Citation Nr: 0426876 Decision Date: 09/27/04 Archive Date: 10/06/04 DOCKET NO. 03-24 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether the appellant's countable income exceeds income limitations for the purpose of entitlement to payment of VA improved death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Counsel INTRODUCTION The appellant is the wife of a deceased veteran, who served on active duty from June 1954 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an March 2000 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In March 2004, the appellant testified before the undersigned at a Travel Board hearing at the RO. In March 2004, the appellant submitted (along with supporting materials) what appears to a claim to reopen a claim for entitlement to dependency and indemnity compensation (DIC). This matter has not been addressed by the RO, and is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran died October [redacted], 1998. 2. The maximum countable income a surviving spouse, alone, could receive during any year during the appellate period and still be eligible for improved death pension benefits is $6, 634 (effective December 1, 2003). 3. The appellant's countable income did not fall below $6, 634 for any year since she filed her claim for death pension benefits. CONCLUSION OF LAW The appellant's countable income exceeds income limitations for entitlement to improved death pension benefits. 38 U.S.C.A. §§ 1503, 1541, 5107 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters On November 9, 2000, the President signed into law the Veteran's Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107. Regulations implementing the VCAA are published at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. The Board finds that the mandates of the VCAA are met. First, VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The June 2003 statement of the case (SOC) advised the appellant of the laws and regulations pertaining to her claim of entitlement to death pension benefits. It informed her of the evidence of record and explained the reasons and bases for the denial of her claim. She was specifically advised that she was not entitled to payment of death pension benefits because her countable income exceeded the maximum annual income for improved death pension benefits for a surviving spouse without child. Letters to the appellant and/or her advocate(s) advised of the income limitation amount. The June 2003 SOC made it clear to the appellant that in order to prevail on her claim she needed to present evidence that showed her countable income did not exceed the maximum annual income for improved death pension benefits for a surviving spouse without child. Regarding timing of notice, while the notice did not precede the initial adjudication in this matter, it was prior to certification of the claim to the Board. (And notice prior to the initial determination obviously would not have been possible, as that decision preceded enactment of the VCAA). The RO has obtained financial information regarding the veteran's income, medical expenses and terminal payouts with regard to the veteran's death in 1998. In November 2000, in August 2003, and in March 2004, the appellant provided clarifying information concerning her income. In an August 2003 statement, she indicated that she had no further evidence to submit. Notably also, the critical facts in this matter (i.e., that the maximum allowable countable income for any year under consideration herein was $6, 634 and that the appellant's income did not fall below that amount for any year in question) are not in dispute. The law and not the evidence is dispositive in this matter, and no amount of evidentiary development would alter the determination. Hence, the appellant is not prejudiced by the Board's proceeding with appellate review. Factual Background The veteran died October [redacted], 1998. In November 1998, VA received a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse. The appellant identified herself as the surviving spouse and did not mention any dependent children. She noted that she had been receiving Social Security Administration (SSA) benefits based on her own employment since July 1993, that total monthly benefits were presently $550.00, and that she expected the SSA benefits to increase as a result of the veteran's death. She indicated that her expected gross annual income would be $14,000.00 in earnings and $21,000.00 in life insurance. She itemized deductible expenses paid in October 1998, which pertain to the veteran's death as follows: $7,134.40 for funeral expenses; $1,650.00 for cemetery plot; and $50.00 for legal probate. In March 2000, the RO determined that the appellant's income ($20,600.00), less deductible amounts for last medical expenses and last expenses associated with the veteran's death, exceeded the maximum income ($6,026.00 for 1999) allowed by law for receiving improved death pension benefits. The appellant's 1999 Federal Income Tax Return, filing status single, indicates that her total pensions and annuities amounted to $13,685.00 for that calendar year. No amount was listed in the box for SSA benefits. She reported $4,000.00 in gambling winnings. In her itemized deductions she reported $546.00 in unreimbursed medical expenses. In a statement received in November 2000, the appellant indicated that her annual income was $15,672.00 ($1306.00 per month x 12 months). She also reported paying $4,000.00 in taxes, $1,200.00 in water/sewer bills, and $7,200.00 in mortgage payments. The appellant stated that this left her living on only $3,272.00 a year. In an August 2003 statement accepted in lieu of a VA Form 9, the appellant indicated that she was currently living on the $1,405.00 she received monthly in SSA benefits. At her March 2004 hearing, the appellant testified that her monthly income from SSA benefits was $1,428.00. She also indicated that she had no unreimbursed medical expenses to report. In March 2004, the RO received a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse. She noted that she had been receiving SSA benefits based on her own employment since 1993, and that total monthly benefits are $1,494.60. She listed the same deductible expenses as noted on the 1998 VA Form 21-534 application, with the addition of $2,145 paid in February 1999 for a memorial headstone. Death Pension Benefits - Law and Analysis Improved pension awarded pursuant to Public Law 95-588 is a monthly benefit payable by VA to a surviving spouse and children of the veteran. Specifically, the law provides that the Secretary shall pay to the surviving spouse of each veteran who served for ninety (90) days or more during a period of war or who at the time of death was receiving or entitled to receive compensation or retirement pay for a service-connected disability, pension at the rate prescribed by law and reduced by the surviving spouse's annual income. 38 U.S.C.A. §§ 101(9), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23. Death pension benefits are based on income. Payments of these pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C.A. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.24. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); 38 C.F.R. § 3.271(a). Social Security benefits are not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. Medical expenses in excess of five percent of the maximum income rate allowable, which have been paid, may be excluded from an individual's income for the same 12- month annualization period, to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). Burial expenses paid by a surviving spouse during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant's advantage. However, any such expenses paid subsequent to death but prior to date of entitlement (i.e. the effective date) are not deductible. 38 C.F.R. § 3.272(h). The rates of death pension benefits are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. The rates for the pertinent years are as follows: Effective December 1, 1997, the maximum allowable rate for a surviving spouse with no children was $5,808. See M21-1, part I, Appendix B, (change 27) (March 11, 1998). Effective December 1, 1998, the maximum allowable rate for a surviving spouse with no children was $5,884. See M21-1, part I, Appendix B, (change 31) (September 27, 1999). Effective December 1, 1999, the maximum allowable rate for a surviving spouse with no children was $6,026. See M21-1, part I, Appendix B, (change 32) (August 22, 2000). Effective December 1, 2000, the maximum allowable rate for a surviving spouse with no children was $6,237. See M21-1, part I, Appendix B, (change 35) (August 31, 2001). Effective December 1, 2001, the maximum allowable rate for a surviving spouse with no children was $6,407. See M21-1, part I, Appendix B, (change 41) (November 4, 2002). Effective December 1, 2002, the maximum allowable rate for a surviving spouse with no children was $6,497. See M21-1, part I, Appendix B, (change 46). Effective December 1, 2003, the maximum allowable rate for a surviving spouse with no children was $6,634. See M21-1, part I, Appendix B. The critical facts in this case are relatively straight- forward, and are not in dispute. The most income a surviving spouse (without dependent children) could have during any year during the appellate period and still be entitled to death pension benefits was $6, 634. The record shows (and she does not dispute) that in every year under consideration, from when she filed her claim through 2003, the appellant's income, any less permitted exclusions, considerably exceeded that amount. The appellant argues that she should nonetheless be found entitled to pension benefits as her income is inadequate for her support. The Board is bound by the income limitations, which have the force of published regulation, and does not have the authority to disregard the established income limitations. The law is dispositive, and the claim must be denied. ORDER As the appellant's income is excessive, entitlement to improved death pension benefits is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2