1. A survivor's pension is denied. 2. Accrued benefits is denied. REMANDED Dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1151. ? FINDINGS OF FACT 1. The appellant's income exceeds the…

Citation Nr: A26069974 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 240905-471217 DATE: July 30, 2026 ORDER 1. A survivor's pension is denied. 2. Accrued benefits is denied. REMANDED Dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1151. ? FINDINGS OF FACT 1. The appellant's income exceeds the applicable (MAPR). 2. The Veteran did not have any unpaid VA benefits or any claims pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for a survivor's pension are not met. 38 U.S.C. §§ 1503, 1541, 5107; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.102, 3.271, 3.272. 2. The criteria for accrued benefits are not met. 38 U.S.C. §§ 5107, 5121; 38 C.F.R. §§ 3.102, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to May 1967. The Veteran died in July 2023 and the appellant is seeking benefits based on claiming she is his surviving spouse for VA benefit purposes. The case is on appeal from a November 2023 Regional Office (RO) decision. In the September 2024 notice of disagreement (NOD) on appeal, the appellant elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the November 2023 decision as well as any evidence submitted by the appellant at the time of the hearing or within the 90 days following the hearing. 38 C.F.R. § 20.302. The Board cannot consider (1) evidence submitted during the period after the RO issued the decisions on appeal and before the NOD was received or (2) evidence submitted more than 90 days after the Board hearing was held. In February 2026, the appellant testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A survivor's pension. Legal Criteria 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. § 1541; 38 C.F.R. § 3.3(a)(3). The MAPR 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, 1541; 38 C.F.R. §§ 3.3, 3.23(b). 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). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272 and 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 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 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. Analysis Prior to his death, the Veteran reported in a December 2019 pension claim form that he had been separated from the appellant for 20 years. In September 2023, the appellant submitted an application for VA surviving spouse benefits. She reported that she had not lived with the Veteran continuously from their date of marriage until his death. She also reported receiving income from the SSA. The appellant did not claim a special monthly pension or report unreimbursed medical expenses other than Medicare premiums. Later in September 2023, the appellant reported receiving additional annualized income of $35,459.40. In October 2023, the RO found that the appellant is the Veteran's surviving spouse for VA purposes, but did not provide any rationale for this finding. In this regard, to qualify as a surviving spouse for VA purposes, the individual must have lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse. See 38 C.F.R. § 3.50. As the file does not include any indication as to the cause of the appellant's separation from the Veteran, this finding of the RO constitutes clear and unmistakable error. The Board notes that this issue is not the basis for the denial of pension or accrued benefits herein and that the issue of whether the appellant qualifies as the Veteran's surviving spouse is the subject of additional development for the remanded DIC claim. In November 2023, the RO associated the appellant's SSA information with the file. This shows that the appellant has annualized SSA income of $25,078.80 and pays annualized Medicare premiums of $1,978.80. During the February 2026 Board hearing, the Veterans Law Judge (VLJ) stated that the pension claim was denied because the appellant's income is too high and that the appellant was just going to focus on the cause of death claim. The appellant's attorney representative acknowledged that the VLJ was correct. The Board finds survivor pension benefits are not warranted because the appellant's countable income exceeds the applicable MAPR. The applicable MAPR for the appellant during the appeal period is $10,757. The appellant's annualized income during the appeal period is $60,538.20. The appellant has unreimbursed medical expenses of $1,978.80. Subtracting $537 (5 percent of the applicable MAPR) from these expenses results in a total expense deduction of $1,441.80. Total income minus the medical expense deduction leaves an adjusted income of $59,096.40, which is in excess of the applicable MAPR. Accordingly, 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 a survivor's pension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Accrued benefits. Legal Criteria Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Accrued benefits may be paid to reimburse the person who bore the expense of last sickness or burial. For accrued benefit claims, the relevant evidence must have been associated with the claims file at the time of the Veteran's death or been in VA's possession even if not in the claims file. See 38 C.F.R. § 3.1000(a), (d)(4). To the extent that outstanding service treatment records (STRs) or VA records are associated with the file after the Veteran's death, such records are considered to be in the constructive possession of VA at the time of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); see Hayes v. Brown, 4 Vet. App. 353 (1993). Analysis The appellant's September 2023 claim was also accepted as a claim for accrued benefits. The appellant has not claimed and the Veteran's file does not indicate that he had any unpaid VA benefits at the time of his death. In addition, the Veteran did not have a claim for benefits pending at the time of his death. Prior to his death, the Veteran had filed a pension claim in December 2019. The claim was granted in full by a March 2020 rating decision and the file documents that the Veteran was paid the full amount of such benefits prior to his death. Therefore, this claim is denied because the Veteran did not have any unpaid VA benefits or any claims pending at the time of his death. Accordingly, 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 entitlement to accrued benefits is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND DIC under the provisions of 38 U.S.C. § 1151. Prior to his death, the Veteran reported in a December 2019 pension claim form that he had been separated from the appellant for 20 years. The Veteran died in July 2023. His death certificate reports an immediate cause of death of acute respiratory failure with conditions leading to the cause of death of aspiration pneumonia and sacral osteomyelitis and an underlying cause of death of advanced debility. In September 2023, the appellant submitted an application for a survivor's pension. She reported that she had not lived with the Veteran continuously from their date of marriage until his death. As noted above, in October 2023, the RO found that the appellant is the Veteran's surviving spouse for VA purposes, but did not provide any rationale for this finding. In this regard, to qualify as a surviving spouse for VA purposes, the individual must have lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse. See 38 C.F.R. § 3.50. As the file does not include any indication as to the cause of the appellant's separation from the Veteran, this finding of the RO constitutes clear and unmistakable error. During the February 2026 Board hearing, the appellant's attorney representative stated that the claim for DIC is being raised under the provisions of 38 U.S.C. § 1151. The representative claimed that the Veteran's cause of death of osteomyelitis was referring to bed sores that reached the bone. The appellant reported that the Veteran was treated at a Methodist facility for a stroke before being admitted to the VA hospital for care. She stated that he had bed sores when he was at the Methodist facility. The representative then claimed that the Veteran did not have bed sores prior to admission to the VA hospital. The appellant reported that he was unable to breathe or swallow when he was admitted for treatment for pneumonia and chronic obstructive pulmonary disorder (COPD). She claimed that the VA facility did "nothing" to treat him. The Board finds that a remand is required to obtain the Veteran's VA treatment records. In addition, the RO must request the appellant provide a statement as to the reason for her separation from the Veteran. This claim is REMANDED for the following actions: 1. Ask the appellant to provide a statement as to the reason for her separation from the Veteran. 2. Obtain all of the Veteran's VA treatment records to include from VA facilities in Memphis, Tennessee. If such records are unavailable, the file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.