Citation Nr: 1322140	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  09-30 309	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to death pension benefits for the Veteran's surviving children.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to November 1977.  The appellant is his sister, who is the custodian of his two daughters (although they have reached adulthood since now 18 and 19 years old).

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2007 administrative decision of the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin.  However, the Regional Office (RO) in New Orleans, Louisiana, certified the appeal to the Board.

In March 2013, in support of her claim, the appellant-sister testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board.


FINDING OF FACT

Throughout the pendency of this appeal, the childrens' countable annual income has exceeded the maximum annual income limit for receipt of nonservice-connected death pension benefits.


CONCLUSION OF LAW

The criteria are not met for receipt of these benefits.  38 U.S.C.A. § 1542 (West 2002); 38 C.F.R. §§ 3.24, 3.271 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012).

Upon receipt of a complete or substantially complete application, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so-called "fourth" requirement that VA also specifically request the claimant to provide any evidence in his or her possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012).

Ideally, VCAA notice should precede the initial adjudication of the claim.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  If, however, for whatever reason it did not, or the notice provided was inadequate or incomplete, then VA need only provide all necessary notice and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC) to rectify ("cure") the timing defect in the provision of the notice.  This preserves the intended purpose of the notice and allows the claimant opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears this burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, of showing the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Suffice to say that, in this particular instance, upon learning of the Veteran's death, the VA Pension Center in Milwaukee, Wisconsin, sent the appellant a letter in December 2007 denying her claim of entitlement to death pension benefits on behalf of his two children (Aleshia and Leashia Riggs).  The letter explained the basis of the decision, i.e., excessive income, indicated she resultantly could advise of any changes in countable income and/or paid unreimbursed medical expenses to in turn reduce this countable income, and provided other information concerning the requirements for receipt of Dependency and Indemnity Compensation (DIC).  The letter also indicated what she could do if she disagreed with the decision or had questions or needed assistance.  The letter further provided an income breakdown, explaining there were no paid unreimbursed medical expenses to offset the children's income from Social Security, hence, the reason they have excessive income and resultantly cannot receive VA death pension benefits.

Another letter sent in February 2008 concerned the payment of burial benefits, explaining that the amount allocated - $300.00 for funeral costs and another $300.00 for cemetery/plot costs - was the maximum permissible for a Veteran whose death wasn't related to military service, meaning not because of a 
service-connected disability (hence, the only remaining avenue, instead, 
being non-service-connected disability, i.e., pension).


A still additional letter in June 2008 explained why the children's Social Security income could not be excluded because this exception only applies to Veterans or their surviving spouses.  The appellant additionally was advised of the time limit for submitting evidence of changes in income and/or paid unreimbursed medical expenses for the time periods at issue, told that her claim for accrued benefits also was being denied because the Veteran did not have any due and unpaid benefits payable at the time of his death, and that she could appeal these decisions if she disagreed with them - which she since has but only as concerning the claim for VA death pension benefits on the children's behalf.  She submitted a timely notice of disagreement (NOD) in July 2008 to initiate the appeal process, later indicated in August 2008 that she was electing the alternative appeal option of having a local Decision Review Officer (DRO) conduct a de novo review of her claim, and once that review was completed and the claim still denied, resultantly was provided an SOC in August 2009.  The SOC cited the applicable statutes and regulations and contained discussion of the reasons or bases for not granting her claim.  Her claim therefore has been reconsidered since providing all required notice concerning her claim, thus, the fact that she did not receive notice prior to the initial adjudication of her claim is nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102 (2012).  She completed the steps necessary to perfect her appeal of this claim to the Board by filing a timely substantive appeal (VA Form 9) later in August 2009.  38 C.F.R. § 20.200.

She also since has had a videoconference hearing in March 2013 before the undersigned Veterans Law Judge (VLJ) of the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the DRO or VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Here, during the hearing, the presiding VLJ elicited testimony to support the appellant's claim and sought to identify any potentially pertinent evidence not then currently of record that might tend to substantiate the claim.  This included explaining the need to offset the children's countable income from Social Security in some way, such as by having proof of paid unreimbursed medical expenses.  The hearing therefore focused on the elements necessary to substantiate the claim, and through her testimony the appellant demonstrated her actual knowledge of the elements necessary to substantiate the claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 
30-31 (2007) (actual knowledge is established by statements or actions by the claimant demonstrating an awareness of what is necessary to substantiate a claim).  She repeatedly has been told of how VA does the calculations of countable income, including insofar as what is countable versus what is not, and her response essentially only has been that the children's Social Security income, which she indicated during the hearing has been about $809 to each child since the Veteran's death, just should not be counted if for no other reason that simply out of a sense of fairness.  She also cites the unfairness in having her, as custodian and caretaker, assume the additional financial burdens of the children with no additional assistance from VA.  Her arguments, then, are based entirely in equity rather than actual law.  The Board does not have authority to grant this claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994).  Payments from the Federal Treasury must be authorized by statute, so government employees may not make obligations that are beyond the scope authorized by statute.  Zimick v. West, 11 Vet. App. 45, 50 (1998) (citing Malone v. Gober, 10 Vet. App. 539, 543 (1997)) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990); 31 U.S.C. 1341(a)).

As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) such that the Board may proceed to adjudicating this claim.  Moreover, neither the appellant nor her representative has asserted or shown that VA failed to comply with 3.103(c)(2) or identified any prejudice in the conducting of the hearing.

II.  Analysis

Death pension benefits are generally available for surviving children of a Veteran, as a result of the Veteran's nonservice-connected death.  38 U.S.C.A. § 1542 (West 2002).  An appellant is entitled to such benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, the surviving child's income or the income of the surviving child and any person with whom the child is residing who is legally responsible for the child's support does not exceed certain limits.  38 U.S.C.A. § 1542; 38 C.F.R. § 3.3(b)(4) (2012).

The maximum annual rates of improved pension payable under Pub. L. 95-588 (92 Stat. 2497) are set forth in 38 C.F.R. §§ 3.23 and 3.24.  The monthly rates and annual income limitations applicable to this case are set forth in 38 C.F.R. § 3.24.

The rates of death pension benefits are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in the Code of Federal Regulations.  38 C.F.R. § 3.21 (2011).  The rates for the pertinent years are as follows:

Effective December 1, 2005, the maximum allowable rate for a surviving spouse with one child was $9,287 and the maximum allowable rate for a child alone was $1,806.  Effective December 1, 2006, the maximum allowable rate for a surviving spouse with one child was $9,594 and the maximum allowable rate for a child alone was $1,866.  Effective December 1, 2007, the maximum allowable rate for a surviving spouse with one child was $9,815 and the maximum allowable rate for a child alone was $1,909.  Effective December 1, 2008, the maximum allowable rate for a surviving spouse with one child was $10,385 and the maximum allowable rate for a child alone was $2,020.  Effective December 1, 2011, the maximum allowable rate for a surviving spouse with one child is $10,759 and the maximum allowable rate for a child alone is $2,093.  See M21-1, part I, Appendix B.

Pension shall be paid to a child in the custody of a person legally responsible for the child's support at an annual rate equal to the difference between the rate for a surviving spouse and one child under § 3.23(a)(5), and the sum of the annual income of such child and the annual income of such person, or the maximum annual pension rate under 38 C.F.R. § 3.24(b) of this section (a child with no custodian), whichever is less.  38 C.F.R. § 3.24(c) (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 except for listed exclusions.  38 U.S.C.A. § 1503(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.271(a) (2012).

The following, as set forth in 38 C.F.R. § 3.272, shall be excluded from countable income for the purpose of determining entitlement to improved pension:  welfare, maintenance, VA pension benefits, reimbursement for casualty loss, profits realized from a property sale, joint accounts, unreimbursed medical expenses, expenses of last illnesses and burials and just debts, educational expenses, certain portion of a child's income, Domestic Volunteer Service Act program payments, distribution of funds under 38 U.S.C.A. § 1718, child's available income under hardship circumstances, survivor benefit annuity paid by the Department of Defense, Agent Orange settlement payments, restitution to individuals of Japanese ancestry, proceeds from the cash surrender of a life insurance policy which represent a return of insurance premiums, income received by American Indian beneficiaries from trust or restricted lands, Radiation Exposure Compensation Act payments, and Alaska Native Claims Settlement Act payments.  Exclusions from income do not include Social Security disability benefits.  38 C.F.R. § 3.272 (2012).  Such income is therefore included as countable income.

Turning now to the facts and circumstances of this particular case at hand.  The Veteran did not have any adjudicated service-connected disabilities at the time of his death, but served for more than 90 days during the Vietnam era.  The appellant was the custodian of his two minor daughters, who reached the age of majority (maturity) during the course of this appeal since they are now 18 and 19 years old.

Although requested, the appellant has not submitted VA Forms 21-0519C-1 (Improved Pension Eligibility Verification Report (Child or Children)) or 
Forms 21-8416 (Medical Expense Report) for each year during the course of this appeal, other than for 2007.  During the March 2013 videoconference hearing, she testified that each child received, at least, $809.00 per month from the Social Security Administration (SSA).  (See March 2013 Hearing Transcript, p. 5).  She did not report her custodial household income (only instead the income received for the minor daughters).

As explained, pension for a child shall be computed based on the income of the child and custodian, or on the child alone, whichever results in the lower amount of pension.  Here, as the available evidence shows each child's annual income alone exceeds the Maximum Annual Pension Rate (MAPR) for the award of nonservice-connected death pension benefits for a surviving child, the claim of entitlement to nonservice-connected death pension benefits must be denied due to excessive yearly income.  The income received for the minor children for 2007 was $6,408.00.  The appellant did not report any medical expenses.  Based on her testimony in March 2013, each child received $809.00 monthly from SSA.  (See March 2013 Hearing Transcript, p. 5).  This would amount to $9,708 annually per child ($809 x 12 mo.= $9,708).  This exceeds the MAPR of $1,806 effective December 1, 2005; $1,886 effective December 1, 2006; $1,909 effective December 1, 2007; $2,020 effective December 1, 2008 and December 1, 2009, etc.  

As the children's income, alone, exceeds the MAPR for the award of nonservice-connected death pension benefits for a surviving child, there is no basis for granting the benefits requested in this appeal.

The appellant has not reported her income during the course of this appeal.  The Board, however, has given the most favorable reading possible to the facts of this case, but finds that there is no interpretation of the facts of this case that will support a legal basis for favorable action with regard to this claim for nonservice-connected death pension benefits.  The above information shows that, throughout the pendency of this appeal, the countable income from Social Security for the children alone exceeds the MAPR for the award of nonservice-connected death pension benefits.  

The appellant contends that Social Security income should not be factored into determining death pension benefits.  The Board understands that at least part of her current frustration is based on the seemingly arbitrary application of the rule.  The Board is sympathetic to her arguments, but, unfortunately, is unable to provide a legal remedy, as the law is clearly stated.  Federal laws authorizing monetary benefits are enacted by Congress, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed, the benefit cannot be awarded, regardless of the circumstances.  See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994).

As such, the claim must be denied.  Although the Board is sympathetic to the appellant's situation, the law compels the conclusion reached in this case.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).



ORDER

The claim of entitlement to VA death pension benefits for the Veteran's surviving children is denied.



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs