Citation Nr: 1646018	
Decision Date: 12/08/16    Archive Date: 12/21/16

DOCKET NO.  11-19 560	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Roanoke, Virginia


THE ISSUE

Propriety of termination of the nonservice-connected death pension benefits.   


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from November 1954 to November 1956.  He died in March 2009.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 determination by the Agency of Original Jurisdiction (AOJ) to terminate the appellant's death pension benefits, effective on May 1, 2009.

In July 2016, the appellant testified at a hearing before the undersigned in Washington, D.C. The undersigned noted the issue on appeal and engaged in a colloquy with the appellant toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the hearing is included in the electronic case file.

In addition to the paper claims file, the Board has reviewed the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these records.


FINDING OF FACT

The appellant's income is shown to have exceeded the maximum countable income allowable for receipt of death pension benefits.


CONCLUSION OF LAW

The termination of the appellant's nonservice-connected death pension benefits effective May 1, 2009 was proper. 38 U.S.C.A. §§ 1541, 1543 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION


Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VCAA applies to the instant claims. 

VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by correspondence sent to the appellant in August 2009. 

Moreover, during the appellant's July 2016 hearing the parties agreed as to the issue on appeal. The appellant also generally discussed evidence contained in the record and also agreed to submit an updated financial status report pertinet to the issue on appeal. The record was held open an additional 60 days to allow the appellant time to submit her financial status report and any other evidence pertinent to her claim. Her updated financial status report was received in August 2016 and there is no indication there is any outstanding, obtainable evidence pertinent to this claim. Thus, to the extent there were any shortcomings in notice, the appellant was not prejudiced because of the lack of any further obtainable pertinent evidence. Moreover, in her hearing testimony she evidenced her actual knowledge of the type of evidence and information needed to substantiate this claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31   (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). 

The duty to assist the appellant has also been satisfied in this case. The appellant's financial status reports and other evidence regarding her income are in the claims file and were reviewed by both the RO and the Board in connection with her claim. The appellant has not identified any other outstanding records that are pertinent to the issue currently on appeal. 

In summary, the appellant was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. She was an active participant in the claims process submitting evidence and argument. 

Death Pension

The appellant is the surviving spouse of a Veteran who had qualifying wartime service; as such, she was entitled to (and prior to May 1, 2009, received) a rate of pension set by law, reduced by the amount of her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.

The appellant contends that she is entitled to restoration of her VA death pension benefits based on the Veteran's service. She feels that, as his surviving spouse, termination of her VA death pension benefits was improper.

VA death pension, however, is an income-based benefit, for low income qualifying survivors of deceased Veterans. Specifically, the maximum rate of death pension benefits that may be paid is set by law. An otherwise qualifying claimant will be paid up to the maximum rate, reduced by the amount of her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23.  

In other words, any countable income of the appellant will reduce the pension benefits, dollar for dollar, by the amount of the income. Thus, if the appellant's annual income exceeds the maximum payable rate, the entire amount is offset, and the appellant is not entitled to any death pension benefits.  

The maximum amount for 2009 was $7,933 per year, or about $661 per month. If her income from other sources exceeded that amount, she was not entitled to death pension.  

In determining income for purposes of entitlement to death pension, payments of any kind from any source are counted as income during the 12-month period in which they are received unless specifically excluded under 38 C.F.R. § 3.272; 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271.  

Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income.  

The appellant's SSA income prior to May 1, 2009 was noted to have been $551.00 per month or $6,612.00 per year which was less than the maximum annual pension rate of $7,933. Thus she was entitled to and received pension benefits prior to May 1, 2009.

However, beginning May 1, 2009 her SSA income was noted to have been $1,361.00 per month or $16,332.00 per year, which is substantially in excess of the maximum annual pension rate of $7,933 for 2009. 

Any medical expenses in excess of five percent of the maximum annual pension rate ($7,933 for 2009), 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 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. 

The medical expenses to the extent they exceed five percent of the maximum annual pension rate are deducted from income. Effective December 2008, five percent of the maximum annual pension rate is $397.00.

In this case, however, the appellant has not submitted any unreimbursed medical expenses to be deducted from her countable income.

Expenses of last illness, burials and just debts may also be deducted from countable income. The appellant's submitted burial expenses for 2009 totalled $3,610.06. 

In this case, $16,332.00 (SSA income from May 1, 2009) minus $3,610.06 (burial expenses for the Veteran) equals $12,722.00 of countable income, which also is substantially in excess of the maximum annual pension rate of $7,933 for 2009.

Recently, the appellant submitted evidence showing that her SSA income was $1,480.00 per month or $17,760.00 per year, which continues to be substantially in excess of the maximum annual pension rate of $7,933. 

Based on the evidence of record, the appellant's income is above the maximum allowable for death pension purposes.  Under these circumstances, termination of the VA death pension benefits was proper.  

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 law and regulations governing the payment of VA benefits. Utility bills, rent payments and insurance premiums are not expenses that may be used to reduce the appellant's countable income. 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 if her income decreases, or she incurs unreimbursed medical expenses she may reapply for benefits.


ORDER

The termination of the appellant's nonservice-connected death pension benefits effective May 1, 2009 was proper.   



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs