Citation Nr: 1333790	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  10-08 524A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUE

Entitlement to death pension benefits.

	REPRESENTATION

Appellant represented by: National Association for Black Veterans, INC

WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel
INTRODUCTION

The Veteran served on active duty from May 1941 to December 1945.  The appellant seeks surviving spouse death pension benefits.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision by the Department of Veterans Affairs (VA) Milwaukee Pension Management Center (Pension Center), in Milwaukee, Wisconsin, which denied the benefits sought on appeal.  

In April 2013, the appellant testified at a videoconference Board hearing before the undersigned Acting Veterans Law Judge.  A transcript of the hearing is in the record.  The evidentiary record was held open for 60 days to allow the appellant to submit any additional evidence.  To date, no additional evidence has been received.

The record contained an August 2009 VA form 21-22, showing that the appellant had appointed the National Association for Black Veterans, Inc., as her representative of record.  At the April 2013 hearing, the appellant was accompanied by a representative of the Veterans of Foreign Wars, and she expressed her desire to appoint said service organization as representative after the hearing.  The record was held open for 60 days for her to submit this additional documentation, but nothing was submitted.  In a September 2013 letter the Board advised the appellant of these facts and indicated that it was unable to resolve the issue of representation.  The letter advised the appellant to respond to the letter to clarify who she wished to have as her representative and that if she did not respond, the Board would presume she wished to represent herself.  The appellant did not respond to this letter.  Accordingly, the Board will presume the appellant wishes to represent herself in this appeal.  


FINDING OF FACT

The appellant's countable income minus unreimbursed medical expenses for all periods pertinent to her claim exceeds the maximum annual income limitations for death pension benefits. 
CONCLUSION OF LAW

The appellant does not meet the income criteria for death pension benefit.  38 U.S.C.A. §§ 1541, 1543 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271-3.277 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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, 3.326(a) (2013). 

VA should notify the claimant of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3).

Through correspondence in August 2010 and February 2011, the Pension Center notified the appellant of elements for death pension benefits, and the evidence needed to establish each element.  This document served to provide notice of the information and evidence needed to substantiate the claim.

VA's letter notified the appellant of what evidence she was responsible for obtaining, and what evidence VA would undertake to obtain.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b).  VA informed her that it would make reasonable efforts to help her get evidence necessary to support her claim, particularly, if she gave VA enough information about such records so that VA could request them from the person or agency that had them. 
The appellant was not provided with notice of the type of evidence necessary to establish a disability rating or to assign an effective date for any disability on appeal.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby).  This is not prejudicial to the appellant as death pension benefits are not granted herein. 

Further, in April 2013 the appellant was provided an opportunity to set forth her contentions during a hearing before a member of the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans law Judge (VLJ) who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

Here, during the April 2013 Board hearing, the AVLJ identified the issue on appeal. Also, information was solicited regarding the appellant's income and expenses.  The testimony reflects that there were allegations of outstanding financial records available that would be submitted after the hearing and the record was held open for 60 days for submission of that evidence.  The AVLJ noted that the claim had been denied because of excessive income and that documentation of medical expenses would be helpful in substantiating her appeal.  Therefore, not only was the issue "explained... in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim[s]" were also fully explained.  See Bryant, 23 Vet. App. at 497.  As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

There is no indication that any additional action is needed to comply with the duty to assist the appellant.  The Pension Center obtained copies of records pertinent to the appeal, including a Social Security records, certificate of death, the Veteran's discharge personnel form, and a certificate of marriage.  The appellant has provided income and medical expense information.  VA has sent multiple letters to the appellant explaining that she needs to submit information on her income and expenses.  Additionally, as noted, the undersigned explained in the April 2013 Board hearing that the appellant's claim was denied because of excessive income and suggested that the appellant submit evidence of medical expenses.  In fact the undersigned held the record open for 60 days for the appellant to do so.  In spite of all of these requests, the appellant has only submitted the limited financial information which is discussed in the decision below.  Given that the appellant has been provided multiple opportunities to submit additional financial evidence and has not done so, the Board finds that VA has met its duty to assist and that further delay in adjudication in order to once again attempt to obtain additional financial documentation would be futile. 

Given these facts, it appears that all available records have been obtained.  There is no further assistance that would be reasonably likely to assist the appellant in substantiating the claim.  38 U.S.C.A. § 5103A(a)(2).

Death Pension

The appellant is seeking death pension benefits as a surviving spouse who does not have dependent children.  

Death pension benefits are generally available for surviving spouses, as a result of the Veteran's non-service connected death.  38 U.S.C.A. § 1541(a).  An appellant is entitled to these 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, if the appellant meets specific income and net worth requirements.  See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). 

The Veteran in this case served on active duty from May 1941 to December 1945, which included service during the World War II.  The Veteran died in November 1999.  Thus, as the Veteran served for 90 days or more, part of which was during a period of war, in order to be entitled to non-service connected death pension benefits, the appellant must only meet the specific income and net worth requirements as of the date her claim for benefits was received.  See 38 U.S.C.A. 
§ 1541; 38 C.F.R. § 3.3(b)(4). 

A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of countable income.  38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.  In determining the surviving spouse's annual countable family income, payments of any kind from any source shall be counted as income during the twelve-month annualization period in which received, unless specifically excluded.  See 38 U.S.C.A. § 501; 38 C.F.R. §§ 3.271, 3.272(a).  Recurring income means income which is received or anticipated in equal amounts and at regular intervals (e.g., weekly, monthly, quarterly, etc.) and which will continue throughout an entire 12-month annualization period.  The amount of recurring income for pension purposes will be the amount received or anticipated during a 12-month annualization period.  See 38 C.F.R. § 3.271(a)(1) (2012).  Whenever there is a change in the maximum annual pension rate, or in the surviving spouse's family income, the monthly rate of pension payable shall be adjusted effective the date of change.  See 38 U.S.C.A. § 501; 38 C.F.R. § 3.273.

Exclusions from income include the expenses of the Veteran's last illness and burial and for the Veteran's just debts, debts not incurred to secure real or personal property, if paid by the appellant.  38 C.F.R. § 3.272(h).  Such expenses may be deducted only for the 12-month annualization period in which they were paid.  38 C.F.R. § 3.272(h).  Exclusions from income do not include Social Security disability benefits.  38 C.F.R. § 3.272.  Such income is therefore included as countable income. 

Medical expenses in excess of five percent of the maximum income rate allowable, 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 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. 

The total maximum annual pension rates (MAPR) for a surviving spouse with no dependents, as of December 1, 2008, December 1, 2009, December 1, 2010, and December 1, 2011, was $7,933.  See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B.  Five percent of this amount is $397 for purposes of medical expenses eligible for exclusion.

As of December 1, 2012, the MAPR as to death pension for a surviving spouse without a dependent child was $8,220.  See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B.  Five percent of this amount is $411 for purposes of medical expenses eligible for exclusion.

The MAPR for calendar year 2013 as to death pension for a surviving spouse without a dependent child is $8,359.  See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B.  Five percent of this amount is $416 for purposes of medical expenses.            

For awards of nonservice-connected death pension benefits based on claims received on or after December 10, 2004, the effective date is the first day of the month in which the Veteran's death occurred if the claim is received within one year after the date of death; otherwise, it is the date of receipt of the claim.  38 C.F.R. 
§ 3.400(c)(3) (2012).  The appellant filed her claim for non-service connected death pension benefits in March 2009.  Hence, the relevant time period for review is from March 2009 to the present.

During the course of the appeal, the appellant did not report that she had any dependents.  Social Security Administration (SSA) confirmed that the appellant's gross monthly income was $974.40, effective December 2, 2008, which equals $11,692.80 of annual income.  The appellant provided evidence of annual medical expenses in the amount of $1,156.00 in Medicare Part B for March 2009 to March 2010.  She also reported $326.93 in prescription costs from March 2009 to March 2010.  As mentioned above, the record was held open by the undersigned for 60 days for the appellant to submit evidence of any additional medical expenses, but she did not submit any additional evidence.  It is unclear how much additional retirement income the appellant receives.  Various handwritten documents indicate that she receives some sort of retirement pay ranging in amounts from $101.66 to $356.76 a month, gross, which would amount to an annual income ranging from $1212.00 to $4,389.12.  

Even if it is assumed that the appellant's retirement pay is only $101.66 a month, as she contends in certain statements, her annual income would still be $12,904.80, far in excess of the annual MAPR at any point during the appeal period.  

Additionally, even assuming the medical expenses for Medicare ($1,156.00) and the prescription costs incurred from March 2009 to 2010 ($326.93) were excludable, she would still exceed the income limit.  For instance, for the initial time period where five percent of the MAPR was $397, the appellant's countable income is still $11,818.87 ($1,482.93 [total medical expenses] minus $397 [five percent of the MAPR] equals $1,085.93.  Subtracting this number from $12,904.80 equals $11,818.87).  For the subsequent time period where five percent of the MAPR was $411, the appellant's income is still $11,832.87, using the same calculation.  Thus, even when assuming the lowest amount of countable income based on the appellant's statements and the maximum number of medical expenses based on her submitted documents, the appellant's annual income still exceeds the MAPR for each year during the appeal period.  As such, the claim of entitlement to non-service connected death pension benefits must be denied due to excessive yearly income.  

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 laws and regulations governing 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 should her income decrease, or if the amount that she pays out in the form of unreimbursed medical expenses increases, she may reapply for improved death pension benefits. 

After considering all the evidence of record, the Board finds that the preponderance of it is against the claim.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. 
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The claim for a death pension benefit must therefore be denied. 


ORDER

Entitlement to non-service connected death pension benefits is denied


____________________________________________
M.N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs