Citation Nr: 22012011 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-30 760 DATE: March 2, 2022 REMANDED Entitlement to nonservice connected death pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1943 to November 1945. The Veteran died in May 1998. Following the Veteran's death, his surviving spouse filed a claim for nonservice connected death pension benefits in September 2016. Unfortunately, the Veteran's surviving spouse died in May 2017 while her claim for death pension benefits was still pending. The current appellant is the Veteran's adult child. A June 2018 letter indicates that the appellant is the appropriate substitute for the surviving spouse's claim of entitlement to nonservice connected death pension, which was pending at the time of her death. In January 2022, the appellant testified at a Board hearing. The transcript is of record. Entitlement to nonservice connected death pension benefits In September 2017 the appellant filed a claim for reimbursement from accrued amounts due to a deceased beneficiary, listing debts for a care facility and prescriptions. The appellant also filed a timely notice of disagreement with the May 2017 notification letter, which denied nonservice connected death pension for the surviving spouse due to income exceeding the maximum annual death pension limit. See Notice of Disagreement March 2018. In support of the death pension claim, the appellant provided an assisted living agreement, medical billing statements, bank statements, a list of prescription costs and numerous handwritten statements summarizing the expenses and transactions leading up to and following the death of the surviving spouse. In April 2018 the Regional Office requested proof of payment for any expenses related to last illness or burial as well as a completed VA Form 21-8416 medical expenses report for the surviving spouses' out of pocket medical expenses from March 29, 2017 to May 30, 2017 to include all care facility costs. The appellant submitted additional documents to include proof of payment of burial expenses; however, a medical expense report listing the surviving spouse's out of pocket medical costs was not provided. The Board has reviewed the evidence submitted by the appellant and finds that the documentation of record is insufficient and a determination cannot be made at this juncture. As a condition of granting or continuing pension, VA may require from any person who is 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. 38 C.F.R. § 3.277(a). It is imperative that evidence of expenses paid be provided as medical expenses used to calculate pension benefits may not also be used to calculate the appellant's accrued benefits entitlement. As noted above, the appellant provided several handwritten statements outlining transactions, payments, loans and trust agreements; however, copies of many of the referenced documents has not been provided. Additionally, the documentation that was provided does not include actual proof of payment of the alleged expenses. The appellant submitted a printout of prescription copays and medical statements from the assisted living facility revealing payments both before and after the surviving spouse's death but it is unclear as to what, if any, payments were out of pocket expenses for the surviving spouse. Furthermore, the Board notes that at the hearing the appellant testified that the denial of death pension benefits "resulted in our having to pay her cost" suggesting that the medical expenses were not paid by the surviving spouse and therefore may not be used in the calculation for death pension benefits. Thus, it is unclear from the record whether the alleged medical expenses were paid by the surviving spouse, the appellant or from a trust which was apparently set up just prior to the surviving spouse's death. Accordingly, a remand is necessary for further development. The appellant is advised that handwritten statements summarizing transactions and payments is insufficient and actual proof of payment must be provided. The Board notes that the evidence indicates that the appellant had a joint account with her mother, for any claimed expenses paid out of the joint account, the appellant must submit evidence of who made the actual payment. The matters are REMANDED for the following action: 1. Contact the appellant and ask her to again provide a completed VA Form 21-8416 medical expenses report for the surviving spouse's out of pocket medical expenses from March 29, 2017 to May 30, 2017 to include all care facility costs and a complete copy of the trust document, to include any amendments or transfers of ownership and details as to which assets were transferred into the trust. 2. Request evidence proving when and how much money she paid toward her mother's final expenses (to include assisted living expenses), to include any payments made after her mother's death in May 2017. Advise the appellant that she must show actual proof that she paid the expenses out of her own funds. Such evidence may include a copy of the settlement agreement for the trust set up on behalf of her mother, copies of bank statements showing transfers of funds between accounts, copies of trust reports, etc. 3. Thereafter, the Regional Office should review the expanded record and determine whether the 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 period on appeal. 4. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.