Citation Nr: 1307925 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 11-33 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from February 1944 to January 1946. The Veteran died in November 2009 and the appellant is his surviving spouse. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Oakland, California (RO). This case was remanded by the Board in July 2012 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant's total countable annual income was $20,971.00 for the year beginning December 1, 2009, and at least $18,276.00 for all subsequent years beginning December 1, 2010. 2. The appellant reported that she had paid $7,693.44 in burial expenses in 2009. CONCLUSION OF LAW The appellant's countable annual income is in excess of the prescribed limit for entitlement to improved death pension benefits for the entire period on appeal. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272, 3.273 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although VA has statutory and regulatory duties to notify and assist claimants who submit claims, those provisions are not applicable here where resolution of the claim is as a matter of law. Manning v. Principi, 16 Vet. App. 534 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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) (2012). The Veteran in this case served on active duty from February 1944 to January 1946. The appellant is the Veteran's surviving spouse. See 38 C.F.R. § 3.50(b) (2012). Thus, as the Veteran served 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). 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. The maximum annual rate of improved pension for a surviving spouse is specified by statute and is increased periodically under 38 U.S.C.A. § 5312. See 38 C.F.R. § 3.23. The maximum annual rates of pension and death pension (MAPR) payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. Effective December 1, 2009, the maximum annual rate of improved death pension for a surviving spouse who was not housebound and did not require aid and attendance was $7,933. Veterans Benefits Administration, Manual M21-1, Part I, Appendix B. In determining annual income for payment of pension, all payments of any kind or from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1). Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(1)-(3). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). The following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); medical expenses which have been paid in excess of five percent of the MAPR; and expenses of last illnesses, burials, and just debts. 38 C.F.R. § 3.272 (2012). Income from Social Security Administration (SSA) disability benefits is not specifically excluded and therefore is included as countable income. 38 C.F.R. § 3.272. The evidence of record shows that the appellant has been in receipt of SSA benefits since June 1990. Therefore, the Board must take those monthly SSA payments into account when calculating the appellant's countable annual income. In the June 2010 application for benefits, the appellant reported that she received monthly payments of $1,523.00 from SSA. Based on that figure, the appellant's annual income before deductions was $18,276.00. In addition, the appellant was awarded $2,695.00 of VA burial benefits in October 2010. Accordingly, the Board finds that the appellant's total countable annual income was $20,971.00 for the year beginning December 1, 2009, and at least $18,276.00 for all subsequent years beginning December 1, 2010. In the June 2010 application for benefits, appellant stated that she paid $7,693.44 in burial expenses in 2009. Burial expenses which are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant's advantage. 38 C.F.R. § 3.272(h). Accordingly, the Veteran's burial expenses qualify for exclusion from the appellant's countable income for the relevant period. Deducting the burial expenses paid by the appellant from her countable income for the year beginning December 1, 2009, results in total annual income of $13.277.56. In fact, deducting the burial expenses paid by the appellant from her countable income for the year beginning December 1, 2010, results in total annual income of $10,582.56. It should also be noted that the MAPR for 2010 remained the same and that effective December 1, 2011, it was increased to $8219. The appellant's total countable income therefore exceeds the applicable MAPR throughout the entire period on appeal. The Board notes that, in the second scenario discussed above, the appellant's total annual income for the year beginning December 1, 2010, was below the MAPR for a surviving spouse who required aid and attendance, specifically $12,681.00. Veterans Benefits Administration, Manual M21-1, Part I, Appendix B. However, in her June 2010 application for benefits the appellant specifically stated that she was not claiming aid and attendance allowance and/or housebound benefits. There is no evidence of record that the Veteran required the regular assistance of another person during the year beginning December 1, 2010. In addition, there is no evidence of record that demonstrates that the appellant's SSA income has been significantly changed or reduced at any point since June 2010. The Board is sympathetic to the appellant's claim and the circumstances of the events surrounding this appeal. However, the applicable laws and regulations as written preclude a grant of benefits, even on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The Board is without the authority to disregard the applicable laws, notwithstanding the circumstances that have resulted in this appeal. Congress did not enact any exceptions to the above discussed legal provisions that would permit a grant of the requested benefits. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board finds that the preponderance of the evidence shows that the appellant's income is excessive for improve death pension purposes, and entitlement to payment of improved death pension benefits is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs