Citation Nr: 1335667	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  12-25 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Whether the appellant's countable income exceeds the maximum allowable for nonservice-connected death pension benefit purposes.  
 
 
ATTORNEY FOR THE BOARD
 
A. Barner, Associate Counsel
 

INTRODUCTION
 
The Veteran appears to have served during World War II.  He died in April 2004.  The appellant is his surviving spouse.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. 
 
In November 2012, the Philadelphia RO certified the issue on appeal and transferred a temporary pension file to the Board.  
 
In addition to the paper claims file, there is a Virtual VA electronic claims file associated with this appeal.  The electronic file contains additional relevant records pertaining to the claim on appeal, including a copy of the November 2011 RO decision and information from the Social Security Administration.
 
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).
 
 
FINDING OF FACT
 
Based on the information provided, the appellant's countable income exceeds the maximum annual pension rate.
 

CONCLUSION OF LAW
 
The criteria for nonservice-connected death pension benefits are not met.  38 U.S.C.A. §§ 1541, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2013). 
 
 

REASONS AND BASES FOR FINDING AND CONCLUSION
 
Duties to notify and assist
 
The requirements of the VCAA have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the appellant in a July 2012 statement of the case of the information and evidence needed to substantiate and complete a claim for death pension, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain, and how effective dates are assigned.  The claim was readjudicated in a June 2013 supplemental statement of the case. 
 
VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate the claim.  Pursuant to a February 2013 Board remand, the appellant was requested to provide documentation regarding any medical expenses incurred; however, no further information was received.  Any failure to develop this claim rests with the appellant.  See Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist is not a one-way street).  There is no evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication with regard to the issue decided.  Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. 

Nonservice-connected death pension 
 
Improved death pension is a benefit payable by VA to a surviving spouse because of the veteran's nonservice-connected death.  Basic entitlement exists if:  (i) the Veteran had qualifying service; or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has annual income not in excess of the applicable maximum annual rate payable specified in 38 C.F.R. § 3.23.  See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4). 
 
The maximum annual rate of improved pension for a surviving spouse is specified by statute and is increased from time to time under 38 U.S.C.A. § 5312.  See 38 C.F.R. § 3.23. 
 
The appellant's claim was received in October 2010.  The rates of pension benefits for the relevant time period were published in tabular form in Appendix B of Veterans Benefits Administration Manual M21-1R, and are given the same force and effect as if published in the Code of Federal Regulations.  38 C.F.R. § 3.21 (2013).  Effective from December 1, 2008, the income limit for a spouse without a dependent child was $7,933.00.  This amount remained in effect until December 1, 2011, when the maximum annual pension rate increased to $8,219.  Effective in December 1, 2012 the maximum annual pension rate was increased to $8,359.00.  As such in 2010 medical expenses to be deducted are those that exceed five percent of the maximum annual pension rate, i.e., $7,933 or $396.00.  Effective in 2011 medical expenses to be deducted were those that exceed $410.00, and in 2012, $417.00.  
 
The Veteran was in receipt of service connected benefits at the time of his death. 
 
Regarding whether the income limits are satisfied, the law provides that payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded under 38 C.F.R. § 3.272.  See 38 C.F.R. § 3.271.  Recurring income means income which is received or anticipated in equal amounts and at regular intervals and which will continue throughout an entire 12-month annualization period.  38 C.F.R. § 3.271(a)(1).  Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income.  38 C.F.R. § 3.271(a)(3). 
 
A Social Security Basic Information inquiry and documentation from the appellant revealed that the appellant received Social Security benefits of $1,032.50 per month in 2010, and $1,069.90 per month in 2011 and 2012.  In the July 2012 statement of the case the RO calculated income to include $720.00 per month of retirement income.  

In February 2013 the Board remanded and requested outstanding documents that were mentioned in the statement of the case, but not associated with the claims folder.  Although the RO notified the appellant that some documents had been misplaced, no additional documents were forthcoming.  Nevertheless, the Board will not consider the $720.00 retirement income in its calculations because it is not supported by the evidence of record, and affording the appellant the benefit of the doubt, this leads to a lower income.  Even without considering the retirement income amount, however, when the appellant's reported income is annualized, it is at minimum $12,390.00, which is well above the income limits set forth above.  
 
The 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; Alaska Native Claims Settlement Act payments; monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans or children of veterans with covered service in Korea; compensation under the Victims of Crime Act of 1984; payment received under Medicare Prescription Drug Discount Card and Transitional Assistance Program; and lump-sum life insurance proceeds.  See 38 C.F.R. § 3.272 (2013).  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.
 
Based on the evidence of record certain unreimbursed medical expenses may be excluded from countable income for the same 12-month annualization period to the extent they were paid.  To be considered, the total unreimbursed expense paid by the claimant must be in excess of five percent of the maximum annual rate payable.  38 C.F.R. § 3.272(g).  
 
In reviewing the appellant's claim, a 2012 Social Security Administration benefit letter showed a monthly Medicare deduction of $99.90.  In addition, the appellant submitted a statement of medical expenses in January 2012 wherein she listed a total of $2,619.38 in expenses.  These expenses included CVS pharmacy prescriptions spanning several years, which she verified with a print-out.  She also included receipts to verify her listed oral surgery, and treatment from Northboro Dental.  
 
Based on the income information provided and even assuming, without conceding, that the expenses reported by the appellant meet the criteria for exclusion from countable income, her annual income still exceeds the maximum annual rate payable for the entirety of the appeal period.  For instance, even assuming the appellant's medical expenses included all reported expenses, they are not more than $2,719.28.  Even applying the lowest amount deductable for the time period in question, $396.00, medical expenses to be deducted from countable income are at least $2,323.28.  Even subtracting this from the minimum amount of income the appellant received, there is $10,066.72, well over the income limit for a spouse without a dependent child.  Thus, entitlement to nonservice-connected death pension benefits must be denied.  

The appellant is advised that she is free to refile for death pension benefits should her income decrease and/or deductible expenses increase. 
 
 
ORDER
 
Entitlement to nonservice-connected death pension benefits is denied. 
 

____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs