Citation Nr: 0728900 Decision Date: 09/14/07 Archive Date: 09/25/07 DOCKET NO. 04-20 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the appellant's countable income exceeds income limitations for entitlement to payment of VA improved death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The veteran served on active duty from April 1951 to April 1953. He died in April 2003, and the appellant is his surviving common law spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 determination by the Waco, Texas VA Regional Office (RO). FINDINGS OF FACT 1. The veteran died in April 2003; the RO received the appellant's claim for improved death pension benefits in May 2003. 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 $7, 329 (effective December 1, 2006). 3. The appellant's countable income did not fall below $7, 329 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 & Supp. 2006); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As will be discussed further below, the claim of entitlement to non-service-connected death pension is being denied as a matter of law. In VAOPGCPREC 5-2004 (2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. Mason v. Principi, 16 Vet. App. 129 (2002). In any event, the RO informed the appellant of the information and evidence needed to substantiate her claim in a May 2003 letter, an August 2003 letter notifying her of its decision, and the statement of the case (SOC) issued to her in April 2004. See 38 U.S.C.A. §§ 5102, 5103. In these documents the RO informed the appellant of the reasons her claim was denied and the evidence it had considered in denying the claim. The appellant has been given an opportunity to provide evidence and argument on the matter. II. Factual Background The veteran died in April 2003. In May 2003, the appellant filed a VA Form 21-534 (Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child), wherein she identified herself as the veteran's surviving spouse. She did not report that she had any dependent children. Her gross annual income from employment was reported to be $12,500. She itemized deductible expenses paid in April and May 2003, which pertain to the veteran's death as follows: $3,150 for funeral expenses; $316 for a car payment; and $432.48 for a mortgage payment. The evidence of record also shows that the appellant received death benefits of $255 from the Social Security Administration in May 2003. In June 2003, the appellant was awarded VA burial benefits in the amount of $975. In August 2003, the RO determined that the appellant's annual income exceeded the maximum income ($6,407 effective May 2003) allowed by law for receiving improved death pension benefits. Since August 2003, the appellant has reported no change in her countable income status. III. 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). The specific exclusions from countable income also include unreimbursed expenses of a veteran's last illness, burial, and just debts. 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, 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. 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. Effective December 1, 2006, the maximum allowable rate for a surviving spouse with no children is $7,329. See M21-1, part I, Appendix B. It is not disputed that, as of May 2003, the appellant was in receipt of earned income in the amount of $12,500 annually. In addition, in May 2003, she received a lump-sum payment of SSA benefits in the amount of $255. All of this income received from these sources is countable income under the improved pension program. The evidence of record also establishes that the appellant paid a total of $3,150 for the veteran's burial expenses (as reported by the appellant in May 2003); however, she was reimbursed by VA in the amount of $975 for some of these expenses in June 2003. Accordingly, the amount of $2,175 is deductible from her countable income for death pension purposes. 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 is $7,329. The record shows (and the appellant does not dispute) that in every year under consideration, i.e., from when she filed her claim through 2007, her income, less permitted exclusions, exceeded that amount. The Board realizes that the appellant's income from all sources may well fall short of providing for all her needs. However, the Board is bound by the noted income limitations, which have the force of regulation, and has no authority to disregard them. Furthermore, the Board lacks the legal authority to grant the benefit she seeks. The law is dispositive, and the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant is free to reapply for death pension benefits at any future time, especially if her countable income changes. However, in support of any new claim, she must again accurately report her current income and any deductible expenses. ORDER The appeal to establish that the appellant's income is not a bar to payment of improved death pension benefits is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs