Citation Nr: 0630890	
Decision Date: 10/02/06    Archive Date: 10/10/06

DOCKET NO.  05-16 361	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUE

Entitlement to Department of Veterans Affairs (VA) death 
pension benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

M. J. O'Mara, Associate Counsel


INTRODUCTION

The veteran had active military service from August 1940 to 
December 1944.  The appellant is the veteran's surviving 
spouse.

This matter comes before the Board of Veterans' Appeals 
(Board) from a September 2004 Administrative Decision by the 
Columbia, South Carolina Regional Office (RO) of VA, which 
denied the appellant entitlement to death pension benefits.

The appellant testified before the undersigned Acting 
Veterans Law Judge at a travel board hearing at the RO in 
July 2006.  A transcript of the hearing is of record.  


FINDINGS OF FACT

1.  The appellant does not have any children according to VA 
law and regulations.

2.  The appellant's countable income for 2004, 2005, and 2006 
exceeds the maximum annual income for improved death pension 
benefits for a surviving spouse without a child.





CONCLUSION OF LAW

The income requirements for entitlement to improved pension 
benefits are not met.  38 U.S.C.A. §§ 1503, 1541, 5107 (West 
2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) is 
applicable to this appeal.  To implement the provisions of 
the law, the VA promulgated regulations codified at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a)).  The Act and 
implementing regulations provide that VA will assist a 
claimant in obtaining evidence necessary to substantiate a 
claim but is not required to provide assistance to a claimant 
if there is no reasonable possibility that such assistance 
would aid in substantiating the claim.  It also includes new 
notification provisions. 

Specifically, the VCAA and its implementing regulations 
include, upon the submission of a substantially complete 
application for benefits, an enhanced duty on the part of VA 
to notify a claimant of the information and evidence needed 
to substantiate a claim, as well as the duty to notify the 
claimant what evidence will be obtained by whom.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define 
the obligation of VA with respect to its duty to assist a 
claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 
C.F.R. § 3.159(c).

In this case, the appellant has been notified of the reasons 
for the denial of her claim, and has been given notice of the 
laws and regulations governing the claim, by the September 
2004 letter from the RO denying her claim and the statement 
of the case issued in March 2005.  In addition, the appellant 
was afforded a travel board hearing during which she offered 
testimony.  She also submitted a Medical Expense Report and 
Eligibility Verification Report to show her income and 
expenses.  The Board finds that these actions are sufficient 
to satisfy any duties to notify and assist owed the 
appellant.

In any event, as will be explained below, the claim for death 
pension benefits lacks legal merit.  See Sabonis v. Brown, 6 
Vet. App. 426 (1994) [where the law and not the evidence is 
dispositive, the claim must be denied because of a lack of 
entitlement under the law].  VCAA notice is therefore not 
required for reasons stated in the paragraph immediately 
following.

In Manning v. Principi, 16 Vet. App. 534 (2002), citing 
Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001), the 
United States Court of Appeals for Veterans Claims held that 
the VCAA has no effect on an appeal where the law, and not 
the underlying facts or development of the facts, is 
dispositive of the matter.  Similarly, VA's General Counsel 
held that VA is not required to provide notice of the 
information and evidence necessary to substantiate a claim, 
or to assist the veteran in developing evidence to 
substantiate a claim where that claim cannot be substantiated 
because there is no legal basis for the claim or because 
undisputed facts render the claimant ineligible for the 
claimed benefit.  VAOGCPREC 5-2004 (June 23, 2004).  See also 
Mason v. Principi, 16 Vet. App. 129, 132 (2002) [VCAA not 
applicable "because the law as mandated by statute and not 
the evidence is dispositive of the claim"].  Hence, the Board 
finds that all development and assistance as required has 
been conducted and will proceed to adjudicate the appellant's 
claim.


Laws and Regulations

The surviving spouse of a veteran who met the wartime service 
requirements will be paid the maximum rate of pension, 
reduced by the amount of her countable income.  38 U.S.C.A. § 
1541 (West 2002); 38 C.F.R. §§ 3.23, 3.273 (2006).

Payments of any kind from any source (for example, life 
insurance proceeds) shall be counted as income during the 12-
month annualization period in which received, unless 
specifically excluded.  38 C.F.R. § 3.271 (2006).  Social 
Security benefits are not specifically excluded under 38 
C.F.R. § 3.272 (2006).  Such income is therefore included as 
countable income.

Any amounts paid by an appellant for the veteran's just debts 
and expenses of last illness and burial are to be deducted 
from her countable income during the applicable period.  38 
U.S.C.A. § 1503(a) (West 2002); 38 C.F.R. § 3.272(h) (2006).

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 U.S.C.A. § 1503(a)(8) (West 2002); 38 C.F.R. § 
3.272(g)(1)(iii) (2006).

For the purpose of determining initial entitlement, the 
monthly rate of pension shall be computed by reducing the 
applicable maximum pension rate by the countable income on 
the effective date of entitlement and dividing the remainder 
by 12.  38 C.F.R. § 3.273(a) (2006).  Nonrecurring income 
(income received on a one-time basis) will be counted, for 
pension purposes, for a full 12-month annualization period 
following receipt of the income.  38 C.F.R. § 3.271(c) 
(2006).

The effective date of an award of death pension is the first 
day of the month in which the veteran's death occurred if the 
claim is received within 45 days after the date of death; 
otherwise, the date of receipt of claim.  38 C.F.R. § 
3.400(c)(3)(ii) (2006).  Payment of monetary benefits will 
commence the month following the effective date of the award.  
38 C.F.R. § 3.31 (2006).

Basic entitlement to such pension exists if, among other 
things, the appellant's income is not in excess of the 
maximum annual pension rate (MAPR) specified in 38 C.F.R. § 
3.23 (2006).  38 U.S.C.A. § 1521(a) (West 2002), (b); 38 
C.F.R. § 3.3(a)(3) (2006).  The MAPR is published in Appendix 
B of VA Manual M21-1 (M21-1) and is to be given the same 
force and effect as published in VA regulations.  38 C.F.R. § 
3.21 (2006).  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, (change 49) (October 
4, 2004).  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.  Effective December 1, 2005, the 
maximum allowable rate for a surviving spouse with no 
children was $7,094.  See M21-1, part I, Appendix B.

The term "child" means an unmarried person who is a 
legitimate child, a child legally adopted before the age of 
18 years, a stepchild who acquired that status before the age 
of 18 years and who is a member of the veteran's household or 
was a member of the veteran's household at the time of the 
veteran's death, or an illegitimate child.  38 U.S.C.A. § 
101(4) (West 2002); 38 C.F.R. § 3.57 (2006).



Analysis

The appellant filed a claim for death pension benefits.  She 
asserts that although her Social Security income is in excess 
of the MAPR, her medical expenses reduce her countable income 
to an amount less then the MAPR.  Further, she asserts that 
she has one dependent.

Regarding the issue of whether the appellant has a dependent, 
the Board notes that the appellant submitted a December 1995 
Custody Order from the State of South Carolina that awarded 
the veteran and the appellant custody of a minor child, T.S.  
It is noted that this Court Order was not an order for 
adoption of the minor child.  Hence, although the appellant 
has custody of T.S., it is not shown that he was legally 
adopted, neither is he a legitimate child, a stepchild, or an 
illegitimate child of the veteran.  38 U.S.C.A. § 101(4) 
(West 2002); 38 C.F.R. § 3.57 (2006).  Therefore, for VA 
purposes, the appellant is not found to have any children, 
and her MAPR is based on her status as a surviving spouse 
with no children.

As stated above, effective December 1, 2003, the MAPR for a 
surviving spouse with no children was $6,634.  See M21-1, 
part I, Appendix B, (change 49) (October 4, 2004).  Effective 
December 1, 2004, the MAPR for a surviving spouse with no 
children was $6,814.  See M21-1, part I, Appendix B.  
Effective December 1, 2005, the MAPR for a surviving spouse 
with no children was $7,094.  See M21-1, part I, Appendix B.

The appellant has stated that her only source of income is 
Social Security, of which she received $1,065 per month in 
2004 and 2005, and decreased to $1,050 per month beginning 
January 2006.  Annualizing her monthly income, the Board 
finds that her annual income was $12,780 ($1,065 x 12 months) 
for 2004 and 2005, and $12,600 ($1,050 x 12 months) for 2006.  
These amounts are considered countable income for purposes of 
calculating eligibility to death pension benefits.  38 C.F.R. 
§ 3.271 (2006).

The appellant also asserts that she should have her medical 
expenses excluded from her countable income, according to 
38 C.F.R. § 3.272(g) (2006).  During her July 2006 Board 
hearing, the appellant testified that she paid approximately 
$300-$400 per month for unreimbursed medical expenses.  
However, in July 2006, the appellant submitted a Medical 
Expense Report that detailed medical expenses paid from 
January 2006 to June 2006, which exceed her estimated monthly 
medical expenses of $300-$400.  Therefore, giving the 
appellant the benefit of the doubt, the Board will use the 
higher amount of medical expenses to calculate exclusions 
from the appellant's countable income, which is the amount 
noted in her July 2006 Medical Expense Report.  The Board 
notes that the medical expenses reported in the July 2006 
Medical Expense Report total a rounded figure of $2,631 for 
the six-month period.  However, the Board also notes that the 
calculation for excluding medical expenses from countable 
income is based on expenses paid over a 12-month period.  
38 C.F.R. § 3.272(g) (2006).  Therefore, the Board has given 
the appellant the benefit of the doubt and assumed that the 
medical expenses paid from January to June 2006 are her 
normal medical expenses, of which she will incur the same 
medical expenses from July to December 2006.  Hence, to 
estimate the appellant's annual amount for medical expenses, 
the Board divided the $2,631 actual medical expenses paid 
over a six-month period by six to obtain the average monthly 
amount paid, which was $439 ($2,631/6 months).  Next the $439 
monthly amount was multiplied by 12 months to obtain an 
estimated annual figure, which was $5,268 ($439 x 12 months).

Medical expenses are excluded from countable income to the 
extent that the medical expenses exceed five percent of MAPR.  
38 U.S.C.A. § 5103(a)(8) (West 2002); 38 C.F.R. 
§ 3.272(g)(2)(iii) (2006).  Five percent of the appellant's 
MAPR for 2004 is $331 ($6,634 x 0.05).  Five percent of the 
MAPR effective December 1, 2004 is $340 ($6,814 x 0.05).  
Five percent of the MAPR effective December 1, 2005 is $354 
($7,094 x 0.05).

The Board notes that the appellant submitted medical expenses 
paid only for January to June 2006 and did not submit a 
record of medical expenses paid for 2004 or 2005.  However, 
for the purposes of this decision, and giving the appellant 
the benefit of the doubt, the Board accepts the appellant's 
noted annualized medical expenses paid in 2006 as an estimate 
of medical expenses paid for 2004 and 2005.  Therefore, as 
five percent of MAPR for 2004 has been found to be $331, the 
amount of the appellant's medical expenses in 2004 that 
exceed five percent of MAPR and are eligible to be excluded 
from countable income is $4,937 ($5,268 - $331).  Reducing 
the appellant's countable income by her medical expenses 
yields an adjusted countable income of $7,843 ($12,780 - 
$4,937) for 2004.

Five percent of MAPR effective December 1, 2004 has been 
found to be $340; therefore, the amount of the appellant's 
medical expenses in 2005 that exceed five percent of MAPR and 
are eligible to be excluded from countable income is $4,928 
($5,268 - $340).  Reducing the appellant's countable income 
by her medical expenses yields an adjusted countable income 
of $7,852 ($12,780 - $4,928) for 2005.

Finally, five percent of MAPR effective December 1, 2005 has 
been found to be $354; therefore, the amount of the 
appellant's medical expenses in 2006 that exceed five percent 
of MAPR and are eligible to be excluded from countable income 
is $4,914 ($5,268 - $354).  Reducing the appellant's 
countable income by her medical expenses yields an adjusted 
countable income of $7,686 ($12,600 - $4,914) for 2006.

After comparing the appellant's adjusted countable income, 
which was calculated by subtracting her eligible unreimbursed 
medical expenses from her Social Security income, to the 
MAPR, the Board notes that the adjusted countable income 
exceeds the MAPR for 2004, 2005, and 2006.

The Board notes that additional expenses paid by the 
appellant would be eligible to be excluded from her countable 
income.  Such expenses include expenses of the veteran's last 
illness, burials, and just debts.  38 C.F.R. § 3.272(h) 
(2006).  Review of the claims folder reveals that the 
veteran's funeral expenses totaled $5,644.  However, it is 
not noted on the Statement of Funeral Goods and Services 
Selected that the burial expenses were paid.  Further, in the 
appellant's June 2004 Application for Burial Expenses, she 
noted that the burial expenses had not been paid.  Therefore, 
the Board finds that the appellant has not paid the expenses 
for the veteran's burial and these expenses cannot be 
excluded from her countable income.

Finally, the Board does not find that the appellant is 
eligible for any other exclusions from her countable income 
as allowed in 38 C.F.R. § 3.272 (2006) as she has not alleged 
any other expenses or income that can be excluded.

Although recognizing the veteran's service, the Board is 
nonetheless bound by the laws enacted by Congress, the 
regulations of the Department, the instructions of the 
Secretary, and the precedent opinions of the chief legal 
officer of the Department. 38 U.S.C.A. § 7104(c) (West Supp. 
2005).  In this case, the law passed by Congress specifically 
prohibits the payment of VA death pension benefits to 
surviving spouses whose countable income exceeds the MAPR, as 
does the appellant's.  Therefore, the Board has no other 
alternative but to find that the appellant is not eligible 
for death pension benefits because her countable income 
exceeds the MAPR, even with the exclusion of her medical 
expenses.  38 C.F.R. §§ 3.3, 3.271, 3.272 (2006).  Hence, 
where the law is dispositive, the claim must be denied due to 
a lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 
430 (1994).


ORDER

Entitlement to Department of Veterans Affairs (VA) death 
pension benefits is denied.



____________________________________________
C. TRUEBA
Acting Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs