Citation Nr: 1332575	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  09-29 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Paul, Minnesota



THE ISSUE

Propriety of termination of the nonservice-connected death pension benefits.   



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from May 1964 to May 1966.  He died in September 1988.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 determination by the RO Pension Management Center to terminate the appellant's death pension benefits, effective on May 1, 2009.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
  


FINDING OF FACT

The appellant's income for 2009 less medical expenses is shown to have exceeded the maximum countable income allowable for receipt of death pension benefits.



CONCLUSION OF LAW

The termination of the appellant's nonservice-connected death pension benefits was proper.  38 U.S.C.A. §§ 1541, 1543 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the appellant in correspondence from the RO dated in July 2008 and April 2009.  

These letters notified the appellant of VA's responsibilities in obtaining information to assist the appellant in completing her claims and identified the appellant's duties in obtaining information and evidence to substantiate her claims.  (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006).

The appellant has been made aware of the information and evidence necessary to substantiate her claim and has been provided opportunities to submit such evidence.  

The RO has properly processed the appeal following the issuance of the required notice.  Moreover, all pertinent development has been undertaken and all available evidence has been obtained in this case.  

Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  No further action is necessary for compliance with VCAA.  



Analysis

The appellant is the surviving spouse of a Veteran who had qualifying wartime service; as such, she was entitled to (and prior to May 1, 2009, received) a rate of pension set by law, reduced by the amount of her countable income.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.

The appellant contends that she is entitled to restoration of her VA death pension benefits based on the Veteran's service.  She feels that, as his surviving spouse, termination of her VA death pension benefits was improper.

VA death pension, however, is an income-based benefit, for low income qualifying survivors of deceased Veterans.  Specifically, the maximum rate of death pension benefits that may be paid is set by law.  An otherwise qualifying claimant will be paid up to the maximum rate, reduced by the amount of her countable income.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.  

In other words, any countable income of the appellant will reduce the pension benefits, dollar for dollar, by the amount of the income.  Thus, if the appellant's annual income exceeds the maximum payable rate, the entire amount is offset, and the appellant is not entitled to any death pension benefits.  

The maximum amount for 2009 was $7,933 per year, or about $661 per month.  If her income from other sources exceeded that amount, she was not entitled to death pension.  

In determining income for purposes of entitlement to death pension, payments of any kind from any source are counted as income during the 12-month period in which they are received unless specifically excluded under 38 C.F.R. § 3.272; 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271.  

Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272.  Such income is therefore included as countable income.  

The appellant's Social Security Administration income in 2009 was noted to have been $1,624.00 per month or $19,488.00 per year, which is substantially in excess of the maximum annual pension rate of $7,933 for 2009. 

Any medical expenses in excess of five percent of the maximum annual pension rate ($7,933 for 2009), 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).

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. 

The medical expenses to the extent they exceed five percent of the maximum annual pension rate are deducted from income. Effective December 2008, five percent of the maximum annual pension rate is $397.00.

The appellant's submitted medical expenses for 2009 totaling to the amount of $2,416.40. Thus, the appellant's unreimbursed medical expenses to be deducted from her income totaled $2,019.40 ($2,416.40 {reported medical expenses} minus $397 {five percent of the maximum annual pension rate}).  

In this case, $19,488.00 (SSA income for 2009) minus $2,019.40 (unreimbursed medical expenses) equals $17,468.00 of countable income, which also is substantially in excess of the maximum annual pension rate of $7,933 for 2009.

Based on the evidence of record, the appellant's income is above the maximum allowable for death pension purposes.  Under these circumstances, termination of the VA death pension benefits was proper.  

While the Board is sympathetic to the appellant's loss and recognizes the Veteran's honorable service to his country, it is bound by the law and regulations governing the payment of VA benefits. Because Congress prohibits the payment of VA death pension to those whose countable income exceeds statutory limits, and the appellant's income exceeds those limits, she is not legally entitled to VA death pension benefits.

The appellant should understand that if her income decreases, or the amount of her unreimbursed medical expenses increases, she may reapply for benefits.



ORDER

The termination of the appellant's nonservice-connected death pension benefits was proper.   



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals



Department of Veterans Affairs