician further explained that the Veteran's hypertension was the underlying cause of the stroke, which caused his death. Pursuant to the September 2020 Board remand, a VA medical opinion was obtained in November 2020 to evaluate whether the Veteran's exposure to herbicide agents during service caused his hypertension. Having reviewed the private opinion provided by Dr. L. W., the VA examiner explained that there was no objective data to support the opinion. She noted that the cause of death cited by Dr. L. W. was certainly possible; however, the circumstances of the death and subsequent emergency room medical record do not definitively show cause of death. Further, there was no indication that an autopsy with toxicology was performed, which would be the only way to have determined the Veteran's cause of death. The VA examiner indicated that there were many possibilities, such as drug overdose, given the Veteran's history of opiate abuse; accidental head injury, given the laceration to his head; any manner of dozens of other natural causes of death; or the cause named on the death certificate. Unfortunately, without an autopsy, the cause indicated on the death certificate is speculative in nature. Further, although Dr. L. W. averred that the Veteran had hypertension prior to separation, the evidence in support of his statement was not identified in the Veteran's service treatment records (STRs). Accordingly, the VA examiner opined that it was less likely as not that the Veteran's hypertension had its onset in, was caused or aggravated by, or was otherwise related to his service, to include exposure to herbicides. In support of her opinion, the VA examiner explained that there was nothing intrinsic to military service that caused hypertension, as root of hypertension is heredity, or inheritance of its tendency. Here, the Veteran had a strong family history of hypertension, as documented in the available medical records. There is insufficient evidence of elevated blood pressures, diagnosed or documented hypertension, or treatment for hypertension, during active duty service. There is also insufficient evidence of aggravation of hypertension as due to service. The VA examiner further opined that the Veteran's hypertension was less likely as not due to herbicide exposure during service. In support of her opinion, the VA examiner explained that of the six studies that the National Academy of Sciences (NAS) reviewed in reaching their opinion regarding the likelihood of an association between hypertension and exposure to herbicide agents, to include Agent Orange, only one was considered to be a well-designed study likely to have valid, scientifically reproducible conclusions. The other five studies had one or more significant study design deficiencies, making them scientifically insufficient in evidence. The VA examiner cited the first study, which showed that the mean serum tetrachlorodibenzodioxin (TCDD) levels were significantly higher among Vietnam herbicide sprayers than among Vietnam non-sprayers; however, there were no differences in mean TCDD level observed between non-Vietnam-deployed sprayers and non-sprayers. In this case, the VA examiner noted that the Veteran would be considered a non-sprayer and at lower risk. Even with a typical tour of nearly a year in Republic of Vietnam, only the sprayers had a statistically significant mean serum TCDD level. Using logistic regression and adjusting for Vietnam service status, rank, age at the time of the survey, tobacco use, alcohol use, race, and BMI, having sprayed herbicides and having deployed to Vietnam were both strongly associated with self-reported hypertension. The association was strongest when comparing Vietnam-deployed sprayers to non-Vietnam-deployed non-sprayers. Finally, among Vietnam-deployed veterans, a significantly elevated association between the odds of hypertension for sprayers and non-sprayers remained after an adjustment was made for potential confounders. Similarly, for those veterans who did not deploy to Vietnam, self-reported hypertension was significantly elevated when sprayers were compared with non-sprayers. In pertinent part, the VA examiner explained that odds ratios are a statistic that quantifies the strength of the association between two events. Here, all the odds ratios listed for the aforementioned categories studied were less than 2.0, even for the Republic of Vietnam-deployed sprayers. The examiner noted that an odds ratio less than 2.0 means the studied risk factor is less likely than not causally related. Unfortunately, the VA examiner did not address the Board's remand directive identifying the standard for diagnosing hypertension, which is significant given the private medical opinion. This case must be remanded for compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). The Board also observes that the VA examiner opined that, absent an autopsy, the cause indicated on the death certificate is speculative in nature. The appellant is hereby advised that an autopsy may help to resolve the speculative nature of the medical cause of death. Accordingly, this matter is REMANDED for the following: Obtain an addendum opinion addressing the prior Board remand directive to identify the standard for diagnosing hypertension. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.