Citation Nr: 1330229 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-21 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant's receipt of Philippine Veterans Affairs Office (PVAO) Old Age Pension-Surviving Spouse was properly considered income for Department of Veterans Affairs (VA) purposes. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1918 to July 1920, from August 1920 to August 1926, and from December 1944 to June 1946. The Veteran died in February 1986. The appellant is the Veteran's surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 determination of the Manila, Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which determined the appellant's nonservice-connected death pension, effective June 1, 2009, based to the appellant's receipt of benefits from the Philippine Veterans Affairs Office (PVAO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant has been receiving VA death pension benefits since 1986. 2. The appellant has been receiving additional monthly income from the Philippine Veterans Affairs Office (PVAO) in the form of Old Age Pension-Surviving Spouse since April 1994. 3. The appellant's PVAO pension is income for the purposes of VA death pension. 4. VA considered the appellant's PVAO pension as income when determining the proper VA death pension benefit amount in the May 2011 award letter. CONCLUSION OF LAW The appellant's PVAO pension was properly considered as income for the purposes of determining the amount of death pension benefits to which she was entitled on May 1, 2011. 38 U.S.C.A. §§ 101, 1501, 1503, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3, 3.261, 3.262, 3.271, 3.272 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the notice described above is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Insofar as VA has a duty to assist the claimant in the development of the claim, the Board notes that such development appears to be complete. Unlike many questions subject to appellate review, the issue of whether a certain type of payment is considered countable income for the purpose of death benefits, by its very nature, has an extremely narrow focus. The facts underlying this case, as detailed below, do not appear to be in dispute. Here, the only evidence necessary to decide the claim revolves around the proper characterization of the appellant's Philippine Veterans Affairs Office (PVAO) Old Age Pension-Surviving Spouse benefits. The claims file contains the relevant records, as well as the appellant's lay statements. The appellant does not assert that there is additional evidence to be obtained or that there is a request for assistance that has not been acted on. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The evidence of record reveals that the Veteran died in February 1986. The appellant, his surviving spouse, filed a claim of entitlement to death pension benefits after his death. She was granted improved death pension benefits and has been in receipt of them since 1986. The amount of this benefit has been adjusted several times during the intervening years. These adjustments have been accompanied by notice letter that advised the appellant of her continued obligations as a pension recipient to promptly notify VA of any changes in her income. Over the years, the appellant notified VA of her annual income. In April 1994, the appellant began receiving additional monthly income from the Philippine Veterans Affairs Office (PVAO) in the form of Old Age Pension-Surviving Spouse. See January 1998 form completed by PVAO, January 1998 PVAO Certification. The appellant began reporting that additional income in her February 1998 VA Form 21-0518, Improved Pension Eligibility Verification Report (Surviving Spouse with No Children) (hereinafter "EVR"). This additional income caused an overpayment of the appellant's benefits and resulted in indebtedness. In a June 1998 letter, the appellant stated that she had understood her PVAO benefits to not be considered income. That debt has since been resolved and is not before the Board. In June 2011, the appellant disagreed with her adjusted death pension benefit as described in a May 2011 award letter. Specifically, the appellant stated that her PVAO pension had been erroneously counted as income in her EVR and that she wanted reconsideration of her benefit. She has also sought restitution for the amount of overpayment that was collected based on her PVAO pension beginning in 1994. The appellant has characterized this as a "death gratuity" that should not be considered countable income. See July 2012 VA Form 9. Thus, the question at hand is quite simply whether the appellant's PVAO pension is countable income for the purposes of VA improved death pension benefits. The law provides that the Secretary shall pay to the surviving spouse of each veteran who served for ninety (90) days or more during a period of war or who at the time of death was receiving or entitled to receive compensation or retirement pay for a service-connected disability pension at the rate prescribed by law and reduced by the surviving spouse's annual income. 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23. For purposes of improved death pension, payments of any kind from any source are counted as income in the year in which received unless specifically excluded. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271 (emphasis added). As the appellant's PVAO pension is a payment, the question then becomes whether it is the type of payment that is specifically excluded from computation of the appellant's countable income. The appellant has characterized her PVAO pension as a death gratuity. Under 38 C.F.R. § 3.261, income from a six-months' death gratuity is entitled to special consideration. A death gratuity is a payment made by the United States Department of Defense to survivors of a service member who dies while on active duty, active duty for training, inactive duty for training, or travel directly to or from such activity; or within 120 days of his or her discharge from active duty, inactive duty for training, or travel directly to or from such activity. See 10 U.S.C.A. §§ 14751, 1476. At the time of his death, the Veteran had not service on active duty or inactive duty for several decades. Thus, the Veteran's death would not entitle the appellant to a death gratuity from the Department of Defense. Additionally, this PVAO benefit has been continuously administered for nearly twenty years, which far exceeds the six-months' death gratuity contemplated under this regulation. Finally, in its January 1998 Certification, PVAO characterized this appellant as "a regular pensioner of this office," not a recipient of a gratuity. Thus, the appellant's PVAO pension is not a death gratuity within the meaning of the applicable regulations. The types of income which are excluded from computation of the appellant's countable income are set forth under 38 C.F.R. § 3.272. That regulation specifically excludes 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. The appellant's PVAO pension is not mentioned on this list. Additionally, the appellant has not shown that the PVAO pension benefit is a welfare benefit, maintenance benefit, VA pension benefits, casualty loss reimbursement, profit from the sale of property, Domestic Volunteer Service Act Programs payments, distribution of funds under 38 U.S.C. § 1718, Agent Orange settlement payment, restitution to individuals of Japanese ancestry, cash surrender value of a life insurance policy, income received by American Indian beneficiaries from trust or restricted lands, Radiation Exposure Compensation Act payment, or an Alaska Native Claims Settlement Act payment. The phrase "survivor benefit annuities" is somewhat similar to the "death gratuity" characterization that the appellant uses to describe her PVAO pension. As the appellant is not expected to know the specific terms of art used in VA regulations, the Board has also considered whether her PVAO pension can be excluded from her countable income as a survivor benefit annuity. In this regard, VA regulations specifically define the phrase "survivor benefit annuities" as "Annuity paid by the Department of Defense under the authority of section 653, Public Law 100-456 to qualifying surviving spouses who died prior to November 1, 1953." 38 C.F.R. § 3.272(n). In this case, the PVAO pension is not an annuity paid by the Department of Defense. Moreover, the Veteran died after November 1, 1953. Thus, the appellant's PVAO pension is not a survivor benefit annuity. Therefore, it is not excludable income under 38 C.F.R. § 3.272. As this payment was not excludable income, VA's determination of death pension benefits based on consideration of the PVAO pension as income was proper. The positive and negative evidence is not in equipoise. Therefore, the doctrine of the benefit of the doubt is not applicable. 38 U.S.C.A. § 5107(b). ORDER The appellant's receipt of Philippine Veterans Affairs Office (PVAO) Old Age Pension-Surviving Spouse was properly considered income for VA death pension purposes; therefore, the appeal is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs