Decision Date: 09/12/95 Archive Date: 09/12/95 DOCKET NO. 93-14 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to additional improved pension benefits to include aid and attendance benefits, for the period from July 1, 1990 to July 1, 1992, for the purpose of establishing entitlement to accrued benefits. REPRESENTATION Appellant represented by: Mr. V. Alan Riley ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from June 1942 to September 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1992 decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which was further clarified in a December 1992 letter. The notice of disagreement was received in March 1993. The statement of the case was sent to the veteran in April 1993. The substantive appeal was received in June 1993. REMAND This case involves a claim for accrued benefits by a surviving spouse on the basis of a pension eligibility verification report (EVR) detailing unreimbursed medical expenses for the period preceding the death of the veteran, but filed after the date of the death. Evidence in the record indicates that the veteran was in receipt of Section 306 pension benefits effective October 3, 1969. Subsequently, the veteran elected to received improved pension benefits effective July 1, 1984. Thereafter, the veteran's pension benefits were discontinued effective September 1, 1986 based on excessive income. The veteran reapplied for pension benefits. He submitted an EVR which was received in August 1989. In the EVR, the veteran indicated that he received $298 in Social Security payments and $117.97 in other retirement benefits on a monthly basis. He indicated that his wife earned $2,500 in income from July 1, 1988 to June 30, 1989, but did not expect to earn income from July 1, 1989 to June 30, 1990. The veteran reported $1,611.21 in unreimbursed medical expenses for the period of July 1, 1988 to June 30, 1989. Based on the information reported in the EVR, the veteran's pension benefits were reinstated and his benefits were adjusted on a retroactive basis according to the information indicated in the EVR for the period of July 1, 1988 to July 1, 1989. In a December 1989 rating decision, the veteran was granted entitlement to special monthly pension based on aid and attendance from November 29, 1989. In August 1990, an EVR was received. In the EVR, the veteran indicated that he received $312 in Social Security payments and $117.97 in other retirement benefits on a monthly basis. He indicated that his wife earned $1,947.30 in income from July 1, 1989 to June 30, 1990, but did not expect to earn income from July 1, 1990 to June 30, 1991. The veteran reported $2,514.21 in unreimbursed medical expenses for the period of July 1, 1989 to June 30, 1990. Based on that information, the veteran's pension benefits were adjusted retroactively for the period of July 1989 to July 1990. In July 1991, an EVR was received. In the EVR, the veteran indicated that he received $328 in Social Security payments and $127.47 in other retirement benefits on a monthly basis. The veteran reported $3,182.20 in unreimbursed medical expenses for the period of July 1, 1990 to June 30, 1991. Based on that information, the veteran's pension benefits were adjusted retroactively for the period of July 1990 to July 1991. In a November 1, 1991 letter, the veteran was advised of how his unreimbursed medical expenses were used in calculating his pension rate. Thus, in sum, the Board observes that the veteran filed an EVR on an annual basis in each of the several years prior to his death, and based on the unreimbursed medical expenses paid by the veteran during the income reporting period, his countable annual income for each relevant period was adjusted accordingly on a retroactive basis. According to the certificate of death, the veteran died on July [redacted], 1992. An EVR was subsequently received on July 22, 1992. It was indicated in the EVR that the veteran had received $340.50 in Social Security payments on a monthly basis for the period of July 1991 presumably to his death. Unreimbursed medical expenses were reported as being $6,785.80 for the period of July 1991 to his death. This case was certified to the Board in June 1993. Pursuant to the authority prescribed by 38 U.S.C.A. § 7104(c) (West 1991) and 38 C.F.R. 20.901(c) (1994), the Board observes that an opinion from the General Counsel (GC) of the VA was requested on legal questions which are involved in the consideration of this appeal. On August 9, 1993, the GC issued an opinion on the following two questions: a) Under what circumstances, if any, may information contained in an eligibility verification report filed after a beneficiary's death be considered in determining eligibility for accrued benefits under 38 U.S.C. § 5121(a); and b) May an award of accrued benefits under 38 U.S.C. § 5121(a) be based on logical inferences from information of record at the date of the beneficiary's death? VA O.G.C. Prec. Op. No. 6-93 (Aug. 9, 1993). In response to these questions, the GC held that: a) Information contained in an eligibility verification report submitted after the beneficiary's death may not be considered "evidence in the file at date of death" for purposes of an award of accrued pension benefits under 38 U.S.C. § 5121(a); and b) An award of accrued benefits under 38 U.S.C. § 5121(a) may be based on logical inferences from information in the file at the date of the beneficiary's death. VA O.G.C. Prec. Op. No. 6-93 (Aug. 9, 1993). Further, the Board requested another opinion of the GC which is also relevant to this appeal. On May 2, 1994, the GC issued an opinion on the following two questions: a) For purposes of determining entitlement to accrued pension benefits under 38 U.S.C. § 5121(a), where evidence submitted prior to a beneficiary's death provides sufficient basis for prospective estimation of unreimbursed medical expenses, may such evidence form the basis for an award of accrued benefits only in cases where unreimbursed medical expenses were actually deducted prospectively from the deceased beneficiary's income for purposes of determining pension entitlement during the beneficiary's lifetime; and b) What criteria must be met in order to provide a sufficient basis for prospective estimation of medical expenses? VA O.G.C. Prec. Op. No. 12-94 (May 2, 1994). In response to these questions, the GC held that: a) Accrued pension benefits may be allowed under 38 U.S.C. § 5121(a) on the basis that evidence in the file at the date of a veteran's death permitted prospective estimation of unreimbursed medical expenses, regardless of whether unreimbursed medical expenses were actually deducted prospectively from the veteran's income for purposes of determining pension entitlement prior to the veteran's death; and b) Where a veteran had in the past supplied evidence of unreimbursed medical expenses which, due to the static or ongoing nature of the veteran's medical condition, could be expected to be incurred in like manner in succeeding years in amounts which, based on past experience, were capable of estimation with a reasonable degree of accuracy, such evidence may form the basis for a determination that evidence in the file at the date of the veteran's death permitted prospective estimation of medical expenses. There may be situations in which medical expenses may be predicted with a reasonable degree of accuracy from evidence in the file at the date of the veteran's death on a basis other than the recurring nature of the expenses. The Board is bound in its decisions by applicable statutes, VA regulations, instructions of the Secretary, and precedent opinions of the GC, except to the extent that they are inconsistent with binding judicial decisions. 38 U.S.C.A. § 7104(c) (West 1991); 38 C.F.R. § 19.5 (1994); Bernard v. Brown, 4 Vet.App. 384, 394 (1993). As the GC has essentially determined that the information contained in an EVR submitted after the beneficiary's death may not be considered "evidence in the file at date of death" pursuant to 38 U.S.C.A. § 5121 (West 1991), the remaining question for purposes of accrued benefits which must be addressed by the RO should focus on the logical inferences which may be made based on information in the file at the date of the veteran's death. The RO essentially must determine whether the unreimbursed medical expenses claimed in the EVR submitted after the veteran's death were reasonably estimable, based the evidence on file at the date of the veteran's death, to include income and medical expense information contained in prior reports. In addition to determining whether there existed in the file at the date of the veteran's death prima facie evidence of the expenses related to unreimbursed medical expenses during the annualized period immediately preceding his death, the RO must also determine whether the prima facie evidence has been corroborated by satisfactory evidence of actual expenses paid during the annualized period in question. In addition, per the May 1994 GC opinion, the RO must also determine whether any of the medical expenses at issue could have been predicted with a reasonable degree of accuracy from evidence in the file at the date of the veteran's death on a basis other than the recurring nature of the expenses. In this respect, the RO should not only consider the provisions of 38 U.S.C.A. §§ 1503(a)(8),1521, 5121 (West 1991) and 38 C.F.R. §§ 3.23, 3.271(a), 3.272(g), 3.273, 3.1000 (1994) in readjudicating the appellant's claim but also consider the applicability of the guidance as provided in the pertinent provisions of the VA Adjudication Procedure Manual relating to improved pension and accrued benefits including M21-1, Part IV, ch. 16, para. 16.31(e), regarding award action to allow medical expenses prospectively, and M21-1, Part IV, ch. 27, para. 27.08(b), relating to evidence in the file at the date of death (38 C.F.R. § 3.1000(d)(4) (1994)). VA Adjudication Procedure Manual, M21-1, Part IV, ch.16, para. 16.31(e)(Mar. 29, 1993); VA Adjudication Procedure Manual, M21-1, Part IV, ch.27, para. 27.08(b) (July 26, 1994). In this regard, the Board has determined that the RO as the agency of original jurisdiction should readjudicate the appellant's case in light of the aforementioned binding legal authority as presented in the August 1993 and May 1994 Precedent Opinions of the GC. Due to the precedential weight to be accorded these opinions, the Board finds that a remand is required to safeguard the appellant's statutory and regulatory rights. It is important to note that this case involves a complex legal issue with binding legal authority recently issued. In order to assure procedural fairness to the appellant, she must be afforded notice and an opportunity to be heard in the course of its development. Accordingly, the Board has determined that no legal recourse is feasible other than remand to the RO for readjudication. In view of the foregoing, it is our opinion that additional action is necessary before a final determination of this claim. Accordingly, the claim is REMANDED for the following action: 1. The RO should reconsider the appellant's claim for accrued benefits based upon the veteran's entitlement to improved pension benefits to include aid and attendance benefits during the income reporting year from July 1991 to July 1992, taking into consideration the above cited opinions of the VA General Counsel. The RO should specifically consider the provisions of 38 U.S.C.A. §§ 1503(a)(8), 1521, 5121 (West 1991) and 38 C.F.R. §§ 3.23, 3.271(a), 3.272(g), 3.273, 3.1000 (1994) in readjudicating the appellant's claim and also consider the applicability of the guidance as provided by VA Adjudication Procedure Manual, M21-1, Part IV, ch.16, para. 16.31(e) (Mar. 29, 1993) and VA Adjudication Procedure Manual, M21-1, Part IV, ch.27, para. 27.08(b) (July 26, 1994). 2. In readjudicating the appellant's claim under 38 U.S.C.A. § 5121(a) (West 1991), the RO must determine whether an award of accrued benefits may be based on logical inferences from information in the file at the date of the veteran's death on July [redacted], 1992, such as income and medical expense information submitted prior to the annualized period immediately preceding the date of the veteran's death. The RO must determine: (a) whether the unreimbursed medical expenses at issue, if any, may be considered to have been of a recurring nature in amounts reasonably estimable based upon evidence of record at the date of the veteran's death or whether any of the medical expenses at issue could have been predicted with a reasonable degree of accuracy from evidence in the file at the date of the veteran's death on a basis other than the recurring nature of the expenses; (b) whether the evidence in the file at the date of death is prima facie evidence that similar unreimbursed medical expenses would be incurred during the annualized period immediately preceding the veteran's death; and (c) whether this prima facie evidence was corroborated by consistent evidence of actual unreimbursed medical expenses submitted after the veteran's death. 3. The RO should issue a formal decision detailing which claimed unreimbursed medical expenses in connection with the appellant's accrued benefits claim, if any, may be considered to be in the nature of unreimbursed medical expenses that were recurring, predictable, and reasonably estimable, based on the evidence of record at the date of the veteran's death and detailing whether those expenses are satisfactorily confirmed by corroborating evidence submitted by the appellant after the date of the veteran's death. If the determination remains adverse to the appellant, she should be provided a supplemental statement of the case that fully addresses the issue as outlined by paragraphs 1 and 2 above. This should contain a summary of additional evidence submitted and considered, citations of applicable laws and regulations, and the reasons for the decision. The appellant and her representative should be afforded an opportunity to respond thereto. The claims folder should be returned to the Board for further appellate review on any issue in appellate status. No action is required by the appellant unless she receives further notice. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1994). - 2 -