Citation Nr: 0007552 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-04 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to accrued pension benefits on the basis of a retroactive award under 38 C.F.R. § 3.400(b)(1)(ii)(B) (1999). 2. Entitlement to accrued pension benefits based on prospective estimation of unreimbursed medical expenses in the claimed amount of $11,917.40. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran was honorably discharged in December 1969 with twenty years of active duty service. He died on June [redacted], 1997; the appellant is the widow of the deceased veteran. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1997 letter-decision issued by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). REMAND In view of the arguments/contentions raised in the appellant's substantive appeal of April 1998, the Board will remand this case to the RO for further development and adjudication. The appeal was certified to the Board as a claim for "consideration of unreimbursed medical expenses to reduce countable income," but based on her contentions and the procedural history of the case, it appears that she has raised two issues: (1) entitlement to accrued pension benefits on the basis of a retroactive award under 38 C.F.R. § 3.400(b)(1)(ii)(B) (1999), and (2) entitlement to accrued pension benefits based on prospective estimation of unreimbursed medical expenses in the claimed amount of $11,917.40. The pertinent facts in this case are as follows: The veteran was service-connected during his lifetime for disabilities rated a combined 40 percent disabling. He had been in receipt of these benefits since January 1970. In March 1997, he filed a claim requesting entitlement to improved disability pension benefits with an additional allowance for aid and attendance. In the course of the development of this claim, he filed an "Income-Net Worth and Employment Statement," VA Form 21-527, in April 1997. With this form, the veteran attached a VA Form 21-8416 detailing his medical expenses. Based on the information provided on these forms and with consideration of the medical findings reported on a VA housebound/aid and attendance medical examination conducted in February 1997, the RO issued a rating decision in April 1997 granting the veteran entitlement to nonservice- connected disability pension with special monthly pension on account of need of regular aid and attendance from the date of claim, March 17, 1997. However, an award letter issued in May 1997 informed the veteran that he would not be paid a pension due to excessive income. The letter explained that the maximum annual rate of income for a veteran with one dependent (his wife) for receipt of pension benefits was $16,201. His income was then calculated at $22,617 (his and his wife's Social Security benefits plus a military retirement pension, minus deductible unreimbursed medical expenses of $1,554). The veteran's VA Form 21-8416 claimed over $10,000 in unreimbursed medical expenses paid in calendar year 1996. For these reasons, the veteran was advised that his compensation benefits at the 40 percent combined rate would continue to be paid on account of being the greater benefit. Subsequently, the RO received a "Statement in Support of Claim," VA Form 21-4138, in May 1997 from the veteran in which he requested an explanation as to the reasons why VA only deducted $1,554 in medical expenses. In June 1997, he was advised by letter from the RO that because he was not entitled to pension benefits until March 17, 1997, his unreimbursed medical expenses for calendar year 1996 could not be counted for purposes of his claim. He was advised, however, that he could submit information concerning medical expenses that he considered recurring in nature, such as medical insurance premiums, sitter's fees and some prescription expenses. In response to this letter, the RO received the veteran's notice of disagreement on June 25, 1997; unfortunately, before further action could be taken to develop the appeal, the RO received word that the veteran died on June [redacted], 1997. However, in December 1997, the appellant filed a Statement in Support of Claim which timely initiated an accrued claim for these benefits. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998) (U. S. Court of Appeals for the Federal Circuit held that in order for a surviving spouse to be entitled to accrued benefits, the veteran must either have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision). As mentioned above, the appellant perfected her appeal of the accrued pension claim with the filing of a substantive appeal in April 1998. From her arguments, it appears that she has specifically requested consideration of the accrued pension claim on the basis of the issues listed above on the title page. With respect to Issue #1, the RO on readjudication must specifically address the appellant's contentions regarding her belief that the evidence in the file at the date of the veteran's death potentially established entitlement to a retroactive award of pension benefits under 38 C.F.R. § 3.400(b)(1)(ii)(B) (1999). With respect Issue #2, the RO must address the impact of the General Counsel's precedent opinions in VAOPGCPREC 6-93, 59 Fed. Reg. 4753 (1994) and VAOPGCPREC 12-94, 59 Fed. Reg. 54673 (1994), as to the question of allowing accrued pension benefits under 38 U.S.C. § 5121(a) on the basis "permitted prospective estimation" of unreimbursed medical expenses shown by the evidence in the file at the date of the veteran's death. These issues have not been fully developed and addressed at the RO level, and in light of her contentions, it is clear that she desires a complete and thorough analysis of her claim on these issues, with appropriate references to the law, regulations and judicial precedent pertinent thereto before further appellate review by the Board is undertaken. Accordingly, this case is REMANDED to the RO for following development: As detailed above, the RO must readjudicate the claim on appeal regarding the issues of (1) entitlement to accrued pension benefits on the basis of a retroactive award under 38 C.F.R. § 3.400(b)(1)(ii)(B) (1999), and (2) entitlement to accrued pension benefits based on prospective estimation of unreimbursed medical expenses in the claimed amount of $11,917.40. The RO is directed to carefully examine all the evidence of record in light of the appellant's arguments and contentions expressed in her substantive appeal of April 1998, for the express purpose of addressing her claim of accrued pension benefits entitlement on the issues she has raised which have been articulated by this remand. The RO should also carefully examine her arguments for the purpose of addressing all other potential bases of entitlement to the benefits sought. The readjudication of the claim must be based on all the evidence of record, including any additional evidence/argument obtained by the RO pursuant to this remand. A complete and detailed explanation for all findings and conclusions reached should be clearly set forth on readjudication. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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. A. BRYANT 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).