Citation Nr: 1315495	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  12-21 970	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Milwaukee Pension Management Center


THE ISSUE

Whether the appellant's income is a bar to non-service-connected death pension benefits with an additional allowance for aid and attendance, from July 1, 2011, through August 31, 2012, and entitlement to the same for this period.


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel



INTRODUCTION

The Veteran served on active duty from November 1952 to September 1954.  The Veteran died in May 2011.  The appellant is his surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) from a January 2012 rating action of the Department of Veterans Affairs (VA) Milwaukee Pension Management Center (Pension Center), in Milwaukee, Wisconsin.  In that rating action, the Pension Center granted entitlement to death pension benefits with entitlement to aid and attendance effective May 1, 2011, payable June 1, 2011, and, effective July 1, 2011, denied entitlement to the same finding that the appellant's gross annual income was excessive.  

In a September 2012 rating action, the Pension Center granted entitlement to death pension benefits with entitlement to aid and attendance effective August 8, 2012, payable September 1, 2012, based upon evidence of changed medical expenses that reduced her countable income.  Thus, the issue of entitlement to death pension benefits with entitlement to aid and attendance from July 1, 2011, through August 31, 2012, remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

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).


FINDING OF FACT

The appellant's care at the Pine Ridge Retirement Community was medically necessary and her annual countable income does not exceed the statutory maximums for the receipt of non-service-connected death pension with aid and attendance benefits for the period July 1, 2011, through August 31, 2012. 


CONCLUSION OF LAW

The appellant's annual countable income does not exceed the annual statutory maximums for the receipt of non-service-connected death pension with aid and attendance benefits, and such benefits are granted from July 1, 2011, through August 31, 2012.  38 U.S.C.A. §§ 1503, 1521, 1541, 1542, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.159, 3.271, 3.272, 3.273 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126.

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Basic entitlement to VA non-service-connected improved death pension benefits exists if: (i) the veteran had qualifying service (a veteran who served during wartime); or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23.  38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. § 3.3(b)(4) (2012).

The purpose of VA pension benefits is to provide a subsistence income for the surviving spouses of veterans of a period of war who were totally disabled.  Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the appellant supports.  Recipients of pension income are required to report any changes in income and net worth, and number or status of their dependents in a timely fashion.  38 U.S.C.A. §§ 1541, 1542 (West 2002).

Under the law, the maximum annual rate of improved (non-service-connected) death pension payable to a surviving spouse varies according to the number of dependents.  38 U.S.C.A. §§ 1503, 1541 (West 2002); 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.273 (2012).  The rate of pension payable to an entitled payee is based on the amount of countable income received.  Pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12-month annualized basis.  38 U.S.C.A. §§ 1503, 1541 (West 2002); 38 C.F.R. §§ 3.3, 3.23 (2012).

The maximum annual rate of pension is established by statute every year and is reduced by the surviving spouse's countable annual income.  "Annual income" includes the surviving spouse's own annual income, and, with certain exceptions, the annual income of each child of the veteran in the custody of the surviving spouse.  38 C.F.R. § 3.23(d)(5) (2012).

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)(3) (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).
For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a surviving spouse for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the applicable maximum annual pension rate (MAPR) for the surviving spouse as in effect during the 12-month annualization period in which medical expenses were paid, regardless of when the indebtedness occurred.  38 U.S.C.A. §§ 501, 1503(a)(8) (West 2002); 38 C.F.R. § 3.272(g) (2012).

Expenses of last illnesses, burials and just debts, incurred by a surviving spouse, which are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month 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.  Otherwise, such expenses are deductible for the 12-month annualization period in which they were paid.  38 C.F.R. § 3.272(h).

The MAPR is published in appendix B of the Veterans Benefits Administration Manual M21-1 and is to be given the same force and effect as published in VA regulations.  38 C.F.R. § 3.21 (2012).  In the present case, the MAPR for an otherwise eligible claimant, without a dependent child, and with aid and attendance, is $12,681.00.  VA Manual M21-1, Part I, Appendix B.  

The Veteran in this case served on active duty from November 1952 to September 1954, which included service during the Korean conflict.  See 38 C.F.R. § 3.2(e).  The Veteran died in May 2011.  Thus, as the Veteran served for 90 days or more during a period of war, in order to be entitled to non-service connected death pension benefits with aid and attendance, 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).

In the January 2012 determination on appeal, the Pension Center denied the appellant's claim based upon her income exceeding $12,681.00.  In particular, the pension center calculated that effective July 1, 2011, her income was $21,064.00, following the deduction of $3,071.00 of medical expenses, less 5% of the applicable MAPR.  In calculating this figure, the Pension Center refused to deduct from this figure her expenditures at the Pine Ridge Retirement Community (hereinafter "assisted living center"), finding that the money paid to the assisted living center did not qualify as medical expenses deductible from her income for pension purposes.  See 38 C.F.R. §  3.272(g).  In particular, the appellant had claimed a total of $150.00 monthly for administration of medication and $2,400.00 for "rent" at the assisted living facility.  

The appellant does not contest any of the Pension Center's calculations and a review thereof by the Board shows them to be in order mathematically.  She does, however, assert that her assisted living expenses of $2,550.00 monthly, or $30,600.00 annualized (less 5% of the applicable MAPR), should be deducted from her income and thus render her eligible for non-service-connected death pension benefits with entitlement to aid and attendance, from July 1, 2011, through August 31, 2012.

In support of her claim, the appellant has submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance dated in June 2011.  The form documents that she had been assessed as having moderate/severe Alzheimer's dementia and was not able to prepare her meals, needed assistance bathing and attending to other hygiene needs and required assisted living care.  She was indicated as unable to manage her own financial affairs and that she was not to be left alone.  

Also in furtherance of substantiating her claim, the appellant submitted a document signed by a doctor from the St. John Hospital and Medical Center in February 2012.  The document indicated that it was the doctor's opinion that the assisted living center at which the appellant then resided, and had resided at since around May 2011, was providing her with a protected environment that was necessary in light of her medical condition.  The opinion also documents that it was that doctor's opinion that the appellant was unable to leave the premises of the assisted living center without supervision, that she required emergency pull cords, could not drive, was unable to dress and undress without assistance, etc., and that she required 24/7 oversight.  

In a March 2012 statement, the appellant offered reasons for disagreeing with the Pension Center's exclusion from deduction of the expenses related to her residence at the assisted living center.  In pertinent part, the appellant noted that M21-1MR, Part V, Subpart iii, Chapter 1, Section G.43.h, provided that: "[i]f a beneficiary or dependent, or other person for whom medical expenses may be allowed, is maintained in a home, assisted-living facility, or other institution, because the individual needs to live in a protected environment, all unreimbursed fees paid to the institution for custodial care ("room-and-board") and medical or nursing care are deductible expenses, as long as" either a licensed physician certifies that the individual has a medical condition that makes such a level of care necessary, or VA has determined the individual is entitled to aid and attendance or housebound benefits as a beneficiary or the spouse of a Veteran entitled to compensation at the 30 percent rate or higher.

In her August 2012 Substantive Appeal, the appellant indicated that she had moved.  In particular, she noted that she had moved to an adult foster home and that her medical expenses had changed, as well as that she needed more care.  Based largely upon this fact, the Pension Center granted entitlement to the benefit sought as of August 31, 2012, as explained above.  

As the appellant rightly points out, the M21-1MR indicates that where a physician's statement indicates that a protected environment is necessary, despite the absence of the provision of "medical services," then all unreimbursed fees paid to the institution are deductible expenses.  Notably, the manual gives an example wherein a surviving spouse has Alzheimer's disease and such a physician's statement is necessary to allow for deduction of expenses for assisted living, including "room-and-board." 

Along these lines, the Board notes that it is generally not bound by VA manuals.  See 38 C.F.R. § 19.5 (2012).  Nevertheless, the Board finds the manual persuasive, particularly in light of the example it gives concerning the diagnosis of Alzheimer's, which is identical to the facts presented here to the Board.  Thus, as a physician has indicated that it was medically necessary for the appellant to live in an assisted living center with 24/7 supervision the Board concludes that the expenses associated therewith are deductible from income as medical expenses.  38 C.F.R. §  3.272(g).  Thus when the total of her medical expenses ($3071.00 plus $30,600 less 5% of the applicable MAPR, i.e. $634.05), is deducted from her income (approximately $24,000.00 annualized), a negative figure results for countable income and the appellant thus qualifies for the benefits sought.  Accordingly, non-service-connected death pension benefits with an additional allowance for aid and attendance are granted from July 1, 2011, through August 31, 2012.  Gilbert, supra.


ORDER

Entitlement to non-service-connected death pension benefits with an additional allowance for aid and attendance, from July 1, 2011, through August 31, 2012, is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs