Citation Nr: 1313108 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-47 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether the reduction of death pension benefits effective June 1, 2009, based on the receipt of Social Security Administration (SSA) benefits was proper. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from September 1950 to January 1953. The Veteran died in July 1985. This appeal arises from a January 2010 determination of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA), which reduced the appellant's nonservice-connected death pension effective, effective June 1, 2009, due to her concurrent receipt of benefits from the SSA. FINDINGS OF FACT 1. The appellant has been receiving VA death pension benefits since 1986. 2. Effective in April 2009, the appellant was determined to be entitled to SSA benefits; her first receipt of such benefits was in May 2009. 3. As of June 1, 2009, VA counted the appellant's monthly SSA benefit as countable income. 4. For the annual 12 month period beginning June 1, 2009, the appellant's countable income was derived from monthly SSA benefits of $358 (an annual award of $4296); she had an annual educational expense of $120 that was deducted from her annual income. 5. In a September 2009 letter, the RO notified the appellant that VA proposed to reduce her death pension benefits as her countable income had increased due to the receipt of SSA benefits. 6. An Improved Pension Eligibility Verification Report (EVR) showed that the appellant's income consisted of SSA payments of $358 per month as well as VA pension payments. 7. In a January 2010 decision, the reduction of death pension benefits was implemented effective June 1, 2009; the appellant's overall countable income as of June 1, 2009, was $4176, representing a 12 month period of $358 from SSA times 12 or $4296 less the $120 educational expenses, totaling $4176; that amount was then deducted from VA's annual statutory limit of $7933, this totaling $3757, then divided by 12, making $313 the reduced monthly amount of VA benefits which the appellant was entitled to receive. CONCLUSION OF LAW The appellant's death pension benefits were correctly reduced on June 1, 2009, based on the receipt of SSA benefits. 38 U.S.C.A. §§ 101, 1501, 1503, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3, 3.23, 3.262, 3.271, 3.273 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. The instant case rests on the interpretation and application of the relevant law. The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). In addition, there is no indication that any additional notice or development would aid the appellant in substantiating the appellant's claim, as the appellant does not challenge that she received SSA benefits. 38 U.S.C.A. §§ 5103, 5103A; see also Dela Cruz, 15 Vet. App. 143 (2001). The evidence of record reveals that the Veteran died in July 1985. The appellant, his surviving spouse, filed a claim of entitlement to improved death pension benefits after his death. In an August 1986 letter, she was advised that she had been awarded death pension benefits from January 1, 1986. She was informed that it was her obligation to promptly notify VA of any changes in her income. Over the years, the appellant notified VA of her annual income. She was also informed of her continued obligations as a pension recipient. The law provides that the Secretary shall pay to the surviving spouse of each veteran who served for ninety (90) days or more during a period of war or who at the time of death was receiving or entitled to receive compensation or retirement pay for a service-connected disability pension at the rate prescribed by law and reduced by the surviving spouse's annual income. 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23. The maximum rate of improved death pension is reduced by the amount of the countable annual income of the surviving spouse. 38 C.F.R. § 3.23(b). For purposes of improved death pension, payments of any kind from any source are counted as income in the year in which received unless specifically excluded. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. The types of income which are excluded are set forth under 38 C.F.R. § 3.272. That regulation specifically excludes 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 maximum annual rates of pension and death pension payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21. Effective December 1, 2008, it was $7933 and the same rate was in effect on December 1, 2009. 38 U.S.C.A. §§ 1503, 1541; 38 C.F.R. § 3.23; VA ADJUDICATION PROCEDURE MANUAL, M21-1, Part I, Appendix B. The maximum rate of improved death pension is reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. For the purpose of determining initial entitlement, the monthly rate of pension payable to the beneficiary shall be computed by reducing the beneficiary's applicable maximum pension rate by the beneficiary's countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273. In 2009, VA verified that the appellant had been awarded SSA benefits, effective April 2009. In a September 2009 letter, the RO notified the appellant that VA proposed to reduce her death pension benefits as her countable income had increased due to the receipt of SSA benefits. The reduction was scheduled to be retroactively implemented June 1, 2009. In response, the appellant submitted an Improved Pension Eligibility Verification Report (EVR) which showed that her income consisted of SSA payments of $358 per month as well as VA pension payments. She also provided information that indicated that she had not remarried and was not working. In a January 2010 decision, the RO reduced the appellant's death pension benefits effective June 1, 2009. The RO based the calculated amount on the appellant's receipt of SSA in the amount of $358 per month. The RO also included the appellant's education expenses of $120 per 38 C.F.R. § 3.272. Her overall countable income as of June 1, 2009, was $4176, representing a 12 month period, not a 12 month calendar year. The calculation was made as follows: $358 times 12 or $4296 less the $120, totaling the indicated amount of $4176. Based on that amount, the appellant was entitled to $313 per month as the annual pension rate of $7933 less the income amount of $4176 equals $3757. That amount divided by 12 equals $313 per month. At this juncture, the Board recognizes that she did not receive a full year's worth of SSA benefits during 2009; however, VA did not calculate her benefits based on a calendar year, as noted, but rather, based on a 12 month annualized year, which commenced from June 1, 2009, and going forward. Therefore, there was no offset for any month in which she did not receive SSA benefits. The Board further notes that income derived from SSA benefits is not excluded from countable income. As noted, a widow without dependents cannot receive improved death pension benefits if her income is above a certain level. With the receipt of SSA benefits, with a commencement date of June 1, 2009, her annual income did not exceed the statutory limit, but the SSA benefits reduced her amount of VA death pension benefits, to the extent explained above. The positive and negative evidence is not in equipoise. Therefore, the doctrine of the benefit of the doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012). ORDER The appellant's death pension benefits were correctly reduced on June 1, 2009, based on the receipt of SSA benefits; the appeal is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs