Citation Nr: 1122633	
Decision Date: 06/10/11    Archive Date: 06/20/11

DOCKET NO.  06-20 372	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to non-service-connected death pension benefits.

(The issue of entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death, the provisions of 38 U.S.C.A. § 1151, and the provisions of 38 U.S.C.A. § 1318 is addressed in a separate decision.)


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Hudson, Counsel


INTRODUCTION

The Veteran had active service from November 1972 to February 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) notification letter of September 2004, which informed the appellant that her claim for death pension was denied due to excess income.  The appellant appeared at a Travel Board hearing in May 2007, before a Veterans Law Judge who subsequently retired.  The appellant did not respond to a letter affording her the opportunity for another hearing.  The appeal was remanded in April 2009 and May 2010 for additional development.


FINDING OF FACT

The appellant's family income has exceeded the maximum countable income for death pension for a surviving spouse with dependent children throughout the appeal period.  



CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected death pension benefits are not met.  38 U.S.C.A. §§ 1541, 1543 (West 2002); 38 C.F.R. § 3.23, 3.271, 3.272 (2010). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)), imposes obligations on VA in terms of its duties to notify and assist claimants.  

In a letter dated in June 2009, the RO notified the appellant of the information necessary to substantiate the claim on appeal, and of her and VA's respective obligations for obtaining specified different types of evidence.  She was told that that entitlement to death pension required that the Veteran have specified wartime service, and that the claimant's income and net worth could not exceed certain requirements.  She was provided with information regarding effective dates.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Although the letter was not sent prior to the initial determination, subsequently, the claim was readjudicated, and a supplemental statement of the case was provided in November 2009, thus correcting the timing defect.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  

With respect to VA's duty to assist, the VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010).  The requisite wartime service has been established, and the appellant has provided copies of Social Security Administration (SSA) notifications of the benefits for herself and her children.  She has not identified any other potential sources of relevant information or evidence.  There is no indication of the existence of any other potentially relevant information or evidence which has not been obtained.    

Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Entitlement to Death Pension

The appellant is the surviving spouse of a veteran who had qualifying wartime service; as such, she may be entitled to a rate of pension set by law, reduced by the amount of her countable income.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.  

The appellant contends that she is entitled to VA death pension benefits, based on the Veteran's service.  She feels that, as his surviving spouse, she is entitled to death pension.  Unlike, however, entitlement to DIC, which is the subject of a separate decision, death pension is an income-based benefit, for low income qualifying survivors.  

The maximum rate of death pension benefits that may be paid is set by law.  An otherwise qualifying claimant will be paid up to the maximum rate, reduced by the amount of her countable family income.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.  In other words, any countable income of the appellant will reduce the pension benefits, dollar for dollar, by the amount of the income.  Thus, if the appellant's annual family income exceeds the maximum payable rate, the entire amount is offset, and the appellant is not entitled to any death pension benefits.  If the family income is less than the maximum rate, the appellant would be entitled to the difference between the income and maximum rate.  

In determining income for purposes of entitlement to death pension, payments of any kind from any source are counted as income during the 12-month period in which received unless specifically excluded under 38 C.F.R. § 3.272.  38 U.S.C.A. § 1503; 38 C.F.R. § 3.271.  The appellant states that her total family income is derived from Social Security Administration (SSA) benefits.  She has six children who qualified, at the time of his death, as his "children," for VA dependency purposes.  In this regard, one of the children is the child of the Veteran and the appellant.  The other five children are the appellant's children who were members of the Veteran's household at the time of the Veteran's death.  See 38 C.F.R. §§ 3.57(b), 3.210(d) (2010).  

There is also evidence that the appellant received a sum of $50 per month in child support for her five eldest children, apparently based on $10 per month per child.  Even without counting this, however, the appellant's undisputed family SSA income has exceeded the maximum rate throughout the appeal period.  

In this regard, the maximum annual rate for an appellant with six children through November 2002 was $16,539.  The appellant states that her family income during 2002 was only $11,703.  In counting income, however, the period for consideration does not begin until, after the Veteran's death.  In counting the income for the remaining period of 2002, the income received during this period is offset against the prorated maximum rate.  In essence, what this means is that the monthly income is offset against maximum rate that could be paid monthly (i.e., the maximum rate divided by 12; in this case, $1,378).  At this time, the appellant and her youngest daughter were each receiving $479 per month, and the other five children were each receiving $129 per month, for a total of $1,603 per month, which exceeds the maximum rate.  

During the succeeding years, the appellant's family SSA income has continued to exceed the maximum rate.  In this regard, as a child reaches the age of 18, for SSA purposes, apparently, all or part of that child's income is redistributed among the remaining minor children.  In contrast, for VA purposes, when the child turns 18, the additional amount for that dependent child is lost.  (An exception exists if the child is pursuing an approved educational program, which has not been claimed in this case.)  

Moreover, by law, the cost of living adjustments for VA death pension are adjusted each year by the same percentage as SSA benefits.  38 U.S.C.A. § 1541.  Because of this, the appellant's SSA benefits will likely continue to exceed the maximum rate for death pension.  When the appellant's youngest child (i.e., the child of the appellant and the Veteran) reaches 18, however, she may wish to contact VA to see if her income is below the maximum rate.  In that case, or based on substantial paid, unreimbursed, medical expenses (most of which may be deducted from income), or both, she is free to reopen her claim.  

Thus, based on the evidence of record, the appellant's family income has been above the maximum allowable for death pension purposes throughout the appeal period.  In these circumstances, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to nonservice-connected death pension benefits is denied.




____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs