Citation Nr: 0005566 Decision Date: 02/11/00 Archive Date: 09/08/00 DOCKET NO. 98-20 268 DATE FEB 11, 2000 On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether the payment of the veteran's burial expenses should be allowed as a deduction from the appellant's income. 2. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from July 1944 to August 1945. He is deceased, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A December 1997 rating decision, in pertinent part, denied entitlement to service connection for the cause of the veteran's death. The appellant was notified in January 1998 that she was being awarded death pension benefits. The RO did not deduct from her income for 1997 amounts she had paid for the veteran's final expenses, and she disagreed with that determination. The appellant's claim for service connection for the cause of the veteran's death is the subject of the REMAND herein. FINDINGS OF FACT 1. The veteran died on August 9, 1997. 2. The appellant's claim for death pension benefits was received on October 9, 1997. 3. The appellant paid the veteran's final burial expenses on October 6, 1997. 2 - CONCLUSION OF LAW The criteria for deduction of the veteran's burial expenses from the appellant's countable income for death pension purposes have not been met. 38 U.S.C.A. 501 and 5110(d)(2) (West 1991); 38 C.F.R. 3.271(a), 3.272(h), and 3.400(c)(3) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted above, the appellant is claiming that the payment she made for the veteran's burial expenses in 1997 should be deducted from her countable annual income for that year. Although she was awarded death pension benefits, she claims she is entitled to increased benefits because the RO erred in not reducing her income by the amount paid for the veteran's final expenses. The surviving spouse of a veteran is entitled to receive VA improved (nonservice- connected) death pension if the veteran had qualifying service, or, it the time of death, was receiving or entitled to receive compensation for a service-connected disability. 38 U.S.C.A. 1541(a) (West 1991); 38 C.F.R. 3.3(b)(4) (1999). Improved death pension benefits shall be paid at the maximum annual rate reduced by the amount of annual income received by the surviving spouse and any dependent children. 38 U.S.C.A. 1541 (b) and (c) (West 1991); 38 C.F.R. 3.3(b)(4)(iii), 3.23(a)(5), (b), and (d)(5) (1999). In computing income for pension benefits awarded after January 1, 1979, payments of any kind from any source are to be counted as income for purposes of determining eligibility for improved pension unless specifically excluded under 38 C.F.R. 3.272. 38 C.F.R. 3.271(a) (1999). 3 - Where, as here, burial expenses are paid during the calendar year in which a veteran has died, they are excluded from countable annual income during the twelve-month annualization period in which they were paid or for any twelve-month annualization period which begins during the calendar year of the veteran's death, whichever is to the claimant's advantage. 38 C.F.R. 3.272(h) (1999). However, any such expenses paid subsequent to death but prior to the date of entitlement to pension are not deductible. Id. In general, pension benefits may not be authorized for any period prior to the date of receipt of a new claim. 38 C.F.R. 3.660(b) (1999). Where death benefits are awarded based on a nonservice-connected death, the effective date of the award will be the first day of the month in which the veteran died if the claim is received within 45 days after the date of death. 38 U.S.C.A. 5110(d)(2) (West 1991); 38 C.F.R. 3.400(c)(3) (1999). Otherwise, date of entitlement will be date of receipt of claim. Id. The veteran died on August 9, 1997. The appellant's claim for pens ion was received on October 9, 1997. She paid the veteran's final burial expenses on October 6, 1997. Since her claim for death pension benefits was received more than 45 days following the veteran's death, the effective date of her entitlement to pension benefits must be based on the date of receipt of the claim. 38 U.S.C.A. 5110(d)(2) (West 1991); 38 C.F.R. 3.400(c)(3) (1999). The evidence from the appellant and the funeral home clearly shows that these expenses were paid on October 6, 1997, and the appellant does not argue otherwise. Since she paid the veteran's final expenses subsequent to his death but prior to the date of her entitlement to pension benefits, such expenses are not deductible from her countable income. 38 C.F.R. 3.272(h) (1999). In this case, the appellant's claim lacks legal entitlement under the applicable laws and regulation. In a case where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1997). Accordingly, the appellant's claim is denied.. 4 - ORDER The appellant's claim that her payment of the veteran's burial expenses should be allowed as a deduction from her income is denied. REMAND Additional evidentiary development is warranted prior to appellate disposition of the appellant's claim for service connection for the cause of the veteran's death. The evidence shows that the veteran died in August 1997 due to, or as a consequence of, sudden coronary occlusion that was due to, or as a consequence of, arteriosclerotic cardiovascular disease. The veteran was service-connected for anxiety reaction, which a VA examiner in 1956 stated was manifested, in part, by cardiac symptoms. The medical records from the veteran's final period of hospitalization at Abrom Kaplan Memorial Hospital are not associated with the claims file. These treatment records may be relevant to the appellant's claim and are necessary for a fair adjudication of her claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore, an attempt to obtain these records is warranted. Accordingly, while the Board regrets the delay, in order to assure that the evaluation of the appellant's claim is a fully informed one, the case is REMANDED for the following: 1. Request that the appellant provide a list of the names and addresses of any medical providers who treated the veteran for his heart condition and/or his service- connected anxiety reaction. After securing any necessary releases, request from the sources listed by - 5 - the appellant all records of any treatment. It is particularly important to obtain the veteran's medical records from Abrom Kaplan Memorial Hospital from his final period of hospitalization. All records obtained should be associated with the claims file. If any request is unsuccessful, advise the appellant that the treatment records from any medical professional that treated the veteran for his heart and/or psychiatric disorder are important to her claim. Advise the appellant that it is her responsibility to submit them. See 38 C.F.R. 3.159(c) (1999). Allow an appropriate period of time within which to respond. 2. Thereafter, readjudicate the appellant's claim for service connection for the cause of the veteran's death. If the benefit sought on appeal remains denied, provide the appellant and her representative a supplemental statement of the case, and allow an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 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). The purpose of this REMAND is to obtain additional medical information. No inference should be drawn regarding the final disposition of this claim as a result of this action. 6 - 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. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals