Citation Nr: 1318166 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-18 954A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from January 1946 to February 1953. He died in May 2007. The appellant is his surviving spouse. This matter arises to the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Board adjudicated other issues on appeal, but remanded the current issue for development. FINDINGS OF FACT 1. The appellant's countable annual income for a surviving spouse with no dependents, minus unreimbursed medical expenses, exceeds the maximum annual pension rate (MAPR) for death pension benefits beginning December 1, 2008. 2. Throughout the appeal period, the size of appellant's estate acts as a bar to death pension benefits. CONCLUSION OF LAW The criteria for entitlement to non-service-connected death pension benefits are not met at any time during the appeal period. 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, 3.274 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative of any information and evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims (hereinafter: the Court) has also held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA may refrain from providing additional assistance in obtaining evidence under certain circumstances, such as where there is no reasonable possibility that further assistance would aid the appellant in substantiating her claim. 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Moreover, because this decision denies the benefit sought, no effective date will be assigned. The Board therefore need not determine whether there remains any duty to inform the appellant with respect to provisions for assignment of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As discussed below, eligibility for death pension benefits is precluded based upon the appellant's annual income, which is excessive, and/or the size of her estate, which is reasonably available to her for maintenance. Death pension is available to the "surviving spouse" of a Veteran because of his non-service-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 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). A surviving spouse's basic entitlement to improved death pension exists if, among other things, the surviving spouse's income is not in excess of the applicable maximum annual pension rated (hereinafter: MAPR), as specified at 38 C.F.R. § 3.23, and as changed periodically and reported in the Federal Register. See 38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3(b)(4), 3.23(a), (b), (d)(5) (2011). 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. The MAPR is revised every December 1st and is applicable during the ensuing 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). In determining a claimant's 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); 38 C.F.R. § 3.271(a). Social Security Administration (SSA) income is not excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. The 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. 38 C.F.R. § 3.272 (2012). The types of income excludable for VA improved pension purposes must be deducted in the year in which they occurred. Id. Should expenses exceed income, any remaining expenses cannot be applied to the next year's income. Unreimbursed medical expenses in excess of 5 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). In order to be excluded from income, these 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 an insurance reimbursement. However, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. 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 (income received on a one-time basis), such as a one-time VA death benefit, will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(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). Unreimbursed medical expenses in excess of five percent of the MAPR may be excluded from an individual's income for the same 12-month annualization period to the extent that the medical expenses were paid. 38 C.F.R. § 3.272(g)(2)(iii). Expenses of last illnesses, burials, and just debts may be deducted from appellant's annual countable income to determine eligibility for improved death pension benefits. These expenses, specified in 38 C.F.R. § 3.272(h), 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. Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. The Veteran died in May 2007. As of December 1, 2006, the MAPR as to death pension for a surviving spouse without a dependent child was $7,329. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Five percent of this amount is $366 for purposes of medical expenses. As of December 1, 2007, the MAPR as to death pension for a surviving spouse without a dependent child was $7,498. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Five percent of this amount is $375 for purposes of medical expenses. As of December 1, 2008, December 1, 2009, December 1, 2010, and December 1, 2011, the MAPR as to death pension for a surviving spouse without a dependent child was $7,933. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Five percent of this amount is $398 for purposes of medical expenses. As of December 1, 2012, the MAPR as to death pension for a surviving spouse without a dependent child was $8,220. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Five percent of this amount is $411 for purposes of medical expenses. The MAPR for calendar year 2013 as to death pension for a surviving spouse without a dependent child is $8,359. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Five percent of this amount is $416 for purposes of medical expenses. The Veteran served during wartime and his death has been deemed non-service-connected. See 38 C.F.R. § 3.3(b)(4). The RO's denial of death pension benefits was predicated on the surviving spouse's excessive income, deemed greater than the MAPR, as of May 2007, and also was predicated on the size of her estate. Records reflect that the appellant's income has been steady at over $27,000 annually. In 2007, she reported approximately $20,000 in expenses due to the Veteran's hospital bills and his funeral expenses. Therefore, her income for VA pension purposes for 2007 was $7,192, which is, in fact, below the MAPR of $7,329. In each subsequent year, however, there was no hospitalization or funeral expense to deduct, which resulted in the appellant's income for pension purposes being excessive by over $15,000 per year. Returning to the discussion of the appellant's income for 2007, one other applicable limiting regulation arises. Under 38 C.F.R. § 3.274, the corpus of the estate of the surviving spouse may serve as a bar to a death pension benefit. That subsection states: Pension payable to a surviving spouse shall be denied or discontinued when the corpus of the estate of the surviving spouse is such that under all the circumstances, including consideration of the surviving spouse's income and the income of any child for whom the surviving spouse is receiving pension, it is reasonable that some part of the corpus of the surviving spouse's estate be consumed for the surviving spouse's maintenance. 38 C.F.R. § 3.274 (c) (2012). In her March 2011 submission, the appellant reported that she currently had about $4,000 in cash assets, and about $120,000 in other real property, not including her home. In an earlier submission, she reported that for the year 2007, her assets and real property, other than her home, was about $200,000. From this, the Board finds, as a material fact, that it is reasonable that some part of the corpus of the surviving spouse's estate be consumed for the surviving spouse's maintenance. This finding, in itself, acts as a bar to death pension benefits. 38 C.F.R. § 3.274 (c) (2012). The evidence shows that the appellant's reported countable income exceeds the statutory limits for entitlement to death pension benefits for all years since 2007. For the year 2007, the size of her estate acts as a bar to death pension benefits. The Board is sympathetic to the appellant's loss and recognizes the Veteran's contributions to his country. The Board is nonetheless bound by the laws and regulations enacted, which prohibit the payment of VA pension benefits to those whose countable income exceeds statutory limits and/or whose estate is reasonably large enough to provide additional maintenance for the surviving spouse. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for a death pension benefit must therefore be denied. ORDER Due to excessive income and the size of the estate of the surviving spouse, entitlement to non-service-connected death pension benefits is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs