Citation Nr: 1333958 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-23 161A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to VA non-service connected death pension benefits from June 1, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. The Veteran died in May 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board observes that the appellant also initially perfected an appeal of the October 2007 denial of service connection for accrued benefits purposes for several disabilities. However, in a June 2012 statement, she withdrew her appeal for accrued benefits purposes. Thus, those issues no longer remain on appeal. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. As of June 1, 2007, the appellant's income for calculating entitlement to VA non-service connected death pension benefits consisted of annual Social Security Administration (SSA) and state pension benefits of $16,734.00; her excludable medical and last expenses totaled $2,582.00 and excludable burial expenses totaled $8,489.75. 2. As of June 1, 2008, the appellant's income for calculating entitlement to VA non-service connected death pension benefits consisted of annual SSA and state pension benefits of $16,734.00; her excludable medical and last expenses totaled $7,386.19. 3. Effective from June 1, 2008, the appellant's countable income or IVAP (Income for VA Purposes) exceeded the maximum annual pension rate (MAPR) limit set by law for payment of VA non-service connected death pension benefits for a surviving spouse with no dependents. CONCLUSION OF LAW Termination of the appellant's VA non-service connected death pension benefits effective June 1, 2008, was proper. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.660 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The appellant's claim has been denied due to excessive income. She does not dispute the amount of her income or that it exceeds the limits for payment of pension. Hence, this case does not turn on the facts, but on an interpretation of the law. As the law is dispositive of the matter on appeal, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). In any event, the Board observes that all necessary financial information pertaining to the claim for death pension benefits was associated with the claims file and was reviewed by both the RO and the Board in connection with the claim. Moreover, various correspondence from the RO to the appellant and her representative has informed them of the laws and regulations relevant to her claim. II. Laws and Regulations Death pension benefits are generally available for surviving spouses as a result of the veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a). A higher rate of death pension is available for a surviving spouse who is in need of regular aid and attendance. 38 U.S.C.A. § 1541(d)(1); 38 C.F.R. § 3.23(d)(2). An appellant is entitled to such 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 claimant meets specific income and net worth requirements. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). The Board notes that income eligibility for pension, and the amount of any pension payable, is determined by subtracting the surviving spouse's annual countable family income from the maximum annual pension rate (MAPR) applicable to the surviving spouse's circumstances. In determining the surviving spouse's annual countable family income or IVAP, payments of any kind from any source shall be counted as income during the twelve-month annualization period in which received, including old age and survivor's insurance and disability insurance under Title II of the Social Security Act which will be considered income as a retirement benefit. 38 U.S.C.A. § 1503(a); 38 C.F.R. § 3.271(a); 38 C.F.R. § 3.262(f) (2012). Unreimbursed medical expenses in excess of five percent of the MAPR may be excluded from an individual's income for the same 12-month annualization period to the extent that the medical expenses were paid. 38 C.F.R. § 3.272(g)(2)(iii) (2012). 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. Burial expenses paid by a surviving spouse (to the extent such burial expenses are not reimbursed by VA) during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid, or from annual income for any 12-month annualization period which begins during the calendar year of death-- whichever is to the appellant's advantage. Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. 38 C.F.R. § 3.272(h). The rates of death pension benefits (MAPR) 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 MAPR for a death pension recipient who is a surviving spouse with no dependents was $7,329, effective December 1, 2006, and $7,498, effective December 1, 2007. 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. III. Factual Background and Analysis As a threshold matter, the Veteran is shown to have had qualifying active service in wartime and the appellant is shown to be the Veteran's legal surviving spouse. Accordingly, the only question before the Board is whether the appellant's income exceeds the maximum limit for pension eligibility. In her August 2007 claim, the appellant reported that she paid funeral expenses for the Veteran's burial of $8,489.75 in May 2007. She reported SSA benefits ($1031.00 a month) and South Carolina pension benefits ($363.00 a month) resulting in an annual income of at least $16,734.00 with recurring medical expenses of $2582. From June 1, 2008, the appellant continued to receive SSA benefits ($1031.00 a month) and South Carolina pension benefits ($363.00 a month) resulting in an annual income of at least $16,734.00. To determine the appellant's IVAP, the Board has taken her annual SSA and state pension benefits of $16,734.00 and subtracted allowable medical expenses of $7,011.19. The Board considered medical expenses of $7,386.19 (as reported by the appellant) minus $375.00 (5 percent of the MAPR amount of $7,498.00 effective that date). Significantly, as of June 1, 2008, the one-time funeral expenses or last expenses could no longer be counted as a deduction for the appellant's income. The result is an IVAP of $9,722.81 ($16,734.00 - $7,011.19 = $9,722.81) well in excess of the applicable MAPR of $7,498.00. Thus, the RO correctly terminated the appellant's VA non-service connected death pension benefits due to excessive income, effective June 1, 2008. Payment of non-service connected death pension requires that the appellant's countable income is less than the annual MAPR rate determined by law. VA is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c). Here, the appellant's countable income was in excess of the applicable pension rate for death pension as of June 1, 2008. As the appellant is not legally entitled to death pension benefits beginning on that date, this part of her claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to VA non-service connected death pension benefits from June 1, 2008 is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs