Citation Nr: 23001099 Decision Date: 01/09/23 Archive Date: 01/09/23 DOCKET NO. 16-36 023A DATE: January 9, 2023 ORDER From September 1, 2016, entitlement to survivor's pension benefits in the amount of $366 per month is granted. From January 1, 2017, entitlement to survivor's pension benefits is denied. REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the Veteran's cause of death is remanded. FINDING OF FACT 1. From September 1, 2016, deduction of the appellant's countable income of $4,230 from the applicable maximum annual pension rate (MAPR) of $8,630 results in a yearly pension benefit of $4,400, or $366 per month. 2. From January 1, 2017, the appellant's countable income is excessive for VA pension purposes. CONCLUSION OF LAW 1. From September 1, 2016, the criteria for entitlement to survivor's pension benefits in the amount of $366 per month have been met. 38 U.S.C. §§ 101, 1503, 1541, 1543, 5312; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272, 3.273, 3.274. 2. From January 1, 2017, the criteria for entitlement to survivor's pension benefits have not been met. 38 U.S.C. §§ 101, 1503, 1541, 1543, 5312; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272, 3.273, 3.274. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to September 1971. He died in December 2000. The appellant is his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2014 decision which denied DIC benefits based on service connection for the Veteran's cause of death and denied survivor's pension benefits on the basis of excessive income. In November 2019, the appellant testified before the undersigned Veterans Law Judge at a Board hearing. A copy of the transcript is of record. In February 2020 and July 2021 decisions, the Board denied service connection for the Veteran's cause of death. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court), and in December 2020 and April 2022 orders, the Court granted the parties Joint Motion for Partial Remand and Joint Motion for Remand (Motions), vacated the Board's denial of service connection for the Veteran's cause of death, and remanded the matter for additional development and readjudication consistent with the Motions. In a September 2020 decision, the Board granted survivor's pension benefits from January 2015 to August 2016 but denied survivor's pension benefits prior to January 1, 2015, and from September 1, 2016. The appellant appealed the Board's denial of survivor's pension benefits from September 1, 2016, to the Court, and in a May 2022 memorandum decision, the Court set aside the Board's decision denying survivor's pension benefits from September 1, 2016, and remanded the matter for further proceedings. Entitlement to survivor's pension benefits from September 1, 2016. The appellant contends that she is entitled to survivor's pension benefits from September 1, 2016. By way of history, in a September 2020 decision, the Board found that the appellant did not have any income for 2015 and 2016 until she began working in August 2016. As such, the Board granted survivor's pension benefits prior to September 1, 2016, but denied benefits from September 1, 2016, after finding that the appellant's countable income exceeded the applicable maximum annual pension rate (MAPR). In the May 2022 memorandum decision, the Court found that the Board inadequately explained how it calculated the appellant's 2016 income to find that her income exceeded the MAPR, including what annualization is, how VA annualizes income generally, and how VA annualizes income when work schedules or earnings are irregular. The Court also found that the Board failed to explain its finding that the appellant earned $700 biweekly in December 2016, or $18,200 annually, contrary to an SSA earnings records showing she only earned $4,230 in 2016. Thus, the Court remanded the matter for the Board to provide adequate reasons or bases for its decision. Nonservice-connected survivor's pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if the veteran had qualifying wartime service or if the veteran at the time of death was receiving or was entitled to compensation for a service-connected disability based on service during a period of war. Qualifying service is service in the active military, naval, or air service for 90 days or more during a period of war (or other criteria not applicable in this case). 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.2, 3.3. The surviving spouse's income must not exceed 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 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 the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). Countable income and excludable expenses are based on 12-month annualization periods for death pension. 38 C.F.R. §§ 3.271, 3.272. Annualization periods have two types, the initial annualization period and calendar years. After the initial year, countable income is generally based on the calendar year. When the initial annualization period and the first calendar year beginning after the initial award overlap, the greater benefit is awarded. Here, the appellant's pension claim was not an initial claim for survivor's pension benefits; thus, the Board finds that a 12-month annualization period based on calendar years is warranted. 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). Irregular income, meaning income which is received or anticipated during a 12-month annualization period, but which is received in unequal amounts or at irregular intervals, is counted for the 12-month annualization period following initial receipt of such income. 38 C.F.R. § 3.271(a)(2). 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 MAPR 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). However, under 38 C.F.R. § 3.272(g), medical expenses may be allowed prospectively if the appellant is paying recurring nursing home fees or other reasonably predictable medical expenses. 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 purposes of determining a running award when there is a change in the MAPR, the monthly rate of pension payable shall be computed by reducing the new applicable MAPR by the beneficiary's countable income on the effective date of the change in the applicable MAPR and dividing the remainder by 12. 38 C.F.R. § 3.272(b)(1). For the purpose of determining a running award when there is a change in the amount of income, the monthly rate of pension shall be computed by reducing the beneficiary's applicable MAPR by the beneficiary's new amount of countable income on the effective date of the change in the amount of income and dividing the remainder by 12. 38 C.F.R. § 3.73(b)(2). 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, subject to the provisions of 38 C.F.R. § 3.660(a)(2). 38 C.F.R. § 3.273(d). Where reduction or discontinuance of a running award is required because of an increase in income, the reduction or discontinuance shall be made effective the end of the month in which the increase occurred. 38 C.F.R. § 3.660(a)(2). 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. 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. Turning to the evidence of record, the appellant began working on August 17, 2016. A December 30, 2016, paystub reflects the appellant worked 35 hours and earned $700 during the pay period, with $4,230 paid during the year to date. A SSA earnings record statement reflects the appellant earned $4,230 in 2016. A SSA earnings record statement reflects the appellant earned $10,894 in 2017. Additionally, an SSA Inquiry reflects the appellant began receiving SSA benefits in August 2017, paid from September 1, 2017, in the amount of $1,471 per month. Thus, the Board finds that the appellant's income for 2017 totaled $16,778 ($10,894 plus $5,884 (four months of SSA benefits)). An SSA Inquiry reflects the appellant's SSA benefits increased to $1,500 per month effective December 2017 ($18,000 yearly), payable from January 1, 2018. The appellant submitted two Form W-2 showing earnings of $2,598 at one employer and $8,815 at another, totaling $11,413. A SSA earnings record statement reflects the appellant earned $11,413 in 2018. Thus, the Board finds that the appellant's income for 2018 totaled $29,413 ($18,000 plus $11,413). An SSA Inquiry reflects the appellant's SSA benefits increased to $1,542 per month effective December 2018 ($18,504 yearly), payable from January 1, 2019. In a June 2020 VA Form 21P-0518-1, Improved Pension Eligibility Verification Report (Surviving Spouse with no Children), the appellant reported earning $12,007 in wages from January through December 2019. Thus, the Board finds that the appellant's income for 2019 totaled $30,511 ($18,504 plus $12,007). An SSA Inquiry reflects the appellant's SSA benefits increased to $1,567 per month in December 2019 ($18,804 yearly), payable from January 1, 2020. In a June 2020 VA Form 21P-0518-1, Improved Pension Eligibility Verification Report (Surviving Spouse with no Children), the appellant reported earning $5,487 in wages from January through June 2020. The Board notes that the appellant has not alleged that her income decreased in the second half of 2020 and the Board could presume that her annualized income would approximate $10,974 (income from the first half of the year, doubled), which results in a similar amount to her earned income in 2017, 2018, and 2019. However, the Board will only consider $5,487 in earned income at this time. Thus, the Board finds that the appellant's income for 2020 totaled $24,291 ($18,804 plus $5,487). An SSA Inquiry reflects the appellant's SSA benefits increased to $1,587 per month in December 2020 ($19,044 yearly), payable from January 1, 2021. The Board does not have information on the appellant's earned income for 2021. Thus, the Board will only consider SSA benefits at this time and finds that the appellant's income for 2021 totaled $19,044. As to the appellant's medical expenses, the Board finds that she does not have any unreimbursed medical expenses to reduce her countable income. Although the appellant submitted numerous bills for medical treatment, the evidence does not show that she made any payments towards the outstanding balances. Furthermore, in August 2020 correspondence, the appellant reported that she had not paid any medical expenses. As discussed above, where reduction or discontinuance of a running award is required because of an increase in income, the reduction or discontinuance shall be made effective the end of the month in which the increase occurred. Here, the appellant's income increased beginning August 17, 2016, and any reduction or discontinuance would be effective the end of August 2016, and payable from September 1, 2016. For the purpose of determining a running award when there is a change in the amount of income, the monthly rate of pension shall be computed by reducing the beneficiary's applicable MAPR by the beneficiary's new amount of countable income on the effective date of the change in the amount of income and dividing the remainder by 12. Irregular income, meaning income which is received or anticipated during a 12-month annualization period, but which is received in unequal amounts or at irregular intervals, is counted for the 12-month annualization period following initial receipt of such income. Thus, from September 2016 through December 2016, the appellant's irregular income reduces the applicable MAPR, and the remainder is divided by 12 to obtain her monthly pension benefit. Furthermore, this income is counted for 12 months following initial receipt of the income. The MAPR effective December 1, 2014 (2015 and 2016 calendar years), for a surviving spouse without dependents is $8,630. See Veterans Benefits Administration, VA Survivors Pension benefit rates at https://www.va.gov/pension/rates_survivor_pen14.asp. Deducting the appellant's income from September 1, 2016, of $4,230 from the applicable MAPR of $8,630 results in a yearly pension benefit of $4,400. This amount is then divided by 12, which results in a monthly pension benefit of $366 from September 2016 through December 2016. The MAPR effective December 1, 2016 (2017 calendar year), for a surviving spouse without dependents is $8,656. See Veterans Benefits Administration, Survivors Pension Rate Tables Effective 12/1/16 at https://benefits.va.gov/PENSION/rates_survivor_pen16.asp. The Board notes that irregular income received beginning in August 2016 is countable for 12 months after initial receipt. However, based on the evidence of record, the appellant's 2017 income of $16,778 alone, without consideration of any income earned in 2016, exceeded the applicable MAPR pension rate for 2017. Furthermore, even if the Board only considered the appellant's earned 2017 income of $10,894, without considering the increase of her income in August 2017 due to the receipt of SSA benefits, her income remained excessive for VA pension purposes. Thus, payment of pension benefits is not warranted. The MAPR effective December 1, 2017 (2018 calendar year), for a surviving spouse without dependents is $8,830. See Veterans Benefits Administration, Past rates: 2018 VA Survivors Pension benefit rates at https://www.va.gov/pension/survivors-pension-rates/past-rates-2018/. Based on the evidence of record, the appellant's 2018 income of $29,413 exceeded the applicable MAPR pension rate for 2018 and payment of pension benefits is not warranted. The MAPR effective December 1, 2018 (2019 calendar year), for a surviving spouse without dependents is $9,078. See Veterans Benefits Administration, Past rates: 2019 VA Survivors Pension benefit rates at https://www.va.gov/pension/survivors-pension-rates/past-rates-2019/. Based on the evidence of record, the appellant's 2019 income of $30,511 exceeded the applicable MAPR pension rate for 2019 and payment of pension benefits is not warranted. The MAPR effective December 1, 2019 (2020 calendar year), for a surviving spouse without dependents is $9,224. See Veterans Benefits Administration, Past rates: 2020 VA Survivors Pension benefit rates at https://www.va.gov/pension/survivors-pension-rates/past-rates-2020/. Based on the evidence of record, the appellant's 2020 income of $24,291 exceeded the applicable MAPR pension rate for 2020 and payment of pension benefits is not warranted. The MAPR effective December 1, 2020 (2021 calendar year), for a surviving spouse without dependents is $9,344. See Veterans Benefits Administration, Past rates: 2020 VA Survivors Pension benefit rates at https://www.va.gov/pension/survivors-pension-rates/past-rates-2021/). Based on the evidence of record, the appellant's 2021 income of $19,044 exceeded the applicable MAPR pension rate for 2021 and payment of pension benefits is not warranted. In sum, the Board finds that from September 1, 2016, the deduction of the appellant's countable income of $4,230 from the applicable MAPR of $8,630 results in a yearly pension benefit of $4,400, or $366 per month. To the extent the appellant contends a pension rate in excess of $366 per month is warranted from September 1, 2016, or that she is entitled to pension benefits from January 1, 2017, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable, and her claim is denied. REASONS FOR REMAND Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the Veteran's cause of death is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to DIC benefits based on service connection for the Veteran's cause of death at this time. VA obtained a medical opinion in May 2021. However, this opinion is inadequate because it is conclusory because the examiner essentially listed two facts followed by a two-sentence rationale. Specifically, the examiner failed to discuss the distinction between tension and migraine headaches, including its significance in this case, and what impact, if any, migraines have on heart disease. The examiner instead merely noted that the Veteran's headaches were not the type of headaches discussed in the two articles the appellant submitted and then concluded that there was no literature showing a connection between the specific type of headaches the Veteran had and heart disease. Furthermore, while the examiner concluded that tension headaches do not cause heart disease, the examiner failed to opine whether the Veteran's headaches contributed substantially or materially to the Veteran's death, that it combined to cause death, that it aided or lent assistance to the production of death, or otherwise aggravated or were related to his heart disease. Subsequent to the Court's remand of this claim in April 2022, the appellant submitted a July 2022 private nexus opinion from Dr. S.B., who opined that the Veteran's cause of death due to heart disease was at least as likely as not secondary to exposure to benzene at Fort Lewis during service. The clinician explained that studies show exposure to dioxin is a contributing factor in the development of hypertension, and caused the Veteran's hypertension, which caused his coronary artery disease. The clinician further explained that dioxin contains two benzene rings, and thus, are not separate entities. However, the Board finds that the clinician failed to explain why the benzene rings alone are responsible for the link between hypertension and dioxin exposure, rather than the additional chemical properties of dioxin exclusive of the benzene rings. Furthermore, the clinician explained that there was not enough information as to the individualized exposure variables for the Veteran to base a denial, but then used the lack of information to support a positive nexus opinion. The Board notes that the clinician also cited to literature in support of the opinion but did not provide copies of the articles. As such, the Board is unable to review them as part of the appeal record. For these reasons, the Board finds that the July 2022 private nexus opinion is insufficient to establish service connection for the Veteran's cause of death at this time. Finally, in January 2021, the appellant reported that the Veteran was hospitalized in 1976 at a VA hospital in Dublin, Georgia, due to his headaches. There is no indication that VA has attempted to obtain these records or made a formal finding of unavailability. Remand is required to obtain outstanding treatment records and a new VA medical opinion. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from the VA medical center in Dublin, Georgia, from 1976. 2. Verify the Veteran's exposure to chemicals at Fort Lewis, to include whether he was exposed to benzene or dioxin. 3. Obtain an opinion from an appropriate clinician as to the Veteran's cause of death. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the Veteran's hypertensive cardiovascular disease with small intramyocardial coronary artery disease or non-insulin dependent diabetes mellitus at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by or otherwise related to in-service exposure to chemicals at Fort Lewis? (b) If the Veteran's hypertensive cardiovascular disease with small intramyocardial coronary artery disease and non-insulin dependent diabetes mellitus are not related to in-service exposure to chemicals at Fort Lewis, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected headaches caused, contributed substantially or materially to cause, or aided or lent assistance to cause, the Veteran's death from hypertensive cardiovascular disease with small intramyocardial coronary artery disease or non-insulin dependent diabetes mellitus? (c) If the Veteran's headaches did not cause, contribute substantially or materially to cause, or aid or lend assistance to cause, the Veteran's death from hypertensive cardiovascular disease with small intramyocardial coronary artery disease or non-insulin dependent diabetes mellitus, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's headaches aggravated, i.e., worsened beyond its natural progression, the Veteran's hypertensive cardiovascular disease with small intramyocardial coronary artery disease or non-insulin dependent diabetes mellitus? Provide a rationale to support the opinion(s). Although a complete review of the claims file is required, the examiner is asked to specifically discuss (1) articles submitted by the appellant in September 2019 purporting to show a relationship between headaches and cardiovascular disease, and (2) the July 2022 private nexus opinion finding that benzene and dioxin have similar effects and exposure to benzene at Fort Lewis caused the Veteran's hypertension. 4. After completing the above, and any other development as may be indicated, the appellant's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the appellant and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.