93 Decision Citation: BVA 93-19941 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-17 139 ) DATE ) ) ) THE ISSUE Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. H. Tousley, Associate Counse INTRODUCTION The veteran had recognized service from July 1934 to July 1938 and from May 1943 to May 1945. He died in February 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying the appellant, the veteran's surviving spouse, her claim for burial benefits. The appellant is the party who authorized and paid for the services. She submitted a notice of disagreement in June 1992. The RO issued a statement of the case in August 1992. She submitted a substantive appeal in August 1992. The case was received and docketed at the Board in September 1992. The appellant's representative, The American Legion, submitted additional written argument in October 1992. REMAND The VA received an application for VA pension from the veteran at the beginning of February 1992. The veteran requested the pension claim also be considered as a claim for special monthly pension due to being in need of regular aid and attendance. He indicated that he had been hospitalized during January 1992. He reported that his combined monthly Social Security income was approximately $950. In the middle of February 1992, the veteran submitted a statement from his treating osteopathic physician in support of his pension claim. The physician's letter was to the effect that the veteran had various severe disorders reflective of end-stage cardiomyopathy which necessitated that the veteran receive "considerable assistance with activity of daily living." The RO deferred a rating action in order to obtain a report of the veteran's January 1992 hospitalization. The veteran died at the end of February 1992, before a copy of the January 1992 hospitalization report could be obtained. He died in the same medical facility. The death certificate listed the cause of death as myocardial infarction due to (or as a consequence of) cardiomyopathty, a nonservice-connected condition. The appellant, in March 1992, submitted an application for VA burial benefits. The RO, in April 1992, performed a rating action to determine the veteran's entitlement to pension benefits with special monthly pension for accrued benefits purposes pursuant to 38 U.S.C.A. § 5121 (West 1991). Based on the osteopath's report, the RO determined the veteran had been entitled to a permanent and total disability rating for pension purposes as of the date of his claim. However, the RO also determined that he had not been entitled to special monthly pension as being housebound or in need of regular aid and attendance. The RO, by a letter dated at the end of May 1992, informed the appellant that her claim for a nonservice-connected burial allowance had been denied. The RO's April 1992 rating decision concerning accrued benefits was pertinent to the appellant's claim for a burial allowance because entitlement to the burial benefit may be established if the veteran, at the time of his death, was either in receipt of disability compensation or pension, 38 C.F.R. § 3.1600(b)(1) (1992), or had a pending claim for disability compensation or pension. 38 C.F.R. § 3.1600(b)(2) (1992). Although the veteran was service-connected at the time of his death at a noncompensable evaluation for anxiety neurosis, entitlement to a burial allowance on this basis cannot be established because he was not in receipt of monthly compensation. 38 U.S.C.A. § 101(13) (West 1991); 38 C.F.R. § 3.4(a) (1992); Osborne v. Principi, 3 Vet.App. 368, 370 (1992). However, he did have an "original" claim for pension "pending" at his death. 38 C.F.R. § 3.160 (1992). For an original claim, though, there must have been "sufficient evidence of record on the date of the veteran's death to have supported an award...of pension...." 38 C.F.R. § 3.1600(b)(2)(i) (1992). According to the August 1992 statement of the case, the veteran's family income was determined to have been excessive for VA pension purposes. At the time of his death, the annual income limitation for a veteran in receipt of pension was $9,689, for a veteran in receipt of pension and special monthly pension for being housebound was $11,333, and for a veteran in receipt of pension and special monthly pension for being in need of regular aid and attendance was $14,124. Appendix B, Part I, M21-1 (April 21, 1992). Hence, despite the April 1992 rating, there was no "award" of pension effective prior to the date of death, within the meaning of 38 C.F.R. § 3.1600(b)(2)(i). Subsequent to the issuance of the statement of the case, the appellant, in her substantive appeal, contended that the RO should have determined the veteran was in need of regular aid and attendance, so that a higher annual income limitation for pension would have been applicable to his pension claim. The issue of entitlement to special monthly pension by the veteran is thus inextricably intertwined with the issue of the appellant's entitlement to burial benefits. Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). The appellant asserts the RO failed to include in the statement of the case the pertinent evidence, laws and regulations, and discussion concerning the issue of entitlement to special monthly pension as required by regulation. 38 C.F.R. § 19.29 (1992). The Board is required to remand a case to the RO if the RO's failure to discuss relevant issues in the statement of the case would be prejudicial to the appellant. VA O.G.C. Prec. Op. No. 16-92 (Dec. 12, 1992). If considering a claim for VA burial allowance in a case where the deceased veteran had a pension claim pending at the time of his death, paragraph 13-3c of M21-1 instructs the field offices to adjudicate the claim as though it were for accrued benefits, meaning: "The requirements regarding evidence in file at the date of death will apply." The law concerning accrued benefits indicates the claim must be based on evaluation of "evidence in the file at date of death." 38 U.S.C.A. § 5121(a) (West 1991). The United States Court of Veterans Appeals, in the case of Hayes v. Brown, U.S. Vet. App. No. 91-1140 (Mar. 11, 1993) (copy attached), addressed the issue of what constitutes "evidence in the file at date of death." The Court stated that, although it is clear that 38 C.F.R. § 3.1000(d)(4)(i) permits only the death certificate and the evidence in the file at the date of death, Id. at 8, 38 U.S.C.A. § 5121(c), pertinent provisions of the M21-1 appear to contradict, qualify, or expand the scope of post-death evidence to be considered. Id. at 10-12. The Court held that the M21-1 provisions were substantive rules of law. Id. at 11. These rules consider the reports of VA examinations not in the record at the time of death as being in the file at date of death. Paragraph 56.24 and Paragraph 57.03 of Part I, M21-1. Furthermore, the Court found that 38 C.F.R. § 3.327(b)(1) (1992) deems any hospitalization report or any examination report as included in the term "Department of Veterans Affairs examination," the reports of private hospitalizations and examinations received after death may be considered in adjudicating an accrued benefits claim. Id. at 12. The appellant requests that the reports of the veteran's hospitalizations in January 1992 and February 1992 be obtained, as well as that inquiries be made to the hospital and the veteran's nursing home to determine the treatment and assistance he required prior to his death. The Board determines the appellant has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once an appellant has submitted a well-grounded claim, the VA has a duty to assist the appellant in the development of her claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Accordingly, this case is REMANDED to the RO for the following action: 1. After obtaining the necessary authorization from the appellant, the RO should obtain reports of any hospitalizations of the veteran at the Florida Hospital in Altamonte Springs, Florida. 2. The RO should obtain from the appellant the name and address of the nursing home that she contends the veteran was living in prior to his death. After obtaining the necessary authorization, the RO should obtain any medical reports concerning the veteran that may be possessed by that facility. 3. The RO should develop the evidence as to any possible medical expenses of the veteran prior to his death that could possibly be excluded from the computation of his income for pension purposes. 4. After completing the above-requested development, the RO should readjudicate the appellant's claim for burial benefits to include the question of whether burial benefits may be premised on the veteran's pending claim for special monthly pension. If the appellant's claim remains denied, the RO should furnish the appellant and her representative with a supplemental statement of the case that includes the pertinent evidence, laws and regulations, and discussion concerning the special monthly pension issue. They should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development and readjudication of issues pertinent to this appeal, and the Board does not intimate any opinion, either favorable or unfavorable, at this time. No action is required of the appellant until she is notified. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 WARREN W. RICE, JR. JACQUELINE E. MONROE CHARLES E. HOGEBOOM Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1992).