Citation Nr: 1232575 Decision Date: 09/21/12 Archive Date: 10/01/12 DOCKET NO. 09-24 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to non-service-connected death pension. ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to March 1967. He died in May 1981 and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO considered whether the appellant was entitled to death pension from her date of claim to the end of 2007. In September 2009, the Appellant filed another claim for death pension. This claim was denied in September 2010. Thereafter, the Appellant did not respond. The Board notes the Appellant was scheduled for a Board hearing in July 2012, however she did not appear for this hearing. As the Appellant has not offered a statement of good cause as to why she missed the hearing, or asked for another hearing, the Board will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d) (2011). FINDING OF FACT The Appellant's countable income exceeds the applicable maximum annual pension rates. CONCLUSION OF LAW The criteria for entitlement to non-service-connected death pension benefits have not been met. 38 U.S.C.A. §§ 1521, 1541 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties 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 and 3.326(a). The notice requirements were met in this case by a letter sent to the Appellant in April 2006. This letter advised the Appellant of the information necessary to substantiate her claims, and of hers and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letters also advised the Appellant of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As there is no legal entitlement to the benefits claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. Thus, any deficiencies of notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis The Appellant is seeking death pension benefits. Death pension benefits are generally available for surviving spouses, as a result of a Veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a). An Appellant is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; and, the Appellant meets specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). The surviving spouse of a veteran who meets wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments from 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. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum annual pension rate (MAPR) by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to such pension exists if, among other things, the Appellant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1541(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21- 1 (M21-1) and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21. The Appellant filed her claim for nonservice-connected death pension benefits in February 2006. She reported that she did not have any dependents. The total MAPR for a surviving spouse with no dependents, effective December 2005 was $7,094.00. In December 2006, this amount was increased to $7,329.00. This amount was increased to $7,489.00, effective in December 2007. Income from Social Security Administration (SSA) benefits, to include Social Security disability payments, is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Certain unreimbursed medical expenses may be excluded from countable income for the same 12-month annualization period to the extent they were paid. To be considered, the total expense must be in excess of five percent of the MAPR. 38 C.F.R. § 3.272. Effective December 2005, five percent of the MAPR was $354; effective December 2006, five percent of the MAPR was $366. Effective December 2007, five percent of the MAPR is $374.90. The Veteran in this case served on active duty from June 1962 to March 1967, which included service during the Vietnam War. The Veteran died in May 1981. Thus, as the Veteran served for 90 days or more, part of which was during a period of war, in order to be entitled to nonservice-connected death pension benefits, the Appellant must only meet the specific income and net worth requirements. See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). The Appellant submitted her claim for death pension in February 2006. She stated that she had applied for benefits from the Social Security Administration (SSA) and had income from D.S.S. totaling $2,220 ($185 x 12). A notice of the Appellant's benefits from the SSA indicated that she received $8,556 ($713 x 12) for the 2006 year. The Appellant was also receiving income from D.S.S totaling $2,220 ($185 x 12). The Board has subtracted the $1,122 ($93.50 x 12) for Supplemental Medical Insurance. However, the Appellant's income still exceeds the MAPR for the 2006 year. A notice of the Appellant's benefits from the SSA indicated that she was receiving $8,832 ($736 x 12) for the 2007 year. The Appellant was also receiving income from D.S.S totaling $2,220 ($185 x 12). The Board has taken into account the $1,122 ($93.50 x 12) for Supplemental Medical Insurance. However, the Appellant's income still exceeds the MAPR for the 2007 year. As set forth above, a surviving spouse without dependents cannot receive death pension benefits if her income exceeds a specified annual level. Because the Appellant's income (even with the subtraction of medical expenses) exceeded the statutory limit in each of the years from her claim to the end of 2007, she is not entitled to VA non-service-connected death pension benefits. 38 C.F.R. § 3.273. While the Board is sympathetic to the Appellant's loss, and recognizes the Veteran's honorable service to his country, it is bound by the laws and regulations governing VA benefits. Because Congress prohibits the payment of VA death pension to those whose countable income exceeds statutory limits, and the Appellant's income exceeds those limits, she is not legally entitled to VA death pension benefits. The Appellant should understand that should her income decrease, or if the amount that she pays out in the form of unreimbursed medical expenses increases, she may reapply for improved death pension benefits. ORDER Entitlement to non-service-connected death pension benefits is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs