Veteranclaims’s Blog

August 7, 2020

Single Judge Application; VA Adjudication Procedures Manual, M21-MR, part V, supbart i, chapter 3, section D.15; death caused by a lingering or prolonged illness or acute attack;

Designated for electronic publication only
No. 19-3940
Before PIETSCH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: The pro se appellant, Donald J. Crusse, appeals a February 7, 2019,
Board of Veterans’ Appeals (Board) decision in which the Board denied him entitlement to “accrued benefits in excess of $1,530.” R. at 7-11. This appeal is timely and the Court has jurisdiction over the matters on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the matter on appeal for further proceedings consistent with this decision.
Veteran Donald Crusse served on active duty in the U.S. Army from January 1945 until
November 1946. R. at 251. He died on November 22, 2008. R. at 95.
In August 2014, Mr. Crusse’s surviving spouse and the appellant’s mother, Kathleen L.
Crusse, filed a claim for entitlement to pension benefits. R. at 238-45. On October 10, 2014, the
VA regional office (RO) granted Mrs. Crusse entitlement to aid and attendance effective August
15, 2014. R. at 214-17. She disagreed with the decision because, she asserted, “medical expenses
for” assisted living care were “not taken into account.” R. at 208.
On March 18, 2015, Mrs. Crusse asked VA to reopen a claim for entitlement to death
pension with aid and attendance. R. at 194. She reported that her monthly income “goes to pay
for my care, the shortfall is made up by my son.” Id. An attached form signed by a physician
reveals that Mrs. Crusse required care from an assisted living facility “since at least” March 24, 2010. R. at 198.
Mrs. Crusse died on March 25, 2015. R. at 92. According to her death certificate, he death was caused by “pleural effusions with pulmonary edema” with an “approximated interval
between onset and death” of one week. Id. Chronic heart failure, atrial fibrillation, and chronic lung disease also contributed to her death. Id.
In March 2016, the appellant filed a motion to be named substitute claimant to pursue
accrued benefits. He asserted that he is “eligible for the funds that would have been granted to
[Mrs. Crusse] under the claims in process at the time of her death” because he “had to contribute
my own assets to her care” during the final months of her life. R. at 99-103. He reported that he
paid $1,530 for funeral expenses and $60,174.85 to the assisted living facility where Mrs. Crusse
received care. R. at 101.
On February 7, 2019, the Board issued the decision presently under review. R. at 7-11.
The Board concluded that “the medical/assisted living expenses from 2013, 2014, and 2015
cannot be considered to be related to [Mrs. Crusse’s] last sickness” because “the death certificate
indicates that the last sickness had its onset 1 week before death and that [she] died at” a hospital.
R. at 10. The Board found that “only fees that the appellant incurred for [her] treatment at [the hospital] are classified as last illness expenses.” Id.
The appellant expressly argued before the Agency that the VA Adjudication Procedures
Manual, M21-MR, part V, supbart i, chapter 3, section D.15
should apply to his case. R. at 50.
Pursuant to that provision, if Mrs. Crusse’s death was caused by a lingering or prolonged illness rather than an acute attack, then the appellant may be entitled to reimbursement for the portion of the expenses for her assisted living care that he covered. R. at 50. On appeal, the appellant asserts that had the Board reviewed the matter, it would have concluded that the pleural effusions with
pulmonary edema that caused Mr. Crusse’s death were the final symptoms of her prolonged
struggle with congestive heart failure rather than an acute illness.
The Secretary concedes that the Board erred by failing “to precisely resolve whether Mrs.
Crusse’s death was due to an acute attack or from a lingering or prolonged illness.” Secretary’s
Brief at 7. The Court accepts the Secretary’s concession, and directs the Board to specifically
review and decide this case in accordance with the appellant’s reasonably raised theory of
entitlement and the Secretary’s concessions. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008),
aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
When the Board reexamines this case, it should acknowledge Mrs. Crusse’s medical history
and the additional illnesses that contributed to her death. Also, an “examination for housebound
status or permanent need for regular aid and attendance” conducted in August 2014 reveals that
she had a history of chronic heart failure and other cardiac disorders and had possible aortic
stenosis, renal insufficiency, osteoporosis, and chronic back pain. R. at 255. She was weak,
suffered from poor balance, and required a walker. R. at 255-56. On remand, the Board should
review this medical history and then apply it in a manner that the appellant and Secretary require.
Thompson v. Gober, 14 Vet.App. 187, 188 (2000). It should take care not to reach medical
conclusions without citation to appropriate medical authority. See Kahana v. Shinseki, 24
Vet.App. 428, 435 (2011).
The appellant asks the Court to immediately grant him entitlement to the reimbursement
that he seeks. The Board has yet to make the factual findings necessary to apply the M21-1MR
provision that he and the Secretary cite. By law, the Court is not permitted to make those factual
findings before the Board has reviewed the matter. See Hensley v. West, 212 F.3d 1255, 1263
(Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”).
Until the Board conducts an analysis that the Court can review for clear error, the Court cannot
reach a conclusion about whether the appellant is entitled to the benefits that he seeks. The law
requires the Court to remand this case for further adjudication at the Agency level. Tucker v. West,
11 Vet.App. 369, 374 (1998) (remand, rather than reversal, generally is appropriate where the
Board has failed to provide an adequate statement of reasons or bases for its determinations).
The Court need not address any other issues at this time, and, on remand, the appellant is
free to bring additional arguments to the Board’s attention. See Best v. Principi, 15 Vet.App. 18,
20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the appellant an
opportunity to argue those claimed errors before the Board at readjudication, and, of course, before
this Court in an appeal, should the Board rule against him [or her]”).
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s February 7, 2019, decision is VACATED and the matter on appeal is REMANDED
for further proceedings consistent with this decision.
DATED: August 6, 2020
Copies to:
Donald J. Crusse
VA General Counsel (027)

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