Citation Nr: 1122227	
Decision Date: 06/08/11    Archive Date: 06/20/11

DOCKET NO.  10-46 318	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania


THE ISSUE

Entitlement to nonservice-connected death pension benefits for the period since February 1, 2010.  


REPRESENTATION

Appellant represented by:	Jewish War Veterans of the United States


ATTORNEY FOR THE BOARD

S. D. Regan, Counsel


INTRODUCTION

The Veteran had active service from December 1941 to October 1945.  He received various decorations evidencing combat including the Combat Infantry Badge.  The appellant seeks benefits as his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 RO decision that, in pertinent part, apparently discontinued payment of non-service-connected death pension benefits to the appellant, effective February 1, 2010.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The appellant's countable annual income for VA pension purposes exceeds the established income limit for receipt of payment for nonservice-connected death pension benefits for the period since February 1, 2010.  


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected death pension benefits for the period since February 1, 2010, have not been met.  38 U.S.C.A. §§ 1503, 1541, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272 (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Board has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim.  The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary 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).  Accordingly, there is no further need to discuss the VCAA duties.  The Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim.  

Analysis

Death pension benefits are generally available for surviving spouses, as a result of the veteran's nonservice-connected death.  38 U.S.C.A. § 1541(a) (West 2002).  An appellant is entitled to such benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if the veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the claimant meets specific income and net worth requirements.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4).

A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of countable income.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.  In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded.  38 U.S.C.A. § 1503; 38 C.F.R. § 3.271.  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.  38 U.S.C.A. § 1503(a); 38 C.F.R. § 3.271(a).  Exclusions from income include the expenses of the veteran's last illness and burial and for the veteran's just debts, debts not incurred to secure real or personal property, if paid by the appellant.  38 C.F.R. § 3.272(h).  Such expenses may be deducted only for the 12-month annualization period in which they were paid.  38 C.F.R. § 3.272(h).  Exclusions from income do not include Social Security disability benefits.  38 C.F.R. § 3.272.  That 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 rates of death pension benefits (Maximum Annual Pension Rate (MAPR)) 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 Veteran in this case had active service from December 1941 to October 1945.  He received various decorations evidencing combat including the Combat Infantry Badge.  The Veteran died in January 2009.  Thus, the rate of nonservice-connected death pension benefits payable to the appellant depends upon her specific income and net worth.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4).

The appellant filed her original claim for nonservice-connected death pension benefits in March 2009.  In an October 2009 decision, the RO granted nonservice-connected death pension for the period from February 1, 2009 to January 31, 2010.  The RO also determined that for the period since February 1, 2010, the appellant's income exceeded the allowable limit for the award of nonservice-connected death pension benefits.  

The Board notes that the appellant received nonservice-connected death pension benefits for the period prior to February 1, 2010.  Therefore, the Board will solely address her entitlement to nonservice-connected death pension benefits for the period since February 1, 2010.  The Board observes that the appellant has submitted numerous statements as to her income and expenses for the prior to February 1, 2010.  The Board notes, however, that the relevant information in this matter solely concerns the period subsequent to February 1, 2010, and the Board therefore will not further address the information the appellant submitted pertaining to her income and expenses for the period prior to February 1, 2010.  

In a January 2010 notice, the RO indicated that a preliminary review of the appellant's claim revealed that her award should be terminated effective February 1, 2010 because, as of that date, her income exceeded the MARP for a widow without dependents.  The RO indicated that they counted $1,156.00 in medical expenses and $12,056.00 in burial expenses.  The RO noted that the medical expense amount was based on Medicare premiums deducted from the appellant's monthly SSA benefits as paid when her award was started on February 1, 2009.  The RO reported that burial expenses were used to reduce the amount of the appellant's countable income, but could only be counted for the period of one year, February 1, 2009 to February 1, 2010.  

An April 2010 RO report of record, apparently based on an April 2010 phone call with the appellant, indicated that for the period from February 1, 2010 to December 31, 2010, she reported supplemental medical insurance benefits of $1,061.50; private medical insurance premiums of $1,848.00; and additional private medical insurance premiums of $321.50, for a total of $3, 230.70.  

A June 2010 RO decision (issued in a statement of the case) noted that the appellant's nonservice-connected pension benefits were stopped as of February 1, 2010 because her income exceeded the MARP for a widow without dependents.  The RO explained that the appellant met the criteria prior to February 1, 2010, based on both the medical expenses and the burial expenses.  The RO noted that because the burial expenses could only be considered once for the period from February 1, 2009 to February 1, 2010, the appellant's income presently exceeded the MARP for a window without dependents.  The RO reported that in order to consider the appellant's expenses as projected for the year 2010, there must be ongoing monthly expenses such as private medical insurance, Medicare premiums, home health or nursing care, or monthly prescriptions.  

In her October 2010 VA Form 9, the appellant stated that she believed she was entitled to nonservice-connected death pension benefits because she had a very modest income which was based on SSA benefits and a small pension.  The appellant reported that she had large medical and dental expenses; insurance expenses; and household expenses.  The appellant indicated that her expenses exceeded her income and that she had to continually borrow money from relatives.  

The appellant reported, as to income, that she received monthly SSA benefits of $1,112.00, with a yearly total of $13,348.00.  She stated that she also received a Teamster's pension of $290.00, with a yearly total of $3, 3480.00.  

As to expenses, the appellant reported that her monthly renter's insurance costs were $67.00, with a yearly total of $802.00, and that her monthly life insurance costs were $3.00 with a yearly total of $41.00.  The appellant further reported that she had monthly dental expenses of $294.00, with a yearly total of $3,528.00, and monthly drug insurance costs of $29.00, with a yearly total of $348.00.  

The appellant indicated that her monthly health insurance costs were $185.00, with a yearly total of $2,220.00; her monthly Medicare insurance payments were $96.00, with a yearly total of $1,152.00; her monthly drug expenses were $38.00, with a yearly total of $458.00; and her monthly real estate taxes were $153.00, with a yearly total of $1,845.00.  The appellant also reported that her monthly condominium maintenance fees were $185.00, with a yearly total of $2,220.00; her monthly household help costs were $110.00, with a yearly total of $1320.00; her electric bill was $58.00, with a yearly total of $696; her monthly heating and cooking gas bill expenses were $18.00, with a yearly total of $216.00; her monthly cable television and telephone expenses were $98.00, with a yearly total of $1,176.00; and her monthly emergency cell phone expense was $38.00, with a yearly total of $456.00.  Other expenses noted by the appellant included monthly food expenses of $400.00, with a yearly total of $4,800.00; and monthly "miscellaneous" expenses of $200.00, with a yearly total of $2,400.00.  

The MAPR for a surviving spouse for a surviving spouse with no dependents, effective December 1, 2009, was $7,993.00.  The MAPR for a surviving spouse with no dependents, effective December 10, 2010, was also $7,993.00.  

To be deducted from countable income, medical expenses must have exceeded 5 percent of the yearly MAPR, or $397.00 in both 2009 and 2010.  

The appellant's recently reported unreimbursed medical expenses for the year 2010 totaled $7704.00.  These expenses consisted of monthly dental expenses of $294.00 ($294.00 X 12 = 3,528.00); monthly drug insurance costs of $29.00 ($29.00 X 12 = $348.00); monthly health insurance costs of $185.00 ($185.00 X 12 = 2,220.00); monthly Medicare payments of $96.00 ($96.00 X 12 = $1,152.00); and monthly drug expenses of $38.00 ($38.00 X 12 = $456.00).  

The other expenses reported by the appellant including renter's insurance costs; real estate taxes; condominium maintenance fees; household help costs; electric bills; heating and cooking gas bills; cable television and phone bills; emergency cell phone bills; food costs; and miscellaneous expenses, have not been included in determining her annual unreimbursed medical expenses, as they may not be classified as unreimbursed medical expenses.  

As the appellant's medical expenses exceeded 5 percent of the yearly MAPR's, the medical expenses may be deducted from her annual income.  The Board notes that the unreimbursed medical expenses reported pursuant to the April 2010 RO report of record, discussed above, are lower than the unreimbursed medical expenses reported by the appellant in her October 2010 VA Form 9.  Therefore, the Board will use the higher October 2010 medical expenses in determining the appellant's claim.  

The Board notes that even after deducting the $7,307.00 ($7,704 minus $397 = 7307.00) in medical expenses reported for 2010, the appellant's countable income exceeds the MAPR.  The appellant's recently reported annual income was $16,814.00 (SSA benefits of $1,112.00 X 12 = $13,334.00, plus a Teamster's pension of $290 X 12 = $3,480.00).  After deducting $7307.00 from $16,814 the total is $9,507.00, which exceeds the MAPR for both 2009 and 2010, respectively, of $7,993.00.  Therefore, the appellant is not entitled to nonservice-connected death pension benefits for the period since February 1, 2010.  The Board notes that the appellant has also reported interest income in the past which was not added to her income by the Board for the period since February 1, 2010.  The Board observes that any such income received after February 1, 2010, obviously would increase her annual income for that period.  

The Board reminds the appellant that the duty to assist is not a "one-way street."  If an appellant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The burden is on the appellant to demonstrate that her annual income is below the maximum allowable rate for receipt of death pension.  

As the available evidence shows that appellant's annual income exceeds the MAPR for the award of nonservice-connected death pension benefits for a surviving spouse with no dependents for the period since February 1, 2010, the claim of entitlement to nonservice-connected death pension benefits for the periods since February 1, 2010 must be denied due to excessive yearly income.  Similarly, although the appellant has not reported her financial information for 2011, given that her 2010 income exceeded the MAPR for both 2009 and 2010, respectively, it follows that her annuity income similarly exceeds the MAPR for 2011.  

The Board appreciates the severity of the appellant's financial status; however, there is no interpretation of the facts of this case which will support a legal basis for a favorable action with regard to the appellant's claim.  The appellant's countable income exceeds the MAPR for the period since February 1, 2010.  Thus, the application of the principle of reasonable doubt is not appropriate in this case.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

The claim of entitlement to nonservice-connected death pension benefits for the period since February 1, 2010, is denied. 



____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs