Citation Nr: 1325532 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-46 636A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to death pension benefits. ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from January 1954 to January 1959. He died on November [redacted], 2000. The appellant is the Veteran's surviving spouse. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Virtual VA file includes no additional pertinent documents for consideration in support of this claim. FINDING OF FACT Effective July 9, 2007 and through all subsequent annualization periods, the appellant's countable annual family income exceeded the maximum annual pension rate (MAPR) allowed by law for the payment of VA death pension benefits. CONCLUSION OF LAW The criteria for entitlement to death pension benefits are not met. 38 U.S.C.A. §§ 101, 1503, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). These requirements involve VA's duties to notify a claimant of the evidence needed to substantiate a claim and to assist a claimant in the development of that claim. However, in a case such as this, where the claim is being denied as a matter of law, the VCAA's provisions are inapplicable. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (where the underlying facts or development of the facts is dispositive of the matter, the VCAA's provisions are inapplicable). See also Smith v. Gober, 14 Vet. App. 227, 230-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); VAOGCPREC 5-2004 (June 23, 2004). Analysis The Veteran served from January 1954 to January 1959, including during peacetime and for in excess of 90 days during wartime. He died in late 2000. The appellant claims entitlement to death pension benefits on the basis of her status as the Veteran's surviving spouse with one dependent of adult age who is seriously disabled. She asserts that a grant of such benefits is appropriate given that, after the Veteran's death, she spent her life savings of $2,400 on his funeral. She points out that she is living with her daughter, but would like to move out. She claims that she is a diabetic with other health problems and associated medical costs. She contends that she receives $369 monthly and has no health insurance. She further contends that the only reason she is surviving is because her daughter pays the $800 rent for the place in which they both live. Allegedly the appellant uses all of their money to pay bills, including water, heat, cooking gas and electric, telephone, clothing, laundry, hygiene products, food, transportation and medical bills. Subject to income limitations, death pension is available to the "surviving spouse" of a veteran in the event of a nonservice-connected death provided the veteran served for the required period of time during wartime. 38 U.S.C.A. §§ 101, 1521(j), 1541 (West 2002); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5), (2012). Basic eligibility exists if, among other things, the surviving spouse's income does not exceed the applicable MAPR specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 U.S.C.A. § 1521 (West 2002); 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 accorded 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. To calculate the monthly pension benefit, VA subtracts the total amount of countable annual family income in one year, less excluded income, from the MAPR for that year, then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. See 38 U.S.C.A. §§ 1503, 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.23(b), 3.273(a) (2012); see also Martin v. Brown, 7 Vet. App. 196, 198 (1994). When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount. See 38 C.F.R. § 3.273(b)(1) (2012). When a change in income occurs, the MAPR will be reduced by the new annualized income, effective on the date of the increased income. 38 C.F.R. § 3.273(b)(2) (2012). Fractions of dollars will be disregarded in computing annual income. See 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 it was received, except for listed exclusions. See 38 U.S.C.A. § 1503(a) (West 2002); 38 C.F.R. § 3.271(a) (2012). Income from Social Security Administration (SSA) benefits is not specifically excluded under 38 C.F.R. § 3.272 and therefore is included as countable income. The types of income excluded from countable income for VA pension purposes include 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. See 38 C.F.R. § 3.272. 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. See 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 through an insurance company. 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. See 38 C.F.R. § 3.271(a)(1). Nonrecurring income (income received on a one-time basis), such as the surviving spouse benefit for the month of the veteran's death, will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. See 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. See 38 C.F.R. § 3.273(c). As of December 1, 2006, the MAPR for a Veteran with one dependent was $9,594. Medical expenses were to excess exceed five percent of this amount, or $479. As of December 1, 2007, the MAPR for a Veteran with one dependent was $9,815. Medical expenses were to exceed five percent of this amount, or $490. As of December 1, 2008, December 2009 and December 2010, the MAPR for a Veteran with one dependent was $10,385. Medical expenses were to exceed five percent of this amount, or $520. As of December 1, 2011, the MAPR for a Veteran with one dependent was $10,759. Medical expenses were to exceed five percent of this amount, or $537. 38 C.F.R. § 3.23(a)(1); M21-1, Part I, Appendix B; http://benefits.va.gov/PENSIONANDFIDUCIARY/pension/rates_survivor_pen09.asp. The Veteran had the requisite wartime service in this case (over 90 days) such that the appellant, recognized as his surviving spouse, meets certain basic eligibility criteria for VA death pension benefits. The RO denied her claim due to excessive annual family income. According to her application for such benefits, both she and her daughter are in receipt of SSA benefits ($527 monthly benefits for the appellant and $825 monthly benefits for her alleged dependent daughter in 2007). The RO attempted to develop this claim by asking the appellant to provide more comprehensive income information for multiple annualization periods extending from July 2007 to December 2012, including medical expenses, information on whether her daughter might be considered a helpless child, and an application excluding her daughter's income from countable annual family income. The appellant did not respond. Therefore, as the record stands, VA has limited knowledge of the appellant's financial status, including the SSA income she and her daughter receive and the $2400 she paid for the Veteran's funeral. During the annualization year extending from July 9, 2007, the appellant's annual family income minus funeral expenses exceeded the MAPR by approximately $2,500 ($14,484 - $2,400 or $12,084 versus the applicable MAPR of $9,594). During all subsequent annualization years, her annual family income exceeded the MAPRs by an even greater amount. The Board has considered the appellant's assertions that she should be awarded death pension as she has medical problems and struggles financially. However, the duty to assist is not a one-way street; a claimant cannot remain passive when he or she has relevant information that might substantiate a claim. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the veteran, not a duty to prove his claim while the veteran remains passive); Wood v. Derwinski, 1 Vet. App. 190 (1991). And in this case, with the only information available, the Board must deny the pension benefits as a matter of law on the basis that the appellant's income exceeds all applicable MAPRs since 2007. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appellant has provided the Board no information to conclude otherwise. ORDER Entitlement to death pension benefits is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs