Citation Nr: 21041446 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-32 532 DATE: July 9, 2021 ORDER Entitlement to VA survivor's pension benefits is denied. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. VA is unable to determine the appellant's countable income and net worth due to a lack of information as to her dependent child's income and net worth. 2. A continuity of symptomatology beginning in service for hypertension has been demonstrated. 3. The Veteran's hypertension was a contributory cause of his death. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment of VA survivor's pension benefits have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. 2. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from August 1979 to August 1999, including service in the Southwest Asia theater of operations from December 1990 to May 1991. He died in April 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s January 2013 decision. In March 2021, the appellant testified during a virtual hearing before the undersigned Veterans Law Judge, the transcript of which is associated with the claims file. 1. Entitlement to VA survivor's pension benefits The appellant is seeking entitlement to VA survivor's pension benefits. Generally, VA death benefits are payable to a veteran's surviving spouse, child, or dependent parent. See 38 C.F.R. §§ 3.3, 3.5 and 3.1000. VA survivor's pension is a benefit payable in certain circumstances to a surviving spouse because of a veteran's non-service-connected death. Basic entitlement exists if (i) the veteran had qualifying service or, (ii) the veteran was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on service during a period of war; 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 specified in 38 C.F.R. §§ 3.23 and 3.24. 38 C.F.R. §§ 3.3(b)(4); see also 38 U.S.C. §§ 101 (8), 1521(j), 1541(a); 38 C.F.R. §§ 3.23(a)(5), (d)(5). In the present case, there is no issue that the appellant has basic eligibility to VA survivor's pension benefits as the Veteran had qualifying wartime service and was in receipt of service-connected compensation for a disability based on such service. Rather, the issue in the present case is whether the appellant meets the requisite net worth and income requirements for entitlement to payment of VA survivor's benefits. Unfortunately, the Board finds that the appellant has not provided sufficient information regarding her family income and net worth so that VA may determine her pension entitlement. Basic entitlement to pension exists if, among other things, the claimant's annual 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(b)(4)(iii). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. 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 a claimant's countable annual income. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23(b). Annual income includes the surviving spouse's own annual income, and, with certain exceptions, the annual income of each child of the veteran in the custody of the surviving spouse. 38 C.F.R. § 3.23 (d)(5). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, one-time lump sum payments or similar income, even if waived) shall be included during the 12-month annualization period in which received, except for income specifically excluded. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271(a), 3.272. Gross income received is counted rather than the amount of the payment a beneficiary receives, except where certain expenses are allowed to be deducted (e.g., necessary operating expenses are deductible from business, farm or professional income and medical, legal or other expenses incident to an injury or death or expenses incident to the collection or recovery of the amount of an award or settlement for an injury or death are deductible from compensation received for an injury or death). The amount of recurring and irregular income anticipated or received by a beneficiary shall be added to determine the beneficiary's annual rate of income for a 12-month annualization period commencing at the beginning of the 12-month annualization. 38 C.F.R. § 3.273(d). The amount of nonrecurring income (e.g., an inheritance) received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). For purposes of calculating countable income, total income may be reduced by amounts paid by a claimant for unreimbursed medical expenses that are "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 claimant received no reimbursement, such as from an insurance company. However, medical insurance premiums themselves, including Medicare Plan B premiums deducted from Social Security benefits, may be applied to reduce countable income. The appellant was initially awarded pension benefits in a June 2016 decision letter for the period of May through September 2016 based on her report in her initial application that she did not have any income, net worth or dependents. However, these benefits were stopped effective October 1, 2016 due to an increase in the appellant's income that caused her income to exceed her allowable annual maximum income for a surviving spouse with no dependents. The increase in income was the result of the appellant being awarded Social Security benefits. In December 2016, the appellant submitted a VA Form 21P-8416, Medical Expense Report (MER), seeking a reduction in her income based upon unreimbursed medical expenses for herself and her disabled daughter who lived with her. However, this was the first time she reported that she has a dependent child. In a March 2017 decision letter, the appellant's request for additional pension benefits due to unreimbursed medical expenses was denied because either the expenses reported were not paid within the applicable period or they did not exceed the five percent deductible of $431.00. The appellant was also advised that the medical expenses for which she listed "on-going" as a date paid were not acceptable because VA cannot count projected medical expenses for such expenses and that, if she wishes to claim these expenses, she would have to provide proof of payment. This letter also acknowledged the appellant's report of having a disabled child and advised her on how to establish that she is a helpless child. Furthermore, after learning about her dependent daughter, in a March 2018 letter, the appellant was advised that, although her daughter was found to be a helpless child, she is not considered a dependent for determining pension entitlement because the appellant had not reported her daughter's income and net worth. She was advised to provide this information on the forms sent to her. However, although she submitted some forms, she failed to report her daughter's income and net worth. In addition, during a telephone call with the appellant in which this letter was reviewed, she was advised of the reason why her benefits were being terminated but she contended VA should have known about her daughter being a helpless child stating that the Veteran reported her status as such while he was on active duty. She also contended that her daughter's income was "her own" and that she had no access to it. Based on these reports, the appellant was sent VA Form 21-0571 in March 2018 to apply for an exclusion of her daughter's income. However, as the appellant did not provide her daughter's income and net worth as requested, her pension benefits were terminated retroactively to May 1, 2016, the date she was initially awarded payment of pension benefits. See May 2018 decision letter. Although this created an overpayment, the Board notes that recovery of that overpayment has been waived. See September 2018 Decision of Waiver on Indebtedness (VA Form 4-1837). Subsequently, the appellant submitted additional VA forms, including the VA Form 21-0571, but she has not reported her daughter's income and net worth information. Based on the foregoing, the Board finds that the appellant is disagreeing with VA's refusal to reinstate her pension benefits on two grounds. The first ground is that VA is not taking into consideration her medical expenses. The second ground is that VA has not excluded her helpless child's income as she has asked. As to the appellant's contention that VA should count her unreimbursed medical expenses, the Board finds that she has failed to submit the appropriate documentation to support her claim for unreimbursed medical expenses as she has either not properly completed the required form or has not submitted the proper supporting documentation to demonstrate that she has paid the medical expenses she has claimed. The appellant disagreed with the March 2017 decision denying the reinstatement of her pension benefits asserting that she has medical expenses that should be considered. In addition to the December 2016 MER, the appellant subsequently submitted several additional MERs. However, she has either not properly completed the form or not provided proof of payment of the expenses reported. See VA Form 21P-8416 received in April 2017 (form not properly completed), October 2017 (proof of payment not provided), and January 2018 (form not properly completed). The appellant has consistently reported other expenses under the section for reporting expenses related to transportation of medical purposes without explaining what those expenses are for. Although it seems these expenses may be copays for doctor visits and prescriptions, VA cannot guess at the purpose of the reported expenses. The appellant has also consistently failed to provide actual dates of payment for these expenses, instead stating they are "on-going," "current" or "pending." None of such statements demonstrate that the expenses reported were paid within the 12-month or less timeframe the report covers. To establish that the expenses are for medical purposes and that they were paid within the reporting period covered by the MER, the appellant needs to fully complete the form providing detailed information as requested on the form and in the appropriate sections and columns. Moreover, the Board acknowledges that the appellant has submitted invoices showing her and her daughter's medical expenses. However, she has not submitted proof that these invoices have been paid and, in fact, it appears that she has indicated that most of them have not, such as by inserting "pending" in the Date Paid column. As set forth above, only expenses actually paid by the claimant and/or a dependent family member within the reporting period can be counted to reduce one's income for VA purposes. Thus, it is necessary for the appellant to establish that she actually paid these expenses. The Board cannot determine from the information provided what expenses were actually paid and which ones are still unpaid. In addition, the appellant reported medical expenses for her daughter on the MERs. However, in asserting that she does not have access to her daughter's income, the appellant contends that her daughter's income goes towards paying her medical expenses. Therefore, unless the appellant provides proof that she personally paid for these expenses for her daughter, such expenses cannot reduce her countable income. Such documentation has not been provided to date. Moreover, the appellant's daughter has not been recognized as a dependent for determining the appellant's countable income because the appellant has not provided her income and net worth information. Even though the appellant is claiming that she does not have access to her daughter's income, she is still required to report her daughter's income and net worth. The Board acknowledges that the appellant has applied for an exclusion of her daughter's income, but that does not alleviate her obligation to report her dependent children's income. VA regulations state that income of a child in the custody of the surviving spouse will be included if it is reasonably available to or for the surviving spouse. A hardship exclusion of a child's income may be granted if the family's expenses necessary for reasonable family maintenance are higher than the countable annual income, including VA pension entitlement. When hardship is established, there shall be excluded from the available income of any child an amount equal to the amount by which annual expenses necessary for reasonable family maintenance exceed the sum of countable annual income plus VA pension entitlement, computed without consideration of this exclusion. The amount of this exclusion shall not exceed the available income of any child or children, and annual expenses necessary for reasonable family maintenance shall not include any expenses which were considered in determining the available income of the child or the countable income of the surviving spouse. 38 C.F.R. §§ 3.23 (d)(6), 3.272(m). Therefore, in order for VA to determine what portion of the appellant's daughter's income should be excluded, it needs to know what her income is. Because the appellant has not provided such information, VA is unable to determine her entitlement to an exclusion of her dependent child's income. As such, the appellant's entitlement to payment of VA pension benefits cannot be determined. In making this determination, the RO and the Board have considered the appellant's contention that VA should have known about her daughter's helpless child status because the Veteran reported it while he was on active duty. However, VA does not have access to military records unless it has a reason to request records. Although the Veteran reported to VA on his initial application for service-connected compensation filed in September 1999 that he had a daughter, he did not advise VA that she was disabled. Moreover, when the Veteran filed for a dependency allowance in June 2014, he only reported the appellant as his dependent. He did not report having any disabled children who were reliant on him for support. Therefore, VA had no knowledge of his daughter's helpless child status and had no duty to seek further information regarding her status. Rather, the first time VA learned that the Veteran's daughter was disabled was when the appellant reported it on December 2016 MER, which was after the Veteran's death and the appellant filed her initial application for pension benefits. Furthermore, even if the Veteran had informed VA that his daughter was a helpless child, that does not negate the appellant's obligation to report her as a dependent child on her initial pension application to advise VA that she was claiming her daughter as a dependent. Consequently, the Board finds that the appellant's entitlement to payment of pension benefits cannot be determined because there is insufficient information as to her family's income and net worth. She has been advised multiple times of the need to provide such information to support her claim for pension benefits without an appropriate response. It is within VA's purview to request such documentation to substantiate the claim for benefits that the appellant seeks. Id. at 519. It is the responsibility of a claimant to cooperate with VA in assisting in the development of his or her claim. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). However, it is ultimately the claimant's responsibility to present and support their claim for benefits under the laws administered by VA. See 38 U.S.C. § 5107(a); see also Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009). For the foregoing reasons, the appellant's appeal seeking reinstatement of her VA pension benefits is denied. 2. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran's death should be service-connected because the cancer that caused his death was due to his exposure to chemicals during his service in Southwest Asia. Although the evidence does not support such a contention, the Board finds that service connection for the cause of the Veteran's death can be granted on an alternative basis. Dependency and indemnity compensation is payable to a surviving spouse, child, or parent either because of a service-connected death occurring after December 31, 1956, or pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. 38 C.F.R. § 3.5. Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 116667 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In the present case, the Veteran died in April 2016. His death certificate indicates his immediate cause of death was cardiopulmonary arrest due to prostate cancer with metastasis to the bone, lungs and liver. It also indicates that the Veteran's diabetes mellitus, type II, and hypertension contributed to the Veteran's death. The Board finds that the Veteran's hypertension began in service. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1 (2014). A diagnosis of hypertension "must be confirmed by readings two or more times on at least three different days." Id. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third elements of service connection is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is a chronic disability recognized under 38 C.F.R. § 3.309(a) and the continuity of symptomatology provisions are applicable. Id. Under 38 C.F.R. § 3.303(b), continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). His service treatment records do not contain a diagnosis of hypertension, they do indicate he had a problem with elevated blood pressure readings and was assessed to have borderline blood pressure/hypertension. See July 1997 clinical note and November 1998 examination reports. In fact, issues with his blood pressure are documented as early as November 1993. In this case, by resolving reasonable doubt in the Veteran's favor, a continuity of symptomatology for hypertension is indicated. The Board notes the rigorous VA hypertension diagnosis definition above, and finds the available medical evidence sufficient to grant the claim. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1 (2014). In service, 5 day blood pressure readings in August 1997 showed an average reading of 137/93 in the right arm. A November 1997 record shows a blood pressure reading of 157/94, and an April 1998 record shows a blood pressure reading of 155/108. In November 1998 he had a reading of 132/90. Post-service VA treatment records shows the Veteran was seen in September 1999, one month after his discharge from service, and his blood pressure was 145/94. At his initial Primary Care visit in January 2000, his blood pressure was 139/92 and he was diagnosed to have hypertension and prescribed medication. Resolving reasonable doubt in favor of the Veteran, a continuity of symptomatology is shown through the medical history recited above. 38 C.F.R. §§ 3.307, 3.309. The criteria for service connection for hypertension are met and the claim is granted. 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. Moreover, as hypertension is listed on the death certificate as a condition that contributed to his death, the Board finds that there is a causal link between the Veteran's hypertension and his death. Therefore, service connection for the Veteran's death is warranted on the basis that his service-connected hypertension is a contributory cause of death. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.