Citation Nr: 1326551	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  09-13 934	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a burial allowance and a plot/interment allowance.

2.  Whether the appellant's income is excessive for the receipt of nonservice-connected death pension benefits.   


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel

INTRODUCTION

The Veteran had active service in the United States Army from June 1946 to June 1947.  The Veteran died in October 1996, and the appellant is his surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2007 and June 2007 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  Jurisdiction of case has since been transferred to the RO in Nashville, Tennessee.  

In an October 2009 report of contact, the appellant requested a hearing before the Board.  However, a May 2013 statement from the appellant's representative noted that she had since withdrawn her hearing request.  Therefore, there is no outstanding request for a hearing.  See 38 C.F.R. § 20.704(e) (2012).  

A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1.  The Veteran died of nonservice-connected causes and was buried in a private cemetery in October 1996. 

2.  The appellant's application for burial benefits was received by VA in January 2007, which was more than two years after the burial of the Veteran's remains.  The death certificate confirms that the Veteran died at a non-VA facility and was not buried in a national cemetary.

3.  The appellant's countable annual family income for a surviving spouse with no dependents, minus unreimbursed medical expenses and the Veteran's burial expenses, exceeds the maximum annual pension rate (MAPR) for death pension benefits for the February 2007 to February 2008 annualization period.


CONCLUSIONS OF LAW

1.  The criteria for VA burial benefits have not been met.  38 U.S.C.A. §§ 2302, 2303, 2304 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1600, 3.1601 (2012).

2.  The criteria for entitlement to nonservice-connected death pension benefits are not met.  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 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

The Board acknowledges that proper VCAA notice was not provided to the appellant for either the burial benefits or death pension issues on appeal.  However, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (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 (2001); VAOGCPREC 5-2004 (June 23, 2004).  As will be discussed below, the appellant's claim for burial benefits must be denied because she did not file a claim in a timely matter.  As such, her claim is being denied as a matter of law.  With regard to nonservice-connected pension benefits, the appellant has not disputed the facts regarding her income.  Rather, she contends that her reported income is insufficient to live on, which suggests a disagreement with the law rather than the facts.  Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist, as the underlying law is dispositive for both claims at issue.   


Background Facts

In this case, the Veteran died in October 1996.  The Veteran died at a private hospital.  His death was due to nonservice-connected causes, to include cardiac arrest, coronary artery disease, insulin dependent diabetes mellitus, and aspiration pneumonia.  The Veteran was buried at Rose Hills Memorial Park, which is a private cemetery.  The appellant filed an Application for Death and Indemnity Compensation (DIC) and Death Pension (VA Form 21-534) and an Application for Burial Benefits (VA Form 21-530) in January 2007.  


Governing Laws and Regulations for Burial and Plot Allowance

A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a Veteran and the expense of transporting the body to the place of burial.  38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600.  If a Veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid.  38 C.F.R. § 3.1600(a) (2012).

If a Veteran's death is not service-connected, payment may be made toward the Veteran's funeral and burial expenses, including transportation, subject to the following conditions: (1) at the time of death the Veteran was in receipt of pension or compensation (or but for the receipt of military retired pay would have been in receipt of such); or (2) the Veteran had an original or reopened claim pending for either pension or compensation at the time of death, and there was on the date of death sufficient evidence in the claims file to have supported an award; or (3) the Veteran served during a period of war, or was discharged or released from active service for a disability incurred or aggravated in the line of duty, and his or her body is being held by a State, and there is no next of kin claiming the body and there are insufficient resources in the Veteran's estate to cover burial and funeral expenses.  38 C.F.R. § 3.1600(b) (2012).

Expenses are also payable if a Veteran dies from nonservice-connected causes while hospitalized by VA, which requires either hospitalization at a VA facility or at a non-VA facility pursuant to VA directive for acute medical care.  38 C.F.R. § 3.1600(c) (2012).  Hospitalization also includes residence at a domiciliary or nursing home under VA authority.  Expenses are also payable if the Veteran died while traveling pursuant to VA authorization and at VA expense for the purpose of examination, treatment, or care.  38 C.F.R. § 3.1605(a) (2012).

In addition to a burial allowance, VA will also pay for a plot or interment allowance, in certain cases, when a Veteran dies from nonservice-connected causes. 38 C.F.R. § 3.1600(f) (2012).  See also 38 U.S.C.A. § 2303(b).

Claims for a burial allowance may be executed by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses."  38 C.F.R. § 3.1601(a)(1).

Claims for burial and funeral expenses and plot or interment allowance must be filed within two years after the burial of the Veteran.  38 U.S.C.A. § 2304; see also 38 C.F.R. § 3.1601(a) (requiring that claims for reimbursement or direct payment of burial and funeral expenses under § 3.1600(b) and plot or interment allowance under § 3.1600(f) must be received by VA within two years after the permanent burial or cremation of the body).  This time limit does not apply to claims for service-connected burial allowance or for the cost of transporting a Veteran's body to the place of burial when the Veteran died while properly hospitalized by VA, or for burial in a national cemetery.  38 C.F.R. § 3.1601(a).  If a claimant's application is incomplete at the time it is originally submitted, VA shall notify the applicant of the evidence necessary to complete the application.  If such evidence is not received within one year from the date of such notification, no allowance may be paid.  Id. 


Analysis - Burial and Plot Allowance

In the instant case, service connection has not been established for the cause of the Veteran's death, and according to the appellant's January 2007 Application for Burial Benefits (VA Form 21-530), she is not claiming that the Veteran's cause of death was related to service.  Therefore, the provisions relating to service-connected burial allowance are inapplicable.  See 38 C.F.R. § 3.1600(a).   

In any event, the appellant's January 2007 claim for nonservice-connected burial benefits was not timely filed.  Nor do any of the provisions exempting the two-year filing date apply in this case.  See 38 C.F.R. § 3.1601(a).  Specifically, the Veteran died in October 1996 and was buried shortly thereafter.  The claims folder does not contain a timely claim for burial benefits received by VA within two years after the Veteran's burial.  The appellant did not file a claim for burial benefits until January 2007, which was more than 10 years after the Veteran's burial.  As noted above, the Veteran did not die of a service-connected disability.  In addition, the Veteran did not die while hospitalized by VA.  Furthermore, the death certificate shows that the Veteran died at a non-VA facility and was not buried in a national cemetary.   Therefore, none of the exceptions to the two-year rule apply here.  

The appellant contends in a September 2011 statement that she originally filed a timely application for burial benefits shortly after the Veteran's death in October 1996, but VA lost the necessary paperwork.  However, a review of the claims file reveals no such application.  In fact, the record does not include any type of application filed by her prior to the January 2007 burial application on appeal.  Notably, in her January 2007 Application for DIC and Death Pension (VA Form 21-534), the appellant specifically denied ever having filed a prior claim with the VA.  Thus, her own inconsistent statement weighs heavily against her assertion regarding the existence of a prior burial benefits claim.  The Board emphasizes that credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  Personal interest also may affect the credibility of the evidence.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

Although the appellant may have been unaware of the requirement that a claim for burial benefits be submitted within two years of the Veteran's permanent burial or cremation of the body, the absence of such knowledge cannot serve as the basis for an award of benefits.  Morris v. Derwinski, 1 Vet. App. 260 (1991); Velez v. West, 11 Vet. App. 148 (1998).  Persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265.  In addition, government benefits can only be paid as authorized by Congress.  O.P.M. v. Richardson, 496 U.S. 434 (1990).  Congress has authorized the payment of burial benefits only when a claim is received within two years of the Veteran's permanent burial or cremation of the body.

In summary, entitlement to burial benefits is strictly prefaced on specific statutory and regulatory conditions.  The Board finds that such conditions have not been met in this case.  The appellant failed to file a timely request for burial benefits, and thus, such benefits are not warranted.  The Board has no authority to grant claims on an equitable basis and must follow the applicable provisions of law.  See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  In such a case, where the law is dispositive, the claim must be denied due to a lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


Governing Laws and Regulations for Death Pension

Death pension is available to the "surviving spouse" of a Veteran because of his nonservice-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).  

Basic entitlement to death pension exists if, among other things, the surviving spouse's income is not in excess of the applicable maximum annual pension rate (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 & Supp. 2012); 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 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 for the following 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 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 specifically excluded under 38 C.F.R. § 3.272, nor is the income of a child in the custody of the surviving spouse.  In fact, the surviving spouse's annual income includes the annual income of the surviving spouse and the Veteran's children in her custody.  38 C.F.R. § 3.23(d)(5).  Such incomes are, therefore, included as countable income.

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.  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.

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 pension purposes must be deducted in the year in which they occurred.  Id.  Accordingly, should the expenses reduce the income below zero, the remaining expenses will not count against the next year's 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).  
For the purpose of determining initial entitlement, or for resuming payments on an award which was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve.  38 C.F.R. § 3.273(a).  In essence, the Board subtracts the total amount of countable income in one year 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.  When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount.  38 C.F.R. § 3.273(b)(1).  When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began.  38 C.F.R. § 3.273(b)(2). 

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).  Five percent of this amount is $366.

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).  Five percent of this amount is $375.





Analysis - Death Pension

Initially, with regard to basic eligibility for death pension, the record reveals that the Veteran has the requisite wartime service, the appellant has the minimal net worth for pension, and the Veteran's death was nonservice-connected.  See 38 C.F.R. § 3.3(b)(4).  Despite meeting these basic criteria for death pension, in a May 2007 decision, the RO denied death pension benefits because the appellant's annual countable income exceeded the MAPR.  The appellant is in receipt of SSA benefits, as well as survivor benefits from the L.A. County Employees Retirement Association (LACERA), which prevented eligibility for VA pension benefits due to excessive income, even when deducting the Veteran's burial expenses and the appellant's unreimbursed medical expenses in excess of 5 percent of the MAPR.  

The appellant has contended that her living expenses and her own total disability mean that her current income is not sufficient on which to live.  She has stated that her expenses increase every year.  See July 2007 Notice of Disagreement (NOD).  

The appellant filed her Application for DIC and Death Pension (VA Form 21-534) in January 2007.  Therefore, for purposes of determining the initial entitlement to death pension, the Board will consider the 12-month annualization period from February 1, 2007, through February 1, 2008, beginning on the first day of the month after her death pension claim was filed.  See 38 C.F.R. §§ 3.31, 3.273.  In doing so, the Board will consider both the December 1, 2006, and December 1, 2007 MAPRs in determining the appellant's entitlement to death pension.

Upon review of the evidence, for the February 2007 to February 2008 annualization period, the appellant's countable family income was in excess of the applicable VA pension rate for death pension.  Because the appellant's income is excessive, she is not legally entitled to death pension benefits for the February 2007 to February 2008 annualization period. 

With regard to income, for the period from February 2007 to February 2008, the appellant submitted a February 2007 SSA letter showing that her SSA surviving spouse benefits of $1,068 a month as of December 1, 2006.  Thus, the appellant's SSA income for this 12-month annualization period was $12,816 total ($1,068 x 12 months).  The appellant also reported $12,648 in LACRA survivor benefits for this 12-month annualization period ($1,054 x 12 months).  Additional correspondence from LACRA dated in 2006 shows that her monthly gross allowance was $1,168.32, which equates to $14,019.84 annually.  It was also noted that there could be a cost-of-living increase in the allowance, which is reviewed in April every year.  

Consequently, for the 12-month annualization period from February 2007 to February 2008, the appellant's total annual income was at least $25,464 total ($12,816 + $12,648).  

With regard to expenses, for the period from February 2007 to February 2008, the appellant submitted a February 2007 SSA letter showing that, as of December 1, 2006, she paid unreimbursed Medicare Part B premiums of $93.50 a month.  The total for these medical expenses is $1,122 for the year ($93.50 x 12 months).  However, medical expenses can only be deducted that are in excess of five percent of the MAPR.  Here, the total for medical expenses ($1,122) exceeds five percent of the MAPR ($366).  Subtracting this amount ($1,122 - $366) reveals medical expenses above five percent of the MAPR totaling $756.  This is the amount that can be deducted from income.

With regard to expenses, for the period from February 2007 to February 2008, the appellant reported that she pain $7,000 in burial and funeral expenses for the Veteran.  See January 2007 burial benefits claim.  She also submitted various receipts.  Thus, the total amount of burial expenses that can be deducted from income is $7,000.

Consequently, for the 12-month annualization period from February 2007 to February 2008, the appellant's total expenses that can be deducted were $7,756 total ($756 + $7,000).   As such, the appellant's final countable income (income - deductible expenses) from February 2007 to February 2008 was at least $17,708 total ($25,464  - $7,756).  Thus, from February 1, 2007, to February 1, 2008, the surviving spouse's countable income ($17,708) clearly exceeded the applicable December 1, 2006, MAPR ($7,329) for death pension for a surviving spouse with no dependents.  In addition, the surviving spouse's countable income ($17,708) also exceeded the applicable December 1, 2007, MAPR ($7,498) for death pension for a surviving spouse with no dependents.  Thus, the appellant is not entitled to VA death pension benefits for this time period, due to excessive income.  Her claim for death pension benefits was properly denied by the RO.  

The Board observes that a review of the claims folder does not reveal that any additional financial information was submitted by the appellant subsequent to the information submitted for the 2007 to 2008 timeframe.  In a May 2007 death pension denial letter, the RO requested that the appellant provide details for her medical expenses by way of an enclosed Medical Expense Report (VA Form 21-8416) and an Improved Pension Eligibility Verification Report or EVR (VA Form 21-0518-1).  The RO also included Eligibility Verification Report Instructions (VA Form 21-0510).  Despite these efforts by the RO, there is no indication the appellant completed and submitted these forms.  The RO also advised the appellant to submit any updated information if circumstances change, such as a drop in income or an increase in medical expenses.  Nonetheless, the appellant has not provided any recent, pertinent financial information in response.  The appellant also cancelled a hearing scheduled for May 2013 where she may have provided more current financial information.  Thus, despite the RO's efforts, the appellant failed to respond and provide any recent evidence of additional income or medical expenses information.  The duty to assist is not a one-way street; a claimant cannot remain passive when he or she has relevant information.  See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist a claimant, not a duty to prove his or her claim while the claimant remains passive); accord Wood v. Derwinski, 1 Vet. App. 190 (1991).

The Board is sympathetic to the appellant's claim and her particular circumstances, including any financial difficulties.  However, the appellant's countable income must be less than the annual death pension rate determined by law.  The governing criteria are explicit in that regard.  VA is bound by the applicable law and regulations as written.  38 U.S.C.A. § 7104(c).  Here, for the 12-month annualization period from February 2007 to February 2008, the appellant's countable income was in excess of the applicable pension rate for death pension.  Therefore, the appellant is not legally entitled to death pension benefits.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).   


ORDER

Entitlement to a burial allowance and a plot/interment allowance is denied.  

Entitlement to nonservice-connected death pension benefits is denied. 



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs