Citation Nr: 9736994 Decision Date: 09/09/97 Archive Date: 11/06/97 DOCKET NO. 95-26 545 DATE On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether the retroactive payment in the amount of $6,354.00 made to the claimant under the Restored Entitlement Program for Survivors (REPS) for the period September 1, 1991 to September 1, 1993, was proper. ATTORNEY FOR THE BOARD Michelle E. Jensen, Associate Counsel INTRODUCTION The veteran had active service from August 1973 until his death in November 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1995 determination by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO), which awarded the appellant lump sum retroactive REPS benefits in the amount of $6,354.00 for the period September 1, 1991 to September 1, 1993. The appellant who is the veteran's surviving spouse appealed that decision to the BVA, and the case was referred to the Board for further review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO was incorrect in its determination that she is entitled to $6,1354.00 in retroactive REPS benefits. According to the appellant, she is entitled to a much greater retroactive benefit. The appellant maintains that the evidence supports her claim. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the claims file and appellant's REPS file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the retroactive REPS payment in the amount of $6,354.00 made to the claimant for the period September 1, 1991 to September 1, 1993, was proper. FINDINGS OF FACT 1. The appellant is eligible for retroactive REPS benefits from September 1, 1991, the month in which her youngest son, [redacted], turned 16 until September 1, 1993, the month in which [redacted] turned 18. Monthly payment amounts are based on the veteran's earnings record. 2. During the period September 1, 1991 to June 1, 1993, the appellant's three children were eligible for REPS benefits based on the veteran's earnings record. From June 1, 1993, two of the appellant's children were eligible for such benefits based on the veteran's earnings record. 3. The appellant is eligible for one-quarter of the monthly family maximum benefits from September 1, 1991 until June 1, 1993, and, thereafter, to one-third of the monthly family maximum benefits. CONCLUSION OF LAW The criteria for retroactive REPS benefits in excess of $6,354.00 for the period September 1, 1991 to September 1, 1993, have not been met. 38 C.F.R. 3.812 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. 5107 (a)(West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the appellant has presented a claim which is not implausible when her contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed and that no further assistance to the appellant is required in order to comply with the duty to assist her mandated by 38 U.S.C.A. 5107(a). The REPS, enacted by Congress in 1982, provides for the payment of benefits to certain surviving spouses and children of former members of the Armed Forces. See Pub. L. No. 97-377, Title I, 156, 96 Stat. 1920 (1982). REPS benefits replace certain Social Security benefits that were either reduced or terminated by the Omnibus Budget Reconciliation Act of 1981. Essentially, in August 1981, Public Law 97-35, the Omnibus Budget Reconciliation Act of 1981, discontinued payment of a mother's Social Security benefits at the point at which the youngest child in the mother's care reached age 16, instead of age 18. The 1981 changes eliminated the "parent with child in care" benefit when a surviving spouse's last child in care attains age 16; REPS restores payments to a surviving spouse until the youngest child of the veteran in the surviving spouse's care attains age 18. The 1981 changes also eliminated most student benefits for children over the age of 18; REPS restores payments to unmarried postsecondary school students between ages 18 and 22. As noted, in December 1982, Section 156 of Public Law 97-377 restored the mother's benefit for surviving spouses of certain deceased military personnel. Public Law 97-377, Section 156, specifically provides that the VA shall pay benefits under the provisions of this section to a person who is the surviving spouse of a veteran who died on active duty prior to August 13, 1981, and who has in her care a child of such veteran who has attained 16 years of age but not 18 years of age and is entitled to a child's insurance benefit for such month, under the provisions of the Social Security Act. Under Section 156(b)(1), REPS benefits are also payable to a child of a former member of the Armed Forces who died on active duty before August 13, 1981, or who died from a service-connected disability incurred or aggravated before August 13, 1981, whose age is between eighteen and twenty-two, who is a full-time student at a postsecondary school, college or university, and who is not entitled to a child's insurance benefit under the Social Security Act or the Omnibus Budget Reconciliation Act of 1981. In December 1993, the RO received a completed VA Form 21-8924, Application for Benefits Under the Provisions of Section 156, Public Law 97-377, submitted by the appellant. A January 1994 computer printout from the Social Security Administration indicated that the appellant's three children, [redacted], [redacted] and [redacted], ages 18, 20 and 22, respectively, had been in receipt of Social Security benefits as the veteran's surviving children. Letters from the RO dated in January and April 1994 informed the appellant that regulations concerning retroactive payment of REPS benefits were currently under litigation. In January 1995, the RO informed the appellant that a court decision was made on the issue of retroactive benefits and the RO was waiting for instructions as to how to proceed in the proper payment of any such benefits. In February 1995, the RO informed the appellant that the Federal Circuit ruled favorably regarding the issue of retroactive REPS benefits. The RO requested that the appellant complete the enclosed VA Form 21-8941 to report her wages for the years 1991- 1993. Later that month, the appellant submitted the requested information and indicated that her gross earnings were $9,086.00 for 199 1; $9,708.00 for 1992; and $9,913.67 for 1993; she also noted that these earnings were solely VA and/or Social Security benefits. A March 1995 printout from the Social Security Administration listed the Primary Insured Amount (PIA) for the veteran and the Family Maximum Benefit (FMAX) for relevant time periods as follows: DATE PIA FMAX 06/01/81393.60678.60 01/01/91$564.90$974.80 12/01/91$585.80$1010.80 12/01/92$603.30$1041.10 12/01/93$618.90$1068.10 Later that same month, the RO awarded the appellant retroactive REPS benefits from September 1, 199 1, the month that the appellant's youngest son, [redacted], turned 16, until September 1, 1993, the month that [redacted] turned 18. Based on the veteran's earning history and family maximum benefits as calculated and provided by the Social Security Administration, in addition to the appellant's reported earnings, the RO indicated that the appellant was eligible for retroactive benefits in the following amounts: EFFECTIVERATEREASON FOR CHANGE 09/01/91$243ENTITLEMENT BEGINS 12/01/91$252LEGISLATIVE CHANGE 12/01/92$260LEGISLATIVE CHANGE 06/01/93$347ANOTHER PAYEE NO LONGER ENTITLED 09/01/93$0 CHILD REACHES AGE 18 As noted,, the initial monthly benefit was $243 a month from September 1, 199 1. Based on legislative changes on December 1, 1991, and December 1, 1992, the amount of the appellant's monthly retroactive award was increased to $252 and $260, respectively. On June 1, 1993, the appellant's retroactive award was increased because one of her children was no longer eligible for benefits. On September 1, 1993, the appellant was no longer eligible for retroactive REPS benefits as [redacted], her youngest child, reached the age of 18. In April 1995, the appellant filed a notice of disagreement in which she indicated that the amount of retroactive REPS benefits paid to her were less than she was due. In a June 1995 Statement of the Case, the RO explained that monthly rates for REPS benefits were computed from information in the veteran's Social Security record as of August 1981. The RO indicated that benefits were awarded to the appellant based on four family members; cost of living adjustments were made on December 1, 1991, and December 1, 1992; and the appellant's REPS benefit was increased on June 1, 1993, when one of the family members was no longer entitled to benefits. According to the RO, based on the information provided by Social Security, the amount of payment made to the claimant was correct. Under the provisions of 38 C.F.R. 3.812, a basic entitlement rate will be computed for each eligible REPS claimant using data provided by the Social Security Administration. This basic entitlement rate is then used to compute the monthly payment rate. 38 C.F.R. 3.812(a)(2) (1996). However, relevant Social Security regulations indicate that the highest monthly benefit amount that the claimant qualifies for may not be the amount that the claimant is actually paid each month. In this regard, a maximum amount is set for each insured person's earnings record that limits the total benefits payable on that record. If the claimant is entitled to benefits as the insured's dependent or survivor, benefits may be reduced to keep the total benefits payable to the insured's family within these limits. 20 C.F.R. 404.304, 404.403 (1988). If a reduction of monthly benefits is required under the provisions of 20 C.F.R. 404.403, the monthly benefit amount of each of the persons entitled to monthly benefits on the same earnings record is proportionately reduced so that the total benefits that can be paid in 1 month does not exceed the maximum family benefit. 20 U.S.C.A. 404.404 (1988). The REPS monthly benefit is the lesser of 75 percent of the REPS Primary Insurance Amount or the claimant's proportionate share of the REPS Family Maximum. Essentially, to determine the proper amount of the award, it must be ascertained what the SSA PIA and Family Maximum in effect for August 1981 were if the wage earner died before August 1981. Then, the SSA PIA and Family Maximum, obtained above, are increased by the percentage amount of any legislative increases occurring on or after the effective date of the SSA PIA and Family Maximum, i.e., August 1981 or the month of wage earner's death, and before the first month of entitlement; if the calculation is for a surviving spouse, dependency and indemnity compensation (DIC) legislative increases are used, but if the calculation is for a student, Chapter 35 legislative increases are used. The amounts obtained are the REPS PIA and the REPS Family Maximum for a surviving spouse or student claimant. However, there are special factors affecting payment in the form of certain offsets and deductions. The REPS benefit payable is subject to reduction based on wages and self-employment earnings. Further, when taking award action, the existence of any other potential claimant who appears to have entitlement to either REPS or SSA benefits must be considered. If dependency information of record indicates there is a potential claimant, the award is computed as if the potential claimant were to be awarded benefits and at the expiration of the period of entitlement to retroactive payments for the potential claimant, an amended award is processed to pay any retroactive amounts due to any claimants for whom benefits were previously withheld. The withholding stays in effect until either the potential claimant files an application or that potential claimant's retroactive period of eligibility expires. In the instant case, the appellant was eligible for retroactive REPS benefits for the period September 1, 1991, through September 1, 1993, based on the veteran's earnings record. During this same rime period, the appellant's three children were eligible for benefits based on the same earnings record. As noted above, Social Security regulations establish a maximum family benefit which cannot be exceeded. In this regard, the maximum family benefit for the relevant time periods was $974.80 from January 1, 199 1; $1010.80 from December 1, 1991; $1041.10 from December 1, 1992; and $1068.10 from December 1, 1993. As four persons were eligible for benefits on the same earnings record during the same time period, the appellant was entitled to receive one-quarter (1/4) of the maximum family benefit. However, the Board notes that on June 1, 1993, one of the appellant's children became ineligible for such benefits. Accordingly, the appellant was entitled to receive one-third (1/3) of the maximum family benefit from that date. Based on the foregoing, the Board finds that the retroactive REPS payment in the amount of $6,354.00 made to the claimant for the period September 1, 1991 to September 1, 1993, was proper. ORDER The appeal is denied. S. L. KENNEDY Member, Board of Veterans' Appeals 38 U.S.C.A. 7102 (West Supp. 1997) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.