Citation Nr: 0001730 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-48 772A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether income exceeds the limit authorized by law for payment of death pension benefits. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs INTRODUCTION The veteran served on active duty from August 1943 to December 1946. He died on June [redacted], 1987. The appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an August 1996 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that denied the appellant's reopened claim for improved death pension benefits on the basis that the appellant's countable annual income exceeded the statutory maximum annual income limits. In March 1998, the Board issued a decision denying the appellant's claim, and she subsequently appealed to the United States Court of Appeals of Veterans Claims (formerly known as the U.S. Court of Veterans Appeals) (hereinafter "Court"). The appellant filed a pleading before the Court in May 1999 styled as a "Joint Motion for Remand", requesting that the Court vacate the Board's decision and remand the case to the Board for additional development and readjudication. The Court granted the motion in June 1999. The case was then returned to the Board for compliance with the directives in the Court's order and the motion for remand. The Board notes that the appellant originally applied for death pension benefits in June 1987, and was awarded said benefits effective July 1, 1987. However, in June 1988, the RO determined that the appellant was not entitled to death pension benefits, effective December 1987, on the basis that her countable annual income exceeded the allowed maximum. A review of the record revealed that the appellant did not appeal the 1988 RO determination in a timely manner (within one year), and therefore, that decision is final. It appears to the Board that the appellant has raised the additional issue of "clear and unmistakable error" in the June 1988 RO determination. See appellant's statement received in November 1996 (and subsequent statements of record). Although the appellant has attempted to raise this issue at the Board and before the Court, this issue must first be addressed by the RO, and then properly appealed, before the Board has legal jurisdiction to consider the merits of such claim. Absent an adjudication, a notice of disagreement, a statement of the case, and a substantive appeal, the Board does not have jurisdiction over the issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). Jurisdiction does matter and it is not "harmless" when the VA fails to consider threshold jurisdictional issues during the claim adjudication process. An application which is not in accord with statute shall not be entertained. 38 U.S.C.A. § 7108 (West 1991). Furthermore, this Board member cannot have jurisdiction of the issue. 38 C.F.R. § 19.13 (1999). Therefore, the issue is referred to the RO for appropriate action. The appellant should be informed of any determination and her associated appellate rights under separate letter. 38 C.F.R. § 3.103 (1999). If the appellant wishes to appeal from the decision, she has an obligation to file a timely notice of disagreement and a substantive appeal following the issuance of the statement of the case. 38 C.F.R. § 20.200 (1999). The Board also notes from review of correspondence submitted by the appellant that there appears to be a currently pending claim before the RO as to entitlement to benefits due to the veteran's death under the provisions of 38 U.S.C.A. § 1151. Thus, this issue also is not yet "ripe" for appellate review. REMAND In August 1996 the RO notified the appellant that it was denying her reopened claim for payment of non-service connected death pension because she received income in excess of the qualifying amount for the benefit sought, which at the time was $5,527.00. The appellant submitted a Notice of Disagreement (NOD) in October 1996 appealing the denial of her eligibility for non- service connected death pension. In December 1996, the RO issued a Statement of the Case (SOC) continuing the denial of non-service connected death pension benefits. The RO stated payments of deductible expenses were not shown on her application. It further concluded that her annual income, $7,6702, based primarily on her monthly income from Social Security of $516 and annual Medicare deduction of $558, exceeded the maximum income limit of $5,527. The appellant submitted a substantive appeal in December 1996. In March 1998 the appellant submitted a VA Form 21-8049 Request for Details of Expenses, and medical receipts in support of her claim. A surviving spouse may exclude unreimbursed medical expenses that are in excess of 5 percent of the applicable maximum annual pension rate or rates for the spouse as in effect during the applicable 12-month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.272(g)(2) (1999). The RO has not specified how it calculated the appellant's annual income of $6702. It is unclear whether the RO considered 38 C.F.R. § 3.262 in calculating the appellant's countable income. The appellant has submitted numerous statements since July 1996 in which she reported that her expenses had increased from the time she last filed for benefits from VA. This issue has not been addressed by the RO. In view of the foregoing, this case is REMANDED for the following: 1. The RO should request the appellant to complete a current EVR including a detailed report of any unreimbursed medical expenses. The RO should provide the appellant with EVRs for all annualization periods dating back to July 1996. To this end, the appellant should submit any additional information for the annualization periods from July 1996 to date. Pursuant to this, the RO should provide the appellant with several VA Forms 21- 8416 (Request for Information Concerning Medical, Legal, or Other Expenses) and should ask her to itemize thereon all unreimbursed medical expenses for the relevant annualization periods. The appellant should submit any additional information that might bear upon the proper calculation of her countable income. 2. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed, and if it has not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any development deemed essential in addition to that specified above, the RO should adjudicate the question of whether the appellant was entitled to receive improved pension benefits during the applicable annualization periods. In so doing, the RO should calculate the appellant's countable annual income for each of the applicable annual periods and should set forth in detail the bases for its calculations. In doing so, the RO should consider 38 C.F.R. §§ 3.262(e), 3.262(f), 3.272 (g)(2), and 3.272(h), as well as any other applicable regulations. If the benefit sought on appeal, for which a timely notice of disagreement has been filed, is not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. SANDRA L. SMITH Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).