Citation Nr: 1120830 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 05-15 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the appellant's income for calendar year 2009 is excessive for VA purposes for entitlement to death pension benefits with aid and attendance. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty from November 1943 to October 1948, to include during World War II. The Veteran passed away in May 2000 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a letter decision issued in March 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2010, the Board issued a decision on the matter. More specifically, the Board found that the appellant's income for the years extending from 2000 to 2007 was excessive for VA purposes for entitlement to death pension benefits. The Board further concluded that it did not have enough information in order to make a determination as to whether the appellant's income for the years 2008 and 2009 was excessive for VA purposes for entitlement to death pension benefits. Hence, that portion of the claim was returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., so that additional financial information could be obtained and included in the claims folder. A review of the evidence obtained as a result of the Board's March 2010 remand indicates that the appellant was awarded death pension benefits for 2008 after it was determined that her income for that year was not excessive. See May 2010 Supplemental Statement of the Case (SSOC). Therefore, this portion of the appellant's claim is no longer before the Board as the benefits have been granted in full. A further review shows that, based on information provided circa the end of 2008/early 2009, death pension benefits for 2009 were also awarded to the appellant. Nevertheless, in October 2009, the RO contacted the appellant and informed her that, after additional review of her projected expenses for 2009, her pension benefits were going to be stopped and that an overpayment of said benefits had occurred. A request for waiver of recoupment of the overpayment was subsequently processed and a waiver was granted to the appellant. After further review, it is the Board's determination that the remaining issue on appeal is best characterized as shown on the first page of this decision. Upon reviewing the development that has occurred since the March 2010 remand, the Board finds the agency of original jurisdiction (AOJ) has substantially complied with its remand instructions. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has stated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The record suggests that the AOJ obtained all of the appellant's pertinent financial records and has included those records in the claims folder for review. The AOJ then readjudicated the remaining issue on appeal and then issued a SSOC after reviewing the results of the information obtained. Based on the foregoing, the Board finds that the AOJ substantially complied with the mandates of the March 2010 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The appellant's annual income for 2009 does not exceed the maximum annual income for death pension benefits for a surviving spouse without children, and with aid and attendance. CONCLUSION OF LAW The criteria for entitlement to death pension benefits for 2009 have been met. 38 U.S.C.A. §§ 1541, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.15, 3.102, 3.159, 3.203 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that it has been determined by the Court that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to claims involving statutory interpretation. See Livesay v. Principi, 15 Vet. App. 165 (2001); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA does not affect matters on appeal when the issue is limited to statutory interpretation). Consequently, the provisions of the VCAA, as well as VA's implementing regulations, will not be addressed in this portion of the Board's decision. With respect to the notice provisions, the Board observes that a statement of the case along with supplemental statements of the case and various notice letters have notified the appellant of any type of evidence needed to substantiate her claim. Moreover, as the Board is granting the appellant's claim in full, no further action is required to comply with the VCAA and the implementing regulations. The record reflects that the Veteran, the appellant's spouse, passed away on May 10, 2000. Following the Veteran's death, the appellant submitted a claim for death benefits, to include a survivor's pension. Upon reviewing the evidence, the RO denied dependency and indemnity compensation (DIC) benefits. It did, however, award death pension benefits. The appellant was notified of this action in a letter issued by the RO in May 2000. The RO informed the appellant that the amount of pension paid was based on family income and a formula provided by law. The pension started on June 1, 2000, and the amount to be paid was determined to be $171.00 (US dollars) per month. The RO further informed the appellant that her entitlement would be reduced on June 1, 2001, due to a change in her projected income and expenses. In an August 2000 letter, the RO informed her that her benefits starting June 1, 2000, would be $196.00 (US dollars) per month. In March 2001, VA sent a letter to the appellant informing her that her VA death pension would be terminated because VA had received evidence showing that her income had changed. Specifically, the appellant was informed that, because her Social Security Administration (SSA) benefits were increased from $355.00 (US dollars) to $892.00 (US dollars) effective in May 2000, she was no longer eligible for benefits. She was further notified that the effective date of the reduction would be June 1, 2000. In other words, the appellant's entitlement to benefits were terminated on the basis that her gross yearly household income exceeded the legal limits set by Congress for a widow with no dependents. Following that notification, the appellant appealed to the Board. Subsequent to her appeal, the Board issued a decision on the merits of her claim in March 2010. In that action, the Board found that the appellant's income for 2000 to 2007 was excessive for VA purposes for entitlement to death pension benefits. As reported previously, the Board then remanded the issues involving calendar year 2008 and 2009. It was as a result of this action the appellant was awarded benefits in 2008 and 2009; however, the benefits for 2009 were later discontinued. It is the year 2009 that this appeal addresses. In general, the surviving spouse of a Veteran is entitled to receive nonservice-connected death pension benefits if the Veteran had qualifying service and the surviving spouse's meets the net worth requirements of 38 C.F.R. § 3.274 (2010) and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23 (2010). 38 U.S.C.A. § 1541(a) (West 2002); 38 C.F.R. § 3.3(b)(4) (2010). Under applicable criteria, payments of death 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 (West 2002); 38 C.F.R. §§ 3.3, 3.23 (2010). Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272 (2010). Unreimbursed medical expenses, which were paid within the twelve month annualization period regardless of when incurred, are excluded from annual countable income to the extent that the amount paid exceeds five (5) percent of the maximum annual rate payable. 38 C.F.R. § 3.262 (2010). Exclusions from countable income for the purpose of determining entitlement to pension also include amounts paid for a Veteran's just debts, expenses of last illness and burial, to the extent such burial expenses were not reimbursed by VA. 38 C.F.R. § 3.272 (2010). The maximum annual rates of improved pension are specified in 38 U.S.C.A. §§1521 and 1542, as increased from time to time under 38 U.S.C.A. § 5312. The rates of death pension benefits are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 MR (M21-1 MR), and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21 (2010). Effective June 1, 2009, the maximum allowable rate for death pension benefits with aid and attendance and no dependents for calendar year 2009 was $12,681.00 (US dollars). The appellant's countable income, which included her adjusted SSA benefits, was $14,076.00 (US dollars), which, on its own, exceeded the maximum allowable rate for the 12-month annualization period. However, as noted above, the appellant's countable income will be reduced when her medical expenses are deducted from the countable income, and it is this final amount that must be used in determining whether her income is excessive. The record indicates that, when the RO asked the appellant to estimate the amount of money that she would be paying in unreimbursed medical expenses, she reported that her estimate was $5,326.00 (US dollars). This estimate was made via the VA Form 21-0518, Improved Pension Eligibility Verification Report, dated May 2009. This estimate was then subtracted from her total income for 2009, or $14,076.00 (US dollars) minus $5,326.00 (US dollars) plus 5% of the maximum annual percentage rate (MAPR) or $397.00 (US dollars). This total is $9,148.00 (US dollars). The total amount is then subtracted from the death pension rate with aid attendance and divided by twelve months in order to obtain the amount that would be paid to the appellant on a monthly basis. Thus, $12,681.00 (US dollars) minus $9,148.00 (US dollars) equals $3,528.00 (US dollars) divided by 12 months equals $294.00 (US dollars). This is the amount that the appellant was deemed eligible to receive for calendar year 2009 when she estimated that her unreimbursed medical expenses would be $5,326.00 (US dollars). As such, the appellant was paid $294.00 (US dollars) for January through October 2009. Shortly before October 2009, the appellant informed the RO that her projected medical expenses for 2009 would not be $5,326.00 (US dollars) but would be an amount much less such that she might not be eligible for any monies for 2009. The claims folder shows that the appellant received $2,940.00 (US dollars) for death pension benefits with aid and attendance for the months extending from January to October 2009. The record further indicates that the appellant was informed by the RO that an overpayment had occurred, and that the amount of the overpayment was $2,940.00 (US dollars). She was then told that she could request a waiver of recoupment of these monies. Such a waiver request was made and the waiver subsequently granted. The appellant has continued her appeal on this matter contending that her financial status is not excessive and that her income, minus all of her medical expenses, does not disqualify her for death pension benefits. The claims folder contains three VA Form 21-8146, Medical Expense Reports, dated May 2009, August 2009, and again August 2009. The expenses reported, on those forms, were as follows: Purpose Amount Paid by Appellant Approximate Date of Payment Name of Provider Private medical insurance $96.00 1/1/2009 AARP Prescription Medicines $60.00 1/6/09 - 3/27/09 The Medicine Shoppe Dr. Co-pays $52.87 2/21/09 Dr. K. Sparacho Dr. Co-pays $22.05 2/16/09 Orthopedic Center Dr. Co-pays $59.96 3/6/09 Internal Medicine Specialist Dr. Co-pays $11.04 2/1/09 Dr. Janice Neal Hospital Co-pays $102.08 2/1/09 - 2/21/09 Decatur Hospital Total $404.00 Purpose Amount Paid by Appellant Approximate Date of Payment Name of Provider Prescription Medicines $78.00 Unknown The Medicine Shoppe Sitter Fees $1,300.00 Unknown Julie Terry Anesthesiology fees $23.06 8/10/09 River City Anesthesiology, PC Biopsy $23.01 8/10/09 Prime Path PC Laparoscopy Fees $170.73 8/10/09 Surgical Assn of NA Mileage $50.00 Unknown Travel for medical care AARP Drug $148.80 8/1/09 Unknown Prescription Medicines $197.27 Unknown The Medicine Shoppe Total $1,990.87 Per the VA Form 21-8146, Medical Expense Report, received by VA in March 2010, the expenses on that report are as follows: Purpose Amount Paid by Appellant Approximate Date of Payment Name of Provider Private hospital insurance $536.00 2009 Unknown (Possibly Medicare or AARP) Services Rendered $2,008.54 2009 Parkway Medical Hospital Prescription Medications $275.57 2009 Medicine Shoppe Doctor's Services $214.35 2009 Dr. Janice Neal Doctor's Services $18.00 2009 Dr. K. J. Sparacho Doctor's Services $59.96 2009 Previously Claimed Medical Transportation Costs $50.00 2009 Total $3,151.72 If the Board adds all of the nonrepeating, duplicative costs together, the final total for all medical expenses for 2009 is: $5446.63 (US dollars). [The Board has used the amount paid for the internal medicine specialist of $59.96 only one time in determining this expense]. If this amount [$5,446.63 (US dollars)] is subtracted from the appellant's income of $14,076.00 (US dollars), this equals $8,629.37 (US dollars) and then 5% of the maximum annual percentage rate (MAPR) or $397.00 (US dollars) is added to the amount. This total is $9,026.37 (US dollars). The amount is then subtracted from the death pension rate with aid attendance and divided by twelve months in order to obtain the amount that would be paid to the appellant per month. Thus, $12,681.00 (US dollars) minus $9,026.37 (US dollars) equals $3,654.63 (US dollars) divided by 12 months equals $304.55 (US dollars). This is the amount that the Board finds that the appellant was eligible to receive for calendar year 2009 when the Board uses the unreimbursed medical expenses reported to VA of $5,546.63 (US dollars). At this point, the Board specifically notes that it finds that the information provided by the appellant in the form of the various medical expense reports to be credible and probative, and the Board believes that the appellant has attempted to be truthful in her reporting of all of her expenses for calendar year 2009. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992). The record shows that the appellant has previously been paid $2,940.00 (US dollars). If the Board uses the amount that should have been paid to the appellant, after any adjustments, then the appellant is owed $3,654.63 (US dollars) minus $2,940.00 (US dollars) or $714.63 (US dollars) for the remaining portion of calendar year 2009. Because the appellant has not yet been paid this amount for calendar year 2009, the Board grants the appellant benefits in this amount. In other words, using the data collected by the RO and AMC, the Board finds that the appellant's income was not excessive for calendar year 2009 for the payment of death pension benefits, and her appeal is granted. As such, a review of the financial information provided by the appellant shows that her countable income for 2009 did not exceed the threshold amount for meeting the relevant eligibility requirements. Therefore, the appellant is entitled to improved death pension benefits for the year 2009. Since she has already been paid $2,940.00 (US dollars) for the period extending from January 2009 to October 2009, the amount owed the appellant for November 2009 and December 2009 is $714.63 (US dollars). The appellant's appeal is thus granted. ORDER Entitlement to death pension benefits with aid and attendance for calendar year 2009 is granted. ____________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs