Citation Nr: 1410176 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-13 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Pension Management Center in Milwaukee, Wisconsin THE ISSUE Whether reduction of death pension benefits based upon countable income for the appellant, effective from August 1, 2008, was proper. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to May 1972, and died in June 2005. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 action by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in Milwaukee, Wisconsin. As a result of the reduction in death pension benefits discussed below, the Debt Management Center notified the appellant in September 2010 that an overpayment in the calculated amount of $15,466.00 had been created. In her September 2010 statement of record, she asserted that "there's no way I could live on the money I get." Liberally construing the appellant's September 2010 statement, the Board finds that it constitutes a timely request for waiver of recovery of the overpayment. This issue is referred to the Agency of Original Jurisdiction for the appropriate action. FINDINGS OF FACT 1. The Veteran died in June 2005; VA death pension benefits were awarded to the appellant in a March 2006 action, effective July 1, 2005, based on the income noted in her September 2005 claim. 2. Beginning August 1, 2008, the appellant's annualized countable income, including monthly benefit payments from the Social Security Administration, exceeded the maximum annual income limitation for a surviving spouse without dependents. 3. The appellant's aggregate medical expenses were $2,180.00 for the year 2008, and were estimated to be $2,170 for 2009 and $2,150.00 for 2010. CONCLUSION OF LAW The reduction of VA death pension benefits effective August 1, 2008, is proper. 38 U.S.C.A. §§ 1502, 1503, 1521, 1541 (West 2002); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273, 3.660 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is the surviving spouse of a Veteran who had qualifying wartime service; as such, she is basically eligible for a rate of pension set by law, reduced by the amount of her countable income. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. § 3.23 (2013). Governing regulations provide that payments of any kind from any source shall be counted as income for improved death pension in the 12-month annualization period in which received, unless specifically excluded under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271 (2013). "Recurring income" means income that is received or anticipated in equal amounts and at regular intervals (e.g., weekly, monthly, quarterly, etc.), and that 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. The rates of pension benefits for the relevant time period were published in tabular form in Appendix B of Veterans Benefits Administration Manual 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 (2013). The maximum annual pension rate is adjusted from year to year. Effective August 1, 2008, the maximum annual income limitation for a surviving spouse with no dependents, and not in receipt of special monthly pension, was $7,498.00; the income limit changed to $7,933.00 effective December 1, 2008. In April 2010, the VA Pension Center sent the appellant a letter indicating that it was proposing to terminate the appellant's payments as VA had learned she had begun to receive monthly Social Security Administration (SSA) benefit payments beginning July 2008. In June 2010, action was taken to reduce the Veteran's pension benefit, effective August 1, 2008. The decision concluded that the appellant's annual countable income effective August 1, 2008, was $8,772.00, comprised entirely of SSA benefits. This exceeded the maximum annual income limit of $7,498.00 for a surviving spouse with no dependents. The appellant challenged the basis for the reduction of her benefits, specifically indicating that the award should not be reduced, and, in the alternative, that VA should have been aware that she was receiving additional benefits from SSA as she notified VA that she had been in receipt of SSA benefits. In regard to the appellant's contention that the award should not be reduced, the law governing whether a recipient's income is countable for pension benefits purposes is clear, in that "payments of any kind from any source shall be counted as income . . . unless specifically excluded under § 3.272." 38 C.F.R. § 3.271(a). A detailed review of 38 C.F.R. § 3.272 fails to disclose how Social Security income would qualify for exclusion from countable income for VA pension purposes under any reasonable interpretation. Medical expenses in excess of 5 percent of the maximum annual pension rate may be excluded from an individual's annual income for the same 12-month period, to the extent that they were paid and unreimbursed. 38 C.F.R. § 3.272(g) (2) (2013). The appellant's aggregate medical expenses were $2,180.00 for the year 2008, and were estimated to be $2,170 for 2009 and $2,150.00 for 2010. As these amounts exceed 5 percent of the maximum annual person rate, the appellant's death pension benefit was not terminated, but rather reduced, based on these totals. The appellant has not provided additional evidence in the form of medical expenses or other documentation that suggest her expenses further exceed her SSA income such that her death pension benefit amount should not be reduced. No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Because it appears that the overpayment created as a result of the reduction in death pension benefits may result in undue hardship to the appellant, and that she indicated as much in a June 2010 statement, the issue of entitlement to waiver of recovery of death pension benefit overpayment as noted in the September 2010 notice of the Debt Management Center has been referred to the Agency of Original Jurisdiction. However, the facts of the case establish that the appellant was not legally entitled to concurrently receive VA death pension benefits - a benefit predicated on countable income - at the same time she was receiving SSA benefits that exceeded the maximum annual income limit for surviving spouses with no dependents. Thus, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). For the foregoing reasons, the Board finds that the reduction of VA death pension benefits due to countable income was proper as of August 1, 2008, and this appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Reduction of death pension benefits based upon countable income for the appellant, effective from August 1, 2008, was proper; the appeal is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs