Citation Nr: 0508044 Decision Date: 03/18/05 Archive Date: 03/30/05 DOCKET NO. 03-11 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Counsel INTRODUCTION The appellant is the surviving spouse of the veteran who had active service from August to December 1978 and again from August 1990 to May 1991. He died on March [redacted], 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2005, the appellant testified at a videoconference hearing before the undersigned. On her claim, the appellant checked a box marked "NO" under the question: "Are you claiming that the cause of death was due to service?" In the space next to the box she added "I don't know". In her VA Form 9, she related that she was thwarted when she attempted to discuss a wrongful death claim based upon the veteran's Desert Storm service. As it is unclear whether she is seeking to pursue a claim of service connection for the cause of the veteran's death, this matter is referred to the RO for clarification and any appropriate action. FINDINGS OF FACT 1. The veteran died March [redacted], 2000. 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, 814 (effective December 1, 2004). 3. The appellant's countable income did not fall below $6, 814 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 (2004). REASONS AND BASES FOR FINDINGS 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 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. An October 2002 letter from VA, (issued prior to the RO determination on appeal), the December 2002 RO determination, and the April 2003 statement of the case (SOC) advised the appellant of the laws and regulations pertaining to her claim of entitlement to death pension benefits, informed her of the relative duties in claims development, and advised her how VA could assist her in developing her claim. Furthermore, they 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. These communications to the appellant and her representative advised of the income limitation amount. The April 2003 SOC made it clear to the appellant that in order to prevail in 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, initial notice did precede the RO adjudication in this matter, and subsequent notice was issued prior to certification of the claim to the Board. Furthermore, the appellant was asked in the October 2002 letter to submit or inform VA of any additional records that would assist in supporting the claim. No outstanding evidence has been identified. The RO has advised the appellant of the information and evidence necessary to support her claim and offered to assist her in obtaining additional evidence. The appellant has submitted a complete application for benefits, and has been afforded two hearings to discuss her claim. There is no indication that any additional information exists regarding the appellant's income and expenses, or that any further notification would be of any benefit at this time. Notably also, the critical facts in this matter (i.e., that the maximum allowable countable income for any year under consideration herein was $6,814 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. Thus, the Board finds that VA has satisfied the duty to assist the appellant. In the circumstances of this case, additional efforts to assist or notify her in accordance with the VCAA would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duty to inform and assist the appellant. Factual Background The veteran died March [redacted], 2000. In September 2002, VA received an incomplete VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse. The Form indicated that the appellant sought death pension benefits. VA returned the incomplete form to the appellant, with an October 2002 letter prompting her to complete the application and identify her income as well as any additional records she might need to support her claim. In November 2002, the appellant returned the completed form with a statement. She identified herself as the veteran's surviving spouse and did not mention any dependent children. She reported that her gross monthly income from the St. Joseph R. H. Center was $1,690 per month, or $20,280 per year. She indicated that the income for the 12 month period from the date of the veteran's death included a one-time $6,000 life insurance payment and that $3,000 of this was spent on funeral costs. No itemized deductible expenses were listed in the boxes provided on the form. In an attached statement, she reported medication costs of $278 per month. In December 2002, the RO determined that the appellant's income ($20,280.00), exceeded the maximum income ($6,407.00 for 2001) allowed by law for receiving improved death pension benefits. At a March 2003 RO hearing, the appellant testified that her annual income was approximately $20,000 a year. She was aware that VA denied her claim because her income exceeded the income cap for payment of death pension benefits. She indicated that she had no other evidence to present. At the February 2005 videoconference hearing before the undersigned, the appellant stated that while she understood her income was excessive, she was still in a financial bind due to her regular household expenses, medical bills and medication. She was informed that unreimbursed medical expenses are deductible from countable income, but that household expenses are not. 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(12), 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, 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. Effective December 1, 2004, the maximum allowable rate for a surviving spouse with no children was $6,814. See M21-1, part I, Appendix B. Thus, the most income a surviving spouse (without dependent children) could have in any year during the appellate period and still be entitled to receive death pension payments was $6, 814. The record shows (and the appellant does not dispute) that in every year under consideration, i.e., from when she filed her claim through 2004, her income, less permitted exclusions, considerably exceeded that amount. The appellant has an income of $20,280. Even deducting $3,000 for funeral expenses paid in the year following the veteran's death, and $3,336 (assuming the $278 reportedly paid per month for medications is an unreimbursed medical expense for that same year), the appellant's income for that year would still greatly exceed the maximum income allowed for a surviving spouse without dependent children. The appellant argues that she should nonetheless be entitled to pension payments as her income is inadequate for her support. However, the Board is bound by the noted income limitations, which have the force of regulation, and has no authority to disregard them. The law is dispositive, and the claim must be denied. ORDER As the appellant's income is excessive, the appeal to establish entitlement to improved death pension benefits is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs