Arcala v. Principi

4 Vet. App. 72, 1993 U.S. Vet. App. LEXIS 24, 1993 WL 6388
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 15, 1993
DocketNo. 90-1522
StatusPublished

This text of 4 Vet. App. 72 (Arcala v. Principi) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arcala v. Principi, 4 Vet. App. 72, 1993 U.S. Vet. App. LEXIS 24, 1993 WL 6388 (Cal. 1993).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The pro se appellant, widow of World War II veteran Reynaldo Arcala, appeals an October 18, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to an effective date earlier than November 3, 1988, for non-service-connected death pension benefits. Severina B. Arcala in the Case of Reynaldo Arcala, BVA 90-34935 (Oct. 18, 1990) (Ar-cala ). The Secretary of Veterans Affairs (Secretary) has moved for summary affir-mance. The Court held this case in abeyance awaiting the outcome of the en banc appeal in Russell v. Principi, 3 Vet.App. 310 (1992) (consolidated with Collins v. Principi, No. 90-416). Now that that case has been decided, summary disposition of this case is appropriate because the case is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the appellant has not provided a basis for reversing or amending prior final BVA decisions on the basis of clear and unmistakable (or obvious) error, the Court will affirm the October 18, 1990, BVA decision.

I. BACKGROUND

The appellant’s husband died in November 1983. R. at 3. In December 1983, the appellant applied to the Veterans’ Administration (now Department of Veterans Affairs) (VA) for non-service-connected improved pension. R. at 3; see 38 U.S.C. § 1541(a) (formerly § 541). The VA Regional Office (RO) denied her claim because her income, which included life insurance benefits, Philippines Social Security benefits, and possible accrued benefits from her husband’s then-current claim for VA pen[73]*73sion benefits during his lifetime, exceeded the statutory limit for pension eligibility. R. at 9; see 38 U.S.C. § 1541(a), (c).

In a September 25,1984, decision, the RO awarded the appellant accrued benefits under 38 U.S.C. § 3021 (now § 5121), finding that the veteran had been entitled to non-service-connected pension benefits based on permanent and total disability, under 38 U.S.C. § 521(a) (now § 1521), from August 8, 1983, until his death on November 12, 1983. R. at 11. On October 29, 1984, the appellant filed an income statement reflecting income only from Philippines Social Security benefits. R. at 14. She was awarded VA non-service-connected death pension benefits effective November 29, 1984. R. at 67. In a November 8,1985, decision, the RO awarded additional accrued benefits under 38 U.S.C. § 3021, finding that the veteran’s entitlement to pension benefits during his lifetime ran from August 9, 1982, until his death on November 12, 1983. R. at 47.

In January 1986, the appellant was informed by the VA that her death pension benefits would be discontinued beginning February 1, 1986, because her income, which included the award of accrued benefits under 38 U.S.C. § 3021, exceeded the statutory limit for pension entitlement. R. at 55. The effective date of the discontinuance was subsequently changed to April 1, 1986. R. at 68. In several letters to the VA in 1985 and 1986, the appellant asserted that the life insurance proceeds and the accrued VA benefits awarded to her should not have been considered income for purposes of determining her VA pension entitlement and that her pension benefits, therefore, should not have been discontinued. R. at 35, 42, 57, 62, 64, 71. Specifically, she claimed that 38 C.F.R. § 3.272 excluded life insurance proceeds from her countable income for pension purposes where the insurance premiums had been paid by the veteran, and that VA pension benefits to which the veteran was entitled during his lifetime were also so excluded. R. at 71.

In a July 13, 1987, decision, the BVA denied entitlement to pension benefits, concluding that both the life insurance proceeds she received in 1983 or 1984 and the accrued VA benefits paid to her in 1985 and 1986 were properly considered income to the appellant for the year in which such payments were received. R. at 77-80. The Board noted that, under 38 U.S.C. § 503 (now § 1503) and 38 C.F.R. § 3.271(a), payments of any kind from any source are to be counted as income in the year received unless specifically excluded, and that there were no specific exclusions for either life insurance proceeds or accrued VA benefits. The Board noted that 38 C.F.R. § 3.272(c) specifically excluded from income VA pension benefits payments “under chapter 15 of title 38, United States Code”, but concluded that the payment of accrued VA benefits to the appellant was made pursuant to 38 U.S.C. § 3021, in chapter 51, United States Code, rather than under chapter 15. R. at 79-80.

The appellant thereafter requested reconsideration of the Board’s decision, asserting that the Board had erred in failing to apply properly the provisions of 38 C.F.R. §§ 3.272, 19.185, and 19.186. R. at 82-83. The Board granted reconsideration and in a September 29, 1988, decision, referencing a VA General Counsel’s opinion that accrued VA benefits must be considered part of income for VA pension purposes, concluded that there was no “obvious error” of fact or law in the 1987 BVA decision which would warrant a change in that decision. R. at 95-100.

On November 3, 1988, the RO received a claim from the appellant for a restoration of her pension benefits. R. at 102. She was awarded pension benefits effective December 1, 1988. R. at 114. In letters dated August 25, 1989, and November 23, 1989, she stated that she sought an award of pension benefits retroactive to April 1, 1986, and requested reconsideration of the prior BVA decisions. R. at 122, 129. In support of her claim, she submitted a copy of a letter she had previously submitted to the RO in 1987, asserting that the BVA in July 1987 had erred in failing to apply properly 38 C.F.R. §§ 3.272, 19.195, and 19.196. R. at 130.

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Related

Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
Myers v. Derwinski
1 Vet. App. 127 (Veterans Claims, 1991)
Manio v. Derwinski
1 Vet. App. 140 (Veterans Claims, 1991)
Colvin v. Derwinski
1 Vet. App. 171 (Veterans Claims, 1991)
EF v. Derwinski
1 Vet. App. 324 (Veterans Claims, 1991)
Russell v. Principi
3 Vet. App. 310 (Veterans Claims, 1992)
Barbour v. Principi
3 Vet. App. 476 (Veterans Claims, 1992)
Mata v. Principi
3 Vet. App. 558 (Veterans Claims, 1992)

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Bluebook (online)
4 Vet. App. 72, 1993 U.S. Vet. App. LEXIS 24, 1993 WL 6388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arcala-v-principi-cavc-1993.