Citation Nr: 1516154 Decision Date: 04/14/15 Archive Date: 04/21/15 DOCKET NO. 12-21 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Whether the reduction of a death pension award due to a change in income was proper. ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran had active service from December 1946 to May 1948. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. The claim was previously remanded in January and December 2014. The requested development has been substantially complied with and the claim is ready for appellate review. The Board has reviewed and considered all of the documents contained in the Veteran's Virtual VA file. No records are contained in the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. In April 2012, the PMC adjusted the appellant's monthly death pension benefits based upon her receipt of increased Mexican SSA disability benefits. 2. Adjustments in the appellant's pension award resulted in a decreased pension rate payable from January 1, 2011 to December 1, 2011. 3. There are no medical expenses of record for 2011. CONCLUSION OF LAW Reduction of VA death pension benefits from January 1, 2011 to December 1, 2011 was proper. 38 U.S.C.A. §§ 1503, 1541 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273, 3.660 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b). Here, because the application of the law to the undisputed facts regarding the appellant's income is dispositive of the claim, no discussion of VA's duties to notify and assist is necessary. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). II. Legal Criteria and Analysis Basic entitlement to a death pension award exists if, among other things, the surviving spouse's income is not in excess of the applicable maximum annual pension rate (MAPR) MAPR specified in 38 C.F.R. § 3.23 as changed periodically and reported in the Federal Register. See 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.3(b)(4), 3.23(a), (b), (d)(5) (2014). The MAPR for 2011 for a surviving spouse without a dependent child was $7,933.00. The MAPR is reduced by the amount of the countable annual income of the surviving spouse. See 38 U.S.C.A. §§ 1503, 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.23(b) (2014). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12 month annualization period in which received, except for listed exclusions. See 38 U.S.C.A. § 1503(a) (West 2002); 38 C.F.R. § 3.271(a) (2014). Social Security Administration income is not specifically excluded under 38 C.F.R. § 3.272. 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 (2014); 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; and Alaska Native Claims Settlement Act payments. See 38 C.F.R. § 3.272 (2014). 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. Unreimbursed medical expenses in excess of five percent of the MAPR, 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. See 38 C.F.R. § 3.272(g)(1)(iii) (2014). By way of history, the record shows that the appellant was awarded death pension benefits effective August 1, 1986. In April 2012, she was informed that her death pension benefits were to be reduced based on the Improved Pension Eligibility Verification Report (EVR), VA Form 21-0518-1, received in March 2012. The appellant disagreed with the decision in May 2012 and perfected the appeal via a VA Form 9 of July 2012. For clarification purposes, the Board notes that the appellant's death pension benefits have been consistently increased effective January 1, 2012 in part based on cost of living adjustments and in part, based on reported medical expenses. While additional EVR's have been received since the July 2012 VA Form 9, the Veteran has not submitted any additional statements or disagreed with any other adjustments to her death pension benefits after December 1, 2011. As the death pension benefits have been consistently increased since then, given that the appellant has not disagreed with any other adjustments made to her benefits since December 1, 2011, the Board will focus on the reduction effective January 1, 2011 through December 1, 2011. The facts presented in this case are fairly straightforward. VA adjusted/decreased the appellant's death pension benefits, effective January 1, 2011, because the her countable income had increased. The appellant contends that the reduction is improper because she needs the money. See July 2012 VA Form 9. The evidence demonstrates that the appellant is a surviving spouse with no dependents. An EVR received in March 2012 for the year 2011 shows the appellant's income to be $1,920 a year from Mexican Social Security Administration (SSA) benefits. The evidence does not show any additional income or medical expenses. As the appellant is a surviving spouse with no dependents, the MAPR is $ 7,933.00 a year, or $661.00 per month. As noted, the evidence reveals that the appellant's total income is $1,920.00 per year, and there are no medical expenses. These financial figures were the same as those used by the PMC when it decided to adjust/reduce VA death pension benefits. The appellant has not asserted that these figures are incorrect, or that VA has made any errors in calculation. Subtracting the Veteran's income from the MAPR results in $6013. Dividing this figure by 12 results in pension payable of $501 per month. This is the amount of pension paid by VA to the appellant per month for 2011. As the appellant's submission of medical expenses for 2012 suggests that she may have had unreported unreimbursed medical expenses for 2011 that may have reduced her countable income, the Board remanded the claim in December 2014 to allow her the opportunity to submit any potential medical expenses for 2011. Thereafter, in December 2014 the PMC requested that the appellant provide any medical expenses incurred in 2011; however, the appellant did not respond to the PMC's request. While it is possible that the appellant had medical expenses in 2011, she has not submitted any evidence of the same. It is significant that the appellant submitted medical expenses for 2012 when she submitted the EVR for 2012, but failed to submit any for 2011 even when specifically requested for the information by the PMC. If the appellant wished that any medical expenses be considered, she should have submitted records of the expenses, especially when specifically requested to do so. Therefore, the Board has no option but to conclude that there were no medical expenses to be deducted for 2011. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is a two-way street). Accordingly, there are no exemptions to be considered in the calculation of the death pension benefits for 2011. In summary, after reviewing the entire record, the appellant's award of death pension benefits was properly reduced from January 1, 2011 to December 1, 2011 based on the appellant's increase in income, namely, the increase in Mexican SSA benefits and the absence of any medical expenses for 2011. ORDER The reduction of the appellant's death pension benefits from January 1, 2011 to December 1, 2011, was warranted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs