Citation Nr: 1220193	
Decision Date: 06/08/12    Archive Date: 06/20/12

DOCKET NO.  09-11 013	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota

THE ISSUE

Entitlement to a nonservice-connected death pension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. L. Rippel




INTRODUCTION

The Veteran served on active duty from April 1969 to May 1983.  He died in September 2002.  The appellant is his surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 RO decision, which denied a claim for entitlement to a nonservice-connected death pension. 


FINDING OF FACT

The appellant's annual countable income exceeds the established income limits for VA pension purposes for receipt of payment for nonservice-connected death pension benefits. 


CONCLUSION OF LAW

The appellant's countable income precludes her from receiving death pension benefits.  38 U.S.C.A. §§ 1521, 5107 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA) 

With respect to the appellant's claim, as will be explained fully below, in the present case there is no legal basis upon which this benefit may be awarded.  As such, the appellant's claim must, regrettably, be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The provisions of VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). 

II. Analysis 

In September 2007, 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.  In February 2008 she submitted additional forms and argument to support an application for a nonservice-connected death pension.  In June 2008, the RO issued a decision notifying her that her claim for VA death pension benefits was denied because her countable income exceeded the maximum annual pension rate (MAPR). 

Parenthetically, the Board notes that the claim for service connection for cause of death was denied in a March 2011 rating decision.  

Death pension benefits are generally available for surviving spouses, as a result of the Veteran's non-service-connected death.  See 38 U.S.C.A. § 1541(a) (West 2002); 38 C.F.R. § 3.3(b)(4) (2011).  An appellant is entitled to these benefits if the Veteran served on active duty for 90 consecutive 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 appellant meets specific income and net worth requirements.  38 U.S.C.A. § 1541 (West 2002).  In computing the necessary active service, broken periods of service may be aggregated to total 90 days during one or more periods of war.  38 C.F.R. § 3.16 (2011). 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Here, the deceased Veteran has the required wartime service.  Although there has been some problem with verification of dates of beginning and terminations of prior marriages of the Veteran and appellant, the evidence of record generally reflects that appellant is his lawful surviving spouse.  

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  (West 2002); 38 C.F.R. § 3.23 (2011).  In determining income for this purpose, payments of any kind from any source, including salary, retirement or annuity payments, or similar income, which has been waived, are counted as income during the 12-month annualization period in which received unless specifically excluded.  38 U.S.C.A. § 1503 (West 2002); 38 C.F.R. § 3.271 (2011).  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) (2011).  Such expenses may be deducted only for the 12-month annualization period in which they were paid.  38 C.F.R. § 3.272(h) (2011).  Exclusions from income do not include Social Security Administration (SSA) disability benefits. 38 C.F.R. § 3.272  (2011).  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) (2011). 

The annual income of the surviving spouse includes her income and the annual income of each child of the Veteran in the custody of the surviving spouse to the extent that the child's income is reasonably available to or for the surviving spouse, unless in the judgment of VA, to do so would work a hardship on the surviving spouse.  38 C.F.R. § 3.23 (d)(5) (2011).  

The appellant reports that she has no dependent children.  No evidence suggests anything to the contrary. 

The maximum annual rates of improved pension payable under Pub. L. 95-588 (92 Stat. 2497 ) are set forth in 38 C.F.R. § 3.23 and § 3.24.  The monthly rates and annual income limitations applicable to this case are set forth in 38 C.F.R. § 3.24. 

The MAPR payable are published in tabular form in Appendix B of Veterans Benefits Administration  Manual M21-1 (M21-1), and are to be given the same force and effect as if published in the Code of Federal Regulations.  38 C.F.R. § 3.21 (2011). 

The maximum allowable rate for a surviving spouse with no dependents is $7,329, effective December 1, 2006; $7,498, effective December 1, 2007; $7,933, effective December 1, 2008; and $7,933, effective December 1, 2009.  See M21-1, part I, Appendix B.  The Board notes that no increase was made effective December 1, 2010. 

The Board notes that SSA disability and survivor benefits are not excludable from countable income, but welfare benefits, such as Supplemental Security Income (SSI), are excludable from countable income for purposes of improved pension.  See 38 C.F.R. § 3.272 (2011); VA ADJUDICATION PROCEDURE MANUAL (M21-MR), Part V.iii.1.I.58.b.  In this case, the evidence of record reflects that the appellant has been in receipt of SSA benefits that are not SSI.  Specifically, VA inquiry to SSA in conjunction with this claim disclosed that appellant was awarded non SSI benefits of $740.00 per month or as of July 2004.  She was paid 760.00 per month as of December 2004; 791.00 per month as of December 2005; 817.00 per month as of December 2006 and 836.00 per month as of December 2007.  

Appellant's countable income consists entirely of her Social Security payments.  In a VA Form 21-0518-1 Improved Pension Eligibility Verification Report (Surviving Spouse With No Children) received in February 2008, she reports monthly income of $836.00 from Social Security for an annual total of $10,032.00.  In an accompanying VA Form 21-8416, Medical Expense Report, she reported that she paid $243.21 to Sears Medical Association on several occasions in 2007, to include January 8, March 26 (2 payments), August 28 and December 20.  She reported that she paid $220.00 and $112.00 on undisclosed dates to America Pharmacy and 77.00 on an undisclosed date to Express Scripts Tricare.  

In June 2008, the RO sent the appellant a letter explaining that it denied her claim because her income exceeded the MAPR for the period in question.  As explained by the RO, medical expenses of $243.00 were considered but this did not lower her income below the allowable limit.  It explained that VA could only consider expenses that were more than $374.00, which is 5% of $7,498.00, the MAPR.  She was informed that she could reapply for death pension when her income drops or her medical expenses increase.  It explained that it could not consider $729.63 paid to Tricare because it could not include the payments reportedly paid in January, March and August since these were before her claim was filed in September 2007.  It could not consider the 332.00 paid to America Pharmacy or the $77.00 paid to Express Scripts because she did not note who these were for or when they were paid.  

The Veteran submitted additional information thereafter.  Medical Expense Reports received in March 2009 show unreimbursed medical expenses of $1,932.24 for the period from September 28, 2007, through September 30, 2008, and unreimbursed medical expenses of $1,109.14 for the period from January 1, 2008, to December 31, 2008.  This reduced her SSA income of $9,804.00 to $8,238.00 from October 1, 2007, but the income still exceeds the MAPR of $7,329.00.  The RO noted in the December 2010 supplemental statement of the case that the countable income was reduced by medical expenses of $1,932.24 less the medical reduction of $366.00, which is 5% of the MAPR.  

The RO noted that the countable income for 2008 was of $9,297.00 (SSA annual income of $10,032.00 reduced by medical expenses of $1,109.14 less medical reduction of $374.00) continued to exceed the MAPR.  

To the extent that some of the addition medical expenses listed by appellant in her March 2009 statement were paid prior to the date of claim, they were not used to reduce her countable income.  These included payments listed as paid in July 2007 to Muenster Hospital, and in June, July and August 2007 to Sears Medical.  

As discussed above, 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 annual income of appellant has been listed above and is not in dispute.  The medical expenses listed by her as being paid as of the date of claim have been considered and her income has been adjusted downward accordingly.  It is uncontroverted that her income remains above MAPR at all times relevant to this decision.  

In summary, the evidence of record shows the appellant's countable income exceeds the statutory limits for entitlement to pension benefits.  The Board is very sympathetic to her loss and recognizes the Veteran's contributions to his country and particularly his lengthy and honorable 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 2011).  The law passed by Congress specifically prohibits the payment of VA pension benefits to those whose countable income exceeds statutory limits. 

The Board advises the appellant that any significant changes in her income should be reported to VA, and she is always free file a new claim for pension benefits based on altered income.  


ORDER

Entitlement to a nonservice-connected death pension is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs