Citation Nr: 1308218 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-36 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether termination of the appellant's death pension benefits, effective January 1, 2008, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from August 1952 to June 1954. The Veteran died in June 2007. The appellant seeks surviving spouse benefits. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that granted nonservice-connected death pension benefits from July 1, 2007, and then terminated the appellants death pension benefits as of January 1, 2008, due to her countable annual income exceeding the maximum annual pension rate (MAPR). The appellant was notified of that decision in April 2008. FINDING OF FACT Effective from January 1, 2008, the appellant's countable annual income for a surviving spouse with no dependents exceeded the maximum annual pension rate (MAPR) limit set by law for payment of VA death pension benefits, thus, necessitating termination of her benefits. CONCLUSIONS OF LAW Termination of the appellant's death pension benefits based on excessive income, effective January 1, 2008, was proper. 38 U.S.C.A. §§ 1503, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3(b)(4), 3.21, 3.23, 3.271, 3.272, 3.273, 3.660 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist VA is required to provide notice and assistance to claimants. 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). However, where, as here, the law is dispositive of the matter on appeal, the duties to notify and assist imposed by statue and regulation are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Nonetheless, the Board notes that in the December 2007 administrative decision, a March 2009 letter, and in the September 2009 statement of the case, the RO discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision, and afforded opportunity for the appellant to provide information and evidence pertinent to the claim. The Board finds that those actions are sufficient to satisfy any required duties to notify and assist. Thus, even if the Board were to presume, for the sake of argument, that there was some deficiency of notice or development, any deficiency would be inconsequential and, therefore harmless, nonprejudicial error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (party alleging defective notice has the burden of showing how the defective notice was harmful). Furthermore, the Board finds that the appellant has not put VA on notice of any relevant, unobtained evidence that must be acquired prior to adjudicating the claim. Therefore, the duty to assist has been met. Analysis Death pension is available to the surviving spouse of a Veteran because of his nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. 38 U.S.C.A. §§ 101, 1521(j), 1541 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5), (2012). Basic entitlement to death pension exists if, among other things, the surviving spouse's income is not in excess of the applicable MAPR specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. 38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3(b)(4), 3.23(a), (b), (d)(5) (2012). 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 if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23 (2012). The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C.A. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b) (2012). Fractions of dollars will be disregarded in computing annual income. 38 C.F.R. § 3.271(h) (2012). 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 during the 12 month annualization period in which received, except for listed exclusions. 38 U.S.C.A. § 1503(a) (West 2002); 38 C.F.R. § 3.271(a) (2012). Social Security Administration income is not specifically excluded under 38 C.F.R. § 3.272, nor is the income of a child in the custody of the surviving spouse. In fact, the surviving spouse's annual income includes the annual income of the surviving spouse and the Veteran's children in her custody. 38 C.F.R. § 3.23(d)(5) (2012). Those incomes are, therefore, included as countable income. Unreimbursed medical expenses in excess of five percent of the MAPR, 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) (2012). In order to be excluded from income, the medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the surviving spouse received no reimbursement, such as through an insurance company. However, medical insurance premiums themselves, and the Medicare deduction, may be applied to reduce countable income. Types of income which are excluded from countable income for VA pension purposes includes welfare benefits; maintenance benefits furnished by a relative, friend, or a charitable organization; VA pension benefits; casualty loss reimbursement; profit from the sale of property; joint accounts; medical expenses; expenses of last illnesses, burials, and just debts; educational expenses; a portion of the beneficiary's children's income; Domestic Volunteer Service Act Programs payments; distributions of funds under 38 U.S.C. § 1718; survivor benefit annuities; Agent Orange settlement payments; restitution to individuals of Japanese ancestry; cash surrender value of life insurance policies; income received by American Indian beneficiaries from trust or restricted lands; Radiation Exposure Compensation Act payments; and Alaska Native Claims Settlement Act payments. The types of income excludable for VA pension purposes must be deducted in the year in which they occurred. 38 C.F.R. § 3.272 (2012). Accordingly, should the expenses reduce the income below zero, the remaining expenses will not count against the next year's income. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a) (2012). 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) (2012). 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) (2012). 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) (2012). As of December 1, 2007, the MAPR as to death pension for a surviving spouse without a dependent child was $7,498.00. 38 C.F.R. § 3.23(a)(5) (2012); M21-1, Part I, Appendix B. As of December 1, 2008, the MAPR as to death pension for a surviving spouse without a dependent child was $7,933.00. 38 C.F.R. § 3.23(a)(5) (2012); M21-1, Part I, Appendix B. Initially, with regard to basic eligibility for death pension, the record shows that the Veteran has the requisite wartime service, and the Veteran's death was nonservice-connected. 38 C.F.R. § 3.3(b)(4) (2012). A December 2007 RO decision awarded death pension benefits to the appellant, effective July 1, 2007. She was paid as a surviving spouse with no dependents. Specifically, the appellant was awarded death pension benefits in the amount of $356.00 a month from July 1, 2007, to December 1, 2007, and in the amount of $361.00 a month beginning on December 1, 2007, for cost of living adjustment. However, the death pension benefits were subsequently terminated, effective January 1, 2008, as the RO determined that the appellant's annual countable income exceeded the MAPR at that point. The December 2007 decision also approved the appellant's claim for accrued benefits because VA owed the Veteran money at the time of his death in the amount of $215,328.00. Thus, effective January 1, 2008, the $215,328.00 VA accrued benefit payment that the appellant was to receive in December 2007 was counted as income for VA purposes, along with her annual Social Security payments of $5,268.00, and Social Security Death Benefit of $255.00 for a total family income of $220,851.00. The RO continued the allowance of $2,357.00 for the amount paid for the Veteran's last illness and burial expenses which reduced the appellant's income to $218,494.00. The appellant's yearly income far surpasses the MAPRs of $7,498.00, effective December 1, 2007. During a March 2009 informal conference, the appellant informed the DRO that she would provide evidence regarding last illness and burial expenses that could offset the accrued benefit payment of $215,328.00. In addition, she reported that she paid some medical expenses. In a March 2009 letter from the RO, the appellant was requested to complete and return the appropriate forms with the details of expenses. No response was received from the appellant or her representative as to an accounting of expenses that could offset the accrued benefit payment. 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 (1991). The burden is on the appellant to demonstrate that her annual income is below the maximum allowable rate for receipt of death pension. Where reduction or discontinuance of a running award of improved pension is required because of an increase in income, the reduction or discontinuance shall be made effective the end of the month in which the increase occurred. 38 C.F.R. § 3.660(a)(2) (2012). The Board finds that the Appellant's income exceeds the maximum allowable pension rate for a surviving spouse with no dependents as of December 1, 2007. Thus, she is no longer entitled to VA improved death pension benefits, and termination of non service-connected death pension benefits from January 1, 2008, was proper. The Board is sympathetic to the Appellant's claim. Unfortunately, the Appellant's countable income must be less than the annual death pension rate determined by law. VA is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c) (West 2002). Her countable income was in excess of the applicable pension rate for death pension. Therefore, the Appellant was not legally entitled to death pension benefits beginning on January 1, 2008. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board finds that the preponderance of the evidence is against the appellant's claim and termination of death pension benefits on January 1, 2008, was proper. ORDER Termination of the appellant's death pension benefits on January 1, 2008 was proper. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs