Citation Nr: 22008167 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 13-08 608 DATE: February 11, 2022 REMANDED Entitlement to nonservice-connected pension benefits for substitution or accrued benefits purposes is remanded. REASONS FOR REMAND The Veteran filed a claim for nonservice-connected pension benefits in February 2010. In April 2010, the Agency of Original (AOJ) denied the claim on the basis that the Veteran did not have qualifying wartime service. The Veteran filed a notice of disagreement in May 2010; he died in September 2010. In an October 2010 statement, the Appellant, who is the Veteran's surviving spouse, asked that the AOJ adjudicate the Veteran's pending pension claim so they could consider her claim for accrued benefits. She filed a formal claim for dependency and indemnity compensation (DIC) benefits, death pension, and accrued benefits in November 2010. The AOJ accepted her October 2010 statement as a request to substitute as the claimant for the purpose of accrued benefits and issued a statement of the case in February 2013 continuing the prior denial of nonservice-connected pension benefits. The Appellant perfected her appeal, which was ultimately denied by the Board in January 2020 on the basis that the Veteran did not have qualifying wartime service. The Appellant appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). The CAVC in a July 2021 Memorandum Decision reversed the Board's finding that the Veteran did not have qualifying Vietnam wartime service and the matter was remanded for further development if necessary, and readjudication consistent with the decision. The CAVC found as a matter of law that the Veteran met the initial threshold requirement for pension in that he served for over 90 days during a period of war. The Veteran was over 65 at the time of filing his claim. Thus, the remaining issue is whether he met the net worth requirements under § 3.274 and his income was not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3(a). Based on the evidence of record, the Board cannot make a fully-informed decision on the issue of income eligibility. The matter must be remanded to determine whether the Veteran's household countable income from February 3, 2010, to August 30, 2010 (the last day of the month before death occurred) was excessive. The AOJ must also consider whether the Appellant is entitled to any additional benefits based on her DIC application received in November 2010. The matter is REMANDED for the following action: 1. Send the Appellant a letter asking that she identify income and any unreimbursed medical expenses that were paid that may offset the amount of the Veteran's countable income for pension calculation purposes for the applicable period in question (February 3, 2010, to August 30, 2010). The Appellant must be notified of the exclusions from income that are listed in 38 C.F.R. § 3.272, and she should be asked to identify any exclusions from income that are applicable in her case. The letter should be enclosed with Improved Pension Eligibility Verification Reports, Medical Expense Reports, and any other forms required for a full and accurate reporting of the Veteran's household income and expenses for the period in question. 2. Thereafter, the AOJ should review the expanded record and determine whether the nonservice connected pension benefits sought may be granted. The readjudication must clearly detail and explain how all monthly income and expenses, as well as annualized income and expenses, were calculated for the applicable period. If upon completion of the above the issue remains denied, return the appeal to the Board after compliance with appellate procedures. 3. The AOJ must determine the Appellant's eligibility for survivor pension benefits. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.