Citation Nr: 21042554 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-00 269A DATE: July 13, 2021 ORDER 1. A survivor's special monthly pension (SMP) is denied. 2. A survivor's pension since September 1, 2011 is denied. FINDINGS OF FACT 1. The appellant is not in need of regular aid and attendance or substantially confined to her home due to disabilities. 2. The appellant's countable income has exceeded the applicable maximum annual pension rates (MAPRs) since September 1, 2011. CONCLUSIONS OF LAW 1. The criteria for survivor's SMP based on the need for regular aid and attendance or on account of being permanently housebound are not met. 38 U.S.C. §§ 1114, 1311, 1502, 1541, 5107; 38 C.F.R. §§ 3.23, 3.102, 3.351, 3.352. 2. Since September 1, 2011, the criteria for survivor's pension benefits are not met. 38 U.S.C. §§ 1503, 1541, 5107; 38 C.F.R. §§ 3.21, 3.23, 3.102, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1952 to August 1954. He died in November 1993 and the appellant is his surviving spouse. The case is on appeal from April 2012 decisions. Most recently, in a November 2020 decision, the Board remanded the issue of entitlement to a survivor pension for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A survivor's SMP. Legal Criteria Increased survivor's pension benefits are payable to a surviving spouse based on the need for regular aid and attendance. 38 U.S.C. §§ 1311, 1541; 38 C.F.R. § 3.351. A surviving spouse will be found to require regular aid and attendance if he or she 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 5 degrees or less; is a patient in a nursing home because of mental or physical incapacity; or meets the criteria of 38 C.F.R. § 3.352(a). 38 U.S.C. § 1502; 38 C.F.R. § 3.351. 38 C.F.R. § 3.352(a) states that the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 U.S.C. § 1114; Id. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of the claimant's household will not prevent the granting of the additional allowance. In addition, the annual rate for a surviving spouse who does not require regular aid and attendance can receive increased benefits if he or she is permanently housebound by reason of disability. 38 U.S.C. §§ 1311, 1541; 38 C.F.R. § 3.351. The "permanently housebound" requirement is met when the surviving spouse is substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime. Id. Analysis The appellant contends that she is entitled to an SMP based on disabilities. In a December 2010 statement, she reported being disabled since 2002 and being unable to use her left hand. In a November 2011 correspondence, she claimed the need for regular aid and attendance of another person based on arthritis, chronic fatigue, irritable bowel syndrome (IBS), and fibromyalgia. The appellant stated that she has problems dressing due to arthritis and joint pain and falls asleep while driving due to narcolepsy. In October 2011, the appellant submitted a VA Disability Benefits Questionnaire (DBQ) form from a private physician regarding the need for aid and attendance and housebound status. The physician reported diagnoses of degenerative joint disease and spondylosis of the spine, hands, feet, hips, and shoulders. The physician found that the appellant is able to feed herself, bathe, and tend to her hygiene needs, manage her medications and finances, and drive during the daytime to the grocery store and gym multiple times per week. The physician also found that the appellant is not legally blind and does not require nursing home care. The physician marked a box indicating that the appellant is unable to prepare her own meals, but also submitted a written statement in which he reported that she is able to prepare very simple meals. He also reported that the appellant is unable to open most cans and jars, has someone cook for her, and her activities of daily living are affected by fibromyalgia, IBS, and arthritis conditions. The appellant was afforded a VA examination in regard to this claim in January 2012. The examiner reported that the appellant can perform all self-care skills, manage her finances, and is able to bathe, groom, and dress herself. The examiner also reported that the appellant can drive, perform housework like laundry, and prepare simple meals. The examiner noted that she has marked difficulty with feeding and dressing herself due to neck pain and related upper extremity pain. The Board acknowledges that the appellant has difficulty with her activities of daily living due to her disabilities. However, the medical evidence does not establish that she is unable to perform all activities of daily living without assistance. In this regard, both the private physician and the VA examiner found that the appellant is able to dress, groom, and perform all necessary hygiene without assistance. They also found, despite limitations, that she is able to obtain food from the grocery store, prepare simple meals, and feed herself. They further found that she is able to perform housework. The private physician and VA examiner did not indicate that she is unable to protect herself from the hazards or dangers incident to daily environment. In addition, the appellant has not claimed and the medical evidence does not indicate that she is nearly blind. Furthermore, the private physician found that the appellant does not require nursing home care due to mental or physical incapacity. The Board has also considered whether SMP may be warranted on the basis of being housebound. While the appellant has reported difficulty driving due to narcolepsy, both the private physician and the VA examiner found that she leaves her house multiple times per week to travel to the grocery store and gym. Therefore, the appellant is not substantially confined to her home. In sum, the preponderance of the evidence shows that the appellant is not in need of regular aid and attendance or substantially confined to her home due to disabilities. Therefore, the benefit of the doubt doctrine is not for applicable and a survivor's SMP is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. A survivor's pension since September 1, 2011. Legal Criteria Basic entitlement to a survivor pension exists if, among other things, the claimant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(a)(3). The MAPR 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 the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1541; 38 C.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 and 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, and must be out-of-pocket expenses for which the claimant 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. As a condition of granting or continuing pension, VA may require from an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person, and of any spouse or child for whom the person is receiving or is to receive increased pension. 38 C.F.R. § 3.277(a). VA may require an individual who applies for or receives pension to, as a condition of receipt or continued receipt of benefits, furnish an eligibility verification report upon request. 38 C.F.R. § 3.277(c)(3). If VA requests that a claimant or beneficiary submit an eligibility verification report, but he or she fails to do so within 60 days of the date of request, VA shall suspend the award or disallow the claim. 38 C.F.R. § 3.277(d). Analysis The appellant claimed survivor pension benefits in an August 2010 benefits application. She reported receiving income from the SSA and an additional $292 monthly in widows benefits. The appellant also submitted a list of expenses, including medical expenses, for the prior 12 months. In February 2012, the appellant submitted a list of medical expenses since August 2010, but also noted that she may be receiving reimbursements for some of the claimed expenses. Thereafter, in January 2013, the appellant submitted additional lists of medical expenses from August 2010 through December 31, 2011, including mileage. In April 2012, the RO associated an SSA income and Medicare payment statement with the file. The statement shows that the appellant received monthly SSA income of $1,236 from December 2010 to November 2010 and $1,280 of monthly SSA income after December 2011. The statement also shows that the appellant paid $99.90 in Medicare premiums per month after December 2011. Thereafter, in January 2016, the RO associated updated SSA information with the file. The statement shows that the appellant received monthly SSA income of $1,302 from December 2012 to June 2013, $1,686 from July 2013 to November 2013, $1,710 from December 2013 to February 2014, $2,118 from March 2014 to July 2014, $2,117.90 from August 2014 to November 2014, and $2,154.90 since December 2014. The statement also reports monthly Medicare premiums of $104.90. In a January 2016 decision, the RO granted a survivor's pension from August 2010 to August 2011 and denied a pension thereafter. In the November 2020 decision, the Board remanded the pension claim so that the RO could request the appellant submit income and medical expense totals for the years since 2010. In December 2020, the RO sent the appellant a correspondence requesting income and medical expense totals and blank forms for reporting this information. However, no response was received. The Board finds that the appellant's countable income exceeds the applicable MAPRs since September 1, 2011. The applicable MAPR for a surviving spouse without a dependent was $7,933 in September 2011. The appellant's annualized income at such time consisted of SSA benefits in the amount of $14,832 plus widows benefits of $3,504. Liberally construing the appellant's claimed unreimbursed medical expenses, she had $5,613 in such expenses. After reducing the medical expenses by $397 (5 percent of the applicable MAPR), her total medical expense deduction is $5,216. The appellant's annual income reduced by eligible unreimbursed medical expenses leaves the $13,120 in countable income, which is in excess of the applicable MAPR. Going forward, the appellant has not reported incurring any unreimbursed medical expenses after December 2011. Therefore, even after deducting Medicare premiums, the evidence of record indicates that her annualized countable income has continued to exceed the applicable MAPRs since September 2011. In this regard, in January 2012 the applicable MAPR as of such date for a surviving spouse without a dependent is $8,219. The appellant's annualized income at such time consisted of SSA benefits in the amount of $15,360 plus widows benefits of $3,504. The appellant's annualized Medicare premiums were $1,198.80. After reducing the medical expenses by $410 (5 percent of the applicable MAPR), her total medical expense deduction is $788.80. The appellant's annual income reduced by eligible unreimbursed medical expenses leaves the $18,075.20 in countable income, which is in excess of the applicable MAPR. Thereafter, in January 2013 the applicable MAPR as of such date for a surviving spouse without a dependent is $8,359. The appellant's annualized income at such time consisted of SSA benefits in the amount of $15,624 plus widows benefits of $3,504. Using the Medicare premiums based on the figure reported by SSA in January 2016, she had $1,258.80 in unreimbursed medical expenses. After reducing the medical expenses by $417 (5 percent of the applicable MAPR), her total medical expense deduction is $841.80. The appellant's annual income reduced by eligible unreimbursed medical expenses leaves the $18,286.20 in countable income, which is in excess of the applicable MAPR. In January 2014 the applicable MAPR as of such date for a surviving spouse without a dependent is $8,485. The appellant's annualized income at such time consisted of SSA benefits in the amount of $20,520 plus widows benefits of $3,504. Using the Medicare premiums based on the figure reported by SSA in January 2016, she had $1,258.80 in unreimbursed medical expenses. After reducing the medical expenses by $424 (5 percent of the applicable MAPR), her total medical expense deduction is $834.80. The appellant's annual income reduced by eligible unreimbursed medical expenses leaves $23,189.20 in countable income, which is in excess of the applicable MAPR. The calculations for January 2015 and January 2016 are the same. The applicable MAPR for such time periods for a surviving spouse without a dependent is $8,630. The appellant's annualized income in both January 2015 and January 2016 consisted of SSA benefits in the amount of $25,858.80 plus widows benefits of $3,504. Using the Medicare premiums based on the figure reported by SSA in January 2016, she had $1,258.80 in unreimbursed medical expenses. After reducing the medical expenses by $431 (5 percent of the applicable MAPR), her total medical expense deduction is $827.80. The appellant's annual incomes for both periods reduced by eligible unreimbursed medical expenses leaves $28,535 in countable income, which is in excess of the applicable MAPR. The Board notes that the appellant's countable income would have been lower since January 2012 if she had submitted unreimbursed medical expenses. However, the claimant bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (Fed. Cir. 2009). In this case, the appellant was asked to submit unreimbursed medical expenses in December 2020, but did not do so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not a one-way street and that Veterans should provide information or materials relevant to their claim to VA so that VA may assist in development of the claim). Thus, the preponderance of the evidence shows that the appellant's countable income has exceeded the applicable MAPRs since September 1, 2011. Therefore, the benefit-of-the-doubt doctrine is not applicable and entitlement to a survivor's pension since September 1, 2011 is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.