Citation Nr: A25042657 Decision Date: 05/13/25 Archive Date: 05/13/25 DOCKET NO. 210601-163375 DATE: May 13, 2025 ORDER Entitlement to service connection for ischemic heart disease (IHD) for accrued benefits purposes, to include as due to herbicide exposure, is denied. Entitlement to service connection for diabetes mellitus II (DM II) for accrued benefits purposes, to include as due to herbicide exposure, is denied. Entitlement to service connection for pancreatic cancer for accrued benefits purposes, to include as due to herbicide exposure, is denied. Entitlement to special monthly pension (SMP) with aid and attendance (A&A), on the basis of substitution or accrued benefits purposes, is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran had IHD at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran had DM II at any time during or approximate to the pendency of the claim. 3. The weight of the evidence is against finding that the Veteran's pancreatic cancer was caused by exposure to herbicide agents or otherwise attributable to active-duty service. 4. The Veteran's countable household income exceeded the applicable maximum annual pension rate (MAPR) for SMP benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for IHD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for DM II have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for pancreatic cancer have not been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for payment of SMP benefits for substitution or accrued benefits purposes have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1970. The Veteran died in June 2020. The appellant is his surviving spouse. The rating decision on appeal was issued in December 2018. Subsequent development followed and, in April 2021, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). In May 2021, the appellant opted into the Appeals Modernization Act (AMA) review system by filing VA Form 10182. She selected the "Evidence Submission" lane. This allowed her 90 days to submit pertinent evidence. She acknowledged that her appeal would be based on all evidence submitted to VA as of 90 days after the date of that election. The Board cannot hold a hearing or accept into the record additional evidence in its review. The Board is bound by favorable findings made by the AOJ. In this case, the AOJ conceded the Veteran's herbicide exposure. Additionally, the appellant was recognized as a substitute claimant. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Finally, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for IHD and DM II The Veteran and/or the appellant contends that the Veteran had IHD and DM II that were related to his military service, to include as due to herbicide exposure. The Veteran's service treatment records (STRs) do not document complaints, treatments, or diagnosis for DM II or a heart condition. During his September 1968 Report of Medical Examination, Enlistment exam, and his August 1970 Report of Medical Examination, Release from Active-Duty exam, testing revealed no sugar or albumin in the Veteran's urine, and his heart was clinically normal. During his enlistment exam, the Veteran denied palpitation or pounding heart and sugar or albumin in his urine. In December 2020, VA obtained an opinion to determine whether the Veteran had IHD and DM II that is related to service, to include herbicide/TCDD exposure. The examiner opined that it is less likely as not that the Veteran had a diagnosis of IHD. The examiner stated that the Veteran's VAMR problem list shows no diagnosis of any type of heart disorder. Additionally, the VAMR showed no consultation with cardiology. The Veteran's Transesophageal Echo Report showed no evidence of cardiac disease, especially not of IHD. The examiner also opined that it is less likely as not that the Veteran warranted a DM II diagnosis, as there is no evidence of the American Diabetic Association (ADA) criteria having ever been met. The examiner stated that the VA problem list does not show a DM II diagnosis. The Veteran's HgA1c had always been well within normal limits, never having been greater than 5.5. The Veteran's VA treatment records do not document complaints, treatments, or diagnosis of IHD or DM II. Based on the evidence of record, the Board finds that the Veteran did not have diagnoses for IHD and DM II. Here, neither his STRs nor his post-STRs document diagnoses for any of these disabilities. Additionally, the examiner opined that it is less likely as not that the Veteran had diagnoses of IHD and DM II. The examiner stated that the Veteran's VAMR showed no consultation with cardiology, and his Transesophageal Echo Report showed no evidence of cardiac disease, especially not of IHD. Regarding the DM II, the examiner stated that there is no evidence of the ADA criteria having ever been met. The Veteran's HgA1c had always been well within normal limits, never having been greater than 5.5. Therefore, the Board concludes that the Veteran did not have IHD and/or DM II diagnoses. As such, element one under Shedden is not met. In the absence of proof of present disabilities, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board acknowledges the lay statements regarding the Veteran's claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnoses and nexus between the diagnoses and active service is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, as the record persuasively weighs against the claim for service connection for IHD and DM II, the appeal is denied. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for pancreatic cancer The Veteran and/or appellant contend that the Veteran's pancreatic cancer is due to military service, to include as due to herbicide agent exposure. The Veteran had a pancreatic adenocarcinoma diagnosis. As such, element one under Shedden was met. The Veteran's herbicide exposure has been conceded. As such, element two under Shedden is met. The Veteran's STRs do not document complaints, treatments, or diagnosis for a pancreatic condition. During his September 1968 Report of Medical Examination, Enlistment exam and August 1970 Report of Medical Examination, Release from Active-Duty exam, the Veteran's endocrine system was clinically normal. The Veteran's VA medical records document a pancreatic adenocarcinoma diagnosis. In November 2018, the Veteran submitted a Gall Bladder and Pancreas Conditions disability Benefits Questionnaire (DBQ). The Veteran was seen at a VAMC in August 2018 with painless jaundice. Imaging and biopsies revealed pancreatic head mass suspicious for pancreatic cancer. The examiner confirmed the Veteran's pancreatic neoplasm, intraductal papillary mucinous of the pancreas, and acute cancer associated pulmonary embolus diagnoses. Also, in November, the Veteran submitted a statement from his treating physician, Dr. F.B. The examiner had been treating the Veteran since September 2018 after the Veteran was diagnosed with pancreatic cancer. The examiner noted that the Veteran served as a member of the Construction Battalion in Vietnam during the Vietnam War. As part of his duties, he was exposed repeatedly to large doses of herbicides and defoliants including Agent Orange. The examiner stated that although epidemiological studies have not found conclusive evidence of a link between these and the incidence of pancreatic cancer, this is not surprising given the large increase in incidence that would be needed to conclusively link this malignancy to herbicides directly. The examiner added that this will be difficult to ever prove in the limited cohort of Vietnam War veterans and the inability to appropriately control for confounding risk factors such as smoking, diabetes, and previous episodes of pancreatitis. There is direct evidence in animal models that exposure to herbicides, including those used in Vietnam War-era, can induce direct damage to pancreatic tissue and cause chronic inflammation of the gland, which he stated is a known risk factor for the development of pancreatic cancer. The examiner submitted examples of scientific literature that demonstrate this link. The examiner stated that he would consider the Veteran's case to be linked to his war-time service in Vietnam. In December 2020, VA obtained an opinion to determine whether the Veteran's pancreatic cancer is related to service, to include herbicide/TCDD exposure. The examiner opined that it is less likely as not that the Veteran's pancreatic cancer (PC) was related to his service, to include herbicide/TCDD exposure. Regarding Dr. F.B.'s opinion, the VA examiner noted Dr. F.B.'s statement that although epidemiological studies have not found conclusive evidence of a link between these and, the incidence, of pancreatic cancer, this is not surprising given the large increase in incidence that would be needed to conclusively link this malignancy to herbicides directly.... The VA examiner stated that data and findings from animal studies cannot be directly applied to humans in any manner, other than to suggest the possible need for more study. Regarding his rationale, the VA examiner stated that the Veteran's STR does not show any pancreatic maladies, such as PC, that were diagnosed or treated in service. Therefore, it is less likely as not that the PC is directly related to service. The examiner added that cancers of the esophagus, stomach, pancreas, colon, and rectum have been extensively studied in Vietnam veterans, occupational groups with herbicide exposure, and people exposed to dioxins. These studies have yielded a fairly consistent pattern of no association between these exposures and any GI cancer. See Institute of Medicine, Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides. Veterans and Agent Orange: Update 2002. Washington: National Academy Press, 2003. Available at: http://www.nap.edu/books/0309086167/html. The examiner stated that pancreatic adenocarcinoma is not a presumptive condition of Agent Orange exposure. The International Agency for Research on Cancer, the pre-eminent world authority on agents that cause cancer, does not list herbicides/TCDD as carcinogens with sufficient, or even limited, evidence for causing PC. There is nothing intrinsic to military service that causes PC. The Board notes that in November 2018, the Veteran submitted a Gall Bladder and Pancreas Conditions DBQ. The examiner confirmed the Veteran's diagnoses; however, the examiner did not provide an opinion or rationale. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). Therefore, the Board finds the exam to be inadequate for rating purposes. Additionally, the Veteran submitted a statement from his treating physician. In this regard, the examiner stated that although epidemiological studies have not found conclusive evidence of a link between these and the incidence of pancreatic cancer, this is not surprising given the large increase in incidence that would be needed to conclusively link this malignancy to herbicides directly.... The examiner concluded that he would consider the Veteran's case to be linked to his war-time service in Vietnam. The Board finds the private medical opinion also inadequate as it is speculative in nature. The Board notes that speculative language does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). However, the Board finds the 2023 VA examiner's opinion to be adequate, reliable, and affords it significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The examiner's opinion is based on a thorough review of the record and contains sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the Veteran's relevant medical history and the Veteran's contentions when formulating the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board notes that although herbicide exposure has been conceded, pancreatic cancer is not one of the diseases that warrants presumptive service connection for herbicide exposure. 38 C.F.R. § 3.309(e). A presumption of service connection based on the herbicide exposure in the Republic of Vietnam during the Vietnam Era is not warranted for various other condition for which the VA Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32395-32407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21258-21260 (May 7, 2009). Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing service connection for a disability with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the question for the Board is whether the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. Based on the evidence of record, the Board finds that service connection for pancreatic cancer is not warranted on a direct basis. The Board notes that the Veteran's STRs do not document complaints, treatments, and diagnosis for pancreatic cancer. During his separation exam, the Veteran's endocrine system was clinically normal. Additionally, the 2020 VA examiner opined that the pancreatic cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include herbicide exposure/TCDD exposure. The examiner stated that the Veteran's STR does not show any pancreatic maladies, such as PC, that were diagnosed or treated in service. Additionally, cancers of the esophagus, stomach, pancreas, colon, and rectum have been extensively studied in Vietnam veterans, occupational groups with herbicide exposure, and people exposed to dioxins. These studies have yielded a fairly consistent pattern of no association between these exposures and any GI cancer. The examiner stated that pancreatic adenocarcinoma is not a presumptive condition of Agent Orange exposure. The International Agency for Research on Cancer, the pre-eminent world authority on agents that cause cancer, does not list herbicides/TCDD as carcinogens with sufficient, or even limited, evidence for causing PC. There is nothing intrinsic to military service that causes PC. Therefore, it is less likely as not that the PC is directly related to service. As such, the Board finds that element three under Shedden is not met. The Board has considered the lay statements regarding the etiology of the Veteran's pancreatic cancer. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran's pancreatic cancer and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As the evidence is persuasively against the claim for service connection for the Veteran's pancreatic cancer, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to SMP Basic entitlement to 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. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). VA's pension program is set up to assist certain veterans and their survivors who are in need, it is an income-based program only intended to give beneficiaries a minimum level of financial security. It is not intended to protect substantial gains in income or assets. By law, VA must reduce pension benefits by the gross amount of countable family income received. 38 C.F.R. § 3.271 and 3.273. 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). 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). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Unemployment compensation and interest income are not excluded from annual income. See, e.g., Cooper v. McDonough, No. 2021-2023, 2023 U.S. App. LEXIS 1594 (Fed. Cir. Jan. 23, 2023) (finding unemployment compensation countable income for VA pension purposes). As such, both SSA and unemployment income are therefore included as countable income. 38 C.F.R. § 3.271(f)(2) provides that when a Veteran has a dependent but has not proven the dependency, VA shall determine pensions based on income that includes income of the unestablished dependent. While 38 C.F.R. § 3.272 provides a specific exclusion for income of a child under certain circumstances, spousal income is not specifically excluded under any circumstance. Therefore, spousal income is countable. 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. In addition, they 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. For the purpose of determining initial entitlement or resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). 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 pension benefit. When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). 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. 38 C.F.R. § 3.273(b)(2). 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 (EVR), 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 continues to seek entitlement to SMP with A&A, for accrued benefit purposes. In May 2018, the Veteran filed VA Form 21-0966, Intent to File. In November 2018, he filed VA Form 21-527EZ, Fully Developed Claim and requested nonservice-connected pension benefits. He indicated he was claiming SMP because he needed regular assistance of another person, had severe visual problems, or was generally confined to his immediate premises. At the time of his application, the Veteran was married. As the Veteran filed the Application for VA Form 21-527EZ in May 2018, for purposes of determining the initial entitlement to pension, the Board will consider the 12-month annualization period from June 1, 2018, through June 1, 2019, beginning on the first day of the month after the Veteran's pension claim was filed. See 38 C.F.R. §§ 3.31, 3.273. In doing so, the Board will consider both the December 1, 2017, and December 1, 2018, MAPRs in determining the Veteran's entitlement to pension. As of December 1, 2017, the MAPR for a Veteran receiving A&A with a dependent was $26,036.00. See 38 C.F.R. § 3.23(a)(5); https://www.va.gov/pension/veterans-pension-rates/past-rates-2018/. Additionally, five percent or $863.00 of the MAPR amount may be deducted from the appellant's unreimbursed medical expenses. The MAPR effective from December 1, 2018, was $26,766.00. https://www.va.gov/pension/veterans-pension-rates/past-rates-2019/. Additionally, five percent or $886.00 of the MAPR amount may be deducted from the appellant's unreimbursed medical expenses. On his application, the Veteran reported receiving $1,200.00 per month in SSA benefits, and neither he nor his dependent received any income. A December 14, 2018, SSA inquiry revealed that the Veteran received $1,274.00 in monthly benefits from January 2018. He did not pay Medicare premiums. In a December 19, 2018, decision, the AOJ denied the claim for entitlement to SMP based on the need for A&A and based on housebound requirements because the Veteran did not meet the requirements for either benefit. Additionally, a review of his VA Form 21-5267EZ was negative for any medical expenses, and he did not provide the requested VA Form 21-2680. The Veteran disagreed with the denial. However, in June 2020, during the pendency of the appeal, the Veteran died. On July 15, 2020, the appellant submitted VA Form 21-534EZ, Application for DIC, survivors' pension, and/or accrued benefits. She also requested to be recognized as the substitute appellant for the Veteran's claims on appeal. On July 29, the Veteran's spouse was recognized as the substitute appellant. On October 20, 2020, the appellant submitted VA Form 21P-0516, Improved Pension Eligibility Verification Reported. She stated from January 1, 2020, to December 31, 2020, the Veteran received $1,478.60 in monthly SSA benefits, and $8,794.95 in annual unemployment, and she received $9,760.00 in unemployment. On her VA Form 21P-8416, Medical Expense Report, the appellant stated from June 3, 2018, through December 3, 2018, the Veteran paid $134.00 in Medicare premiums. Additionally, from May 15, 2018, to December 31, 2018, the Veteran spent a total of $1,356.28 on fiber, vitamins, and OTC medications. From January 3, 2019, to December 31, 2019, the Veteran paid $135.50 in Medicare premiums and $756.58 on fiber, vitamins, OTC medications. From June 17, 2019, to December 31, 2019, the Veteran paid $382.96 for fiber, vitamins, and OTC medications, and $379.15 from January 28, 2020, to June 27, 2020. He also paid $144.60 in Medicare premiums. The appellant reported being the Veteran's home attendant but noted that she was unpaid. The appellant also submitted VA Form 21P-0516, Improved Pension Eligibility Verification Report. She stated that from January 2018 to December 2018, the Veteran received $23,200.00 from his business, and $19,995.00 from January 2019 to December 2019. From January 2019 to December 2019, she received $6,787.00 from gambling. On October 27, 2020, the AOJ requested information from the appellant. The AOJ stated that she reported that from January 2018, through December 2018, the Veteran earned $23,200.00 in net income from operation of a business and $19,995.00 from January 1, 2019, through December 31, 2019. The AOJ requested the gross amount of income both her and the Veteran received from May 15, 2018, through May 31, 2019, and from January 1, 2019, through December 31, 2019. The appellant was asked to complete VA Form 21P-0516, Eligibility Verification Report, and report the gross amount of income received for the periods of May 15, 2018, through May 31, 2019, and from January 1, 2019, through December 31, 2019. She was also asked to report the date the Veteran received his first unemployment check. In November 2020, the appellant submitted VA Form 21-4138, Statement in Support of the Claim. She stated that the Veteran was a self-employed mason who stopped working in September 2019. In July 2020, he received a lump sum for unemployment in the amount of $8,794.95. She also submitted VA Form 21-4185, Report of Income from Property or Business. From January 1, 2018, to December 31, 2018, the appellant and the Veteran's net income was $20,267.00 ($56,627.00 gross income and $36,360.00 in expenses), and from January 1, 2019, to December 31, 2019, the net income from the business was $3,186.00 ($48,727.00 in gross income and $45,541.00 in expenses). She reported receiving her first unemployment check in May 2020 and received a lump sum in the amount of $5,200.00 and $1,520.00 bi-weekly from May 28, 2020. She did not have any gambling losses in 2019 but won $6,787.00. In January 2021, the AOJ requested information from the appellant. She was asked to complete and return VA Form 21-0516-1, Improved Pension Eligibility Verification Report (EVR) showing the Veteran's income and net worth for June 1, 2019, to May 31, 2020. She was also asked to provide the gross wages the Veteran earned from June 1, 2019, until the date he stopped working in September 2019. Additionally, she was asked to complete VA Form 21-4185, Report of Income from Property or Business, showing and providing the expenses for the period of June 1, 2019, through May 31, 2020. She was instructed to complete the entire forms and not to leave any sections blank. In March 2021, she submitted VA Form 21-4185. She stated that from June 1, 2019, to May 31, 2020, the Veteran paid a total of $22,770.50 in business expenses. However, she did not complete sections 13A through 13C, i.e., documenting the Veteran's gross income from his business etc. She also submitted VA Form 21P-0516, and stated that from June 1, 2019, through May 31, 2020, the Veteran had gross wages from all employment of $28,427.00, and she made $6,787.00 in gambling winnings. She noted that the Veteran also received $1,431.50 in SSA benefits. Basic entitlement to 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. However, in this case, the Board finds that the Veteran's countable income exceeded the allowable income limits for 2018. Here, in 2018, the Veteran received $1,274.00 in monthly SSA benefits or $15,288.00 ($1,274.00 x 12 months) annually and $20,267.00 in net employment income. The Veteran received a total of $35,555.00 ($15,288.00 + $20,267.00) annual income. Regarding his unreimbursed income, the SSA inquiry revealed that the Veteran did not pay Medicare premiums. However, the AOJ determined that the Veteran had $3,142.00 (which included OTC medication, vitamins, and travel/mileage) in unreimbursed expenses. As noted above, medical expenses in excess of five percent or $863.00 may be counted to reduce income. In this case, $2,279.00 ($3,142.00-$863.00) may be counted to reduce income. Therefore, the Veteran's countable income was $33,276.00 ($35,555.00-$2,279.00). The Veteran's countable income exceeded the 2018 MAPR of $26,036.00. Regarding 2019, as the appellant did not complete VA Form 21-4185, the Board is unable to determine whether she/the Veteran was eligible for pension benefits. The law is clear that nonservice-connected pension benefits is not payable to a claimant whose annual income exceeds the limitations as set forth in 38 C.F.R. § 3.23. Therefore, SMP benefits were not payable to the Veteran, there were no SMP benefits due unpaid at the time of the Veteran's death, and the appellant's claim of entitlement to accrued SMP benefits is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, T. 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.