Citation Nr: 1757797 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 12-24 123A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to death pension benefits. ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1959 to August 1979. The Veteran died in July 1998. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, which denied payment of death pension benefits based on excessive income. The Board has remanded the appeal several times. In December 2014, the Board directed the RO to collect relevant financial evidence after the June 2011 rating decision. The Board remanded the appeal once more in June 2016, to obtain income and expenses information that was noted in both the October 2015 and February 2016 Supplemental Statement of the Case but not included in the claims file. The Board remanded the appeal in August 2017 after receipt of additional evidence and requested the RO readjudicate the appellant's claim. A Supplemental Statement of the Case was issued in August 2017 and the RO returned the appeal to the Board. FINDINGS OF FACT 1. In the 2011 calendar year, the appellant had $25,436.00 in income, and $1,156.80 in medical expenses; the appellant's countable income for VA purposes exceeded the limits for surviving spouses for that year. 2. In the 2012 calendar year, the appellant had $28,725.80 in income, and $1,198.80 in medical expenses; the appellant's countable income for VA purposes exceeded the limits for surviving spouses for that year. 3. In the 2013 calendar year, the appellant had $29,584.80 in income, and $1,258.80 in medical expenses; the appellant's countable income for VA purposes exceeded the limits for surviving spouses for that year. 4. In the 2014 calendar year, the appellant had $27,420.45 in income, and $1,258.80 in reported medical expenses, at most; the appellant's countable income for VA purposes exceeded the limits for surviving spouses for that year. 5. In the 2015 calendar year, the appellant had $28,095.84 in income, and $1,258.80 in reported medical expenses, at most; the appellant's countable income for VA purposes exceeded the limits for surviving spouses for that year. 6. In the 2016 calendar year, the appellant had $28,812.80 in income, and $1,642.89 in reported medical expenses, at most; the appellant's countable income for VA purposes exceeded the limits for surviving spouses for that year. CONCLUSION OF LAW The criteria for entitlement to death pension award have not been met. 38 U.S.C. §§ 101, 501, 1151, 1503, 1541 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.271, 3.272, 3.274, 3.275, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Death Pension Death pension is available to the "surviving spouse" of a Veteran because of a nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C. §§ 101, 1521(j), 1541 (2012); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5), (2017). Basic entitlement to such pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. § 1521(a), (b) (2012); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21 (2017). The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). 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. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). 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. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate or rates...as in effect during the 12-month annualization period in which the medical expenses were paid." See 38 C.F.R. § 3.272(g)(1)(iii); 38 U.S.C. § 1503(a)(8). 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, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. As the appellant's claim was first received on January 1, 2011, the annualization periods under consideration are February 1, 2011 to December 31, 2011; January 1, 2012, to December 31, 2012; January 1, 2013, to December 31, 2013; January 1, 2014, to December 31, 2014; January 1, 2015, to December 31, 2015; and January 1, 2016, to December 31, 2016. Social Security Administration (SSA) records show the appellant's monthly benefits were $750.40 from February 1, 2011 to December 1, 2011, $771.90 from December 2011 to December 1, 2012, $833.90 from December 2012 to December 1, 2013, $845.90 from December 2013 to December 1, 2014, $860.90 from December 2014 to December 1, 2015, and $860.90 from December 2015 to present. The appellant also received a retroactive payment in October 2016 for $3,307.00. In her March 2011 Application for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits by a Surviving Spouse or Child, the appellant indicated that she had $25,302.00 in income and no dependents. She also noted that she had $8,000.00 in medical expenses in July 1998, which was presumably for her husband's burial. A June 2011 rating decision denied entitlement to death pension benefits because her income exceeded the maximum annual limit. The appellant submitted a statement in June 2011 indicating that she disagreed with the decision because she was attempting to apply for her husband's retirement benefits. The appellant submitted an Eligibility Verification Report (EVR) in April 2012 noting that she had not remarried and had no dependents. She received $8,979.80 from SSA and $16,431.10 in wages from employment; however, she did not indicate when these amounts were received. There was no change to her income since her last filing. In her September 2012 Substantive Appeal, she noted that she would be retiring soon and would lose most of her income. In December 2014, she submitted an EVR and indicated that she had not remarried since the death of the Veteran and did not have any dependents. She reported $19,463.77 in wages from January 2012 to December 2012 and $19,578.00 from January 2013 to December 2013. She also received $756.00 monthly from SSA. In May 2015, the appellant submitted another EVR, indicating that she had not remarried, she was not in a nursing home and still had no dependents. She received $746.00 monthly from SSA and $1,674.00 in wages from 1999 to 2015. She had $1,111.00 in a bank account. She also submitted copies of paperwork showing her retirement benefits, which noted her last day of work as June 12, 2015. In a July 2015 medical expense report, she indicated she had no out of pocket medical expenses, as she was covered by Tricare and private insurance. In December 2015, the appellant submitted a statement notifying VA that she had retired effective June 12, 2015, and was receiving $464.00 in retirement each month. She was also receiving $748.00 from Social Security. The appellant submitted another Application for DIC, Death Pension and Accrued Benefits in April 2016; however, several pages were missing and no new information was provided. She submitted an updated EVR in August 2016 and indicated that she still had not remarried and had no dependents. She noted that she returned to her previous employment and worked part-time from April 2016 to June 2016 in order to pay off a debt. Pay stubs submitted later showed she earned $833.84. In two medical expense reports, she noted that she drove about 28 miles and 40 miles for medical appointments. She also had $355.87 in other medical expenses. During a phone call with VA in September 2016, the appellant indicated that she was receiving $468.00 per month for retirement following her last day of work on June 12, 2015. The appellant submitted copies of her W-2s from her employer in October 2016: she made $16,431.10 in 2011; she made $19,463.77 in 2012; she made $19,577.76 in 2013; she made $17, 269.65 in 2014; she made $14,957.04 in 2015; and she made $9,559.00 in 2016. She also submitted various billing documents for her medical appointments and procedures, but no receipts or documents showing payment. In September 2017, the appellant informed VA that she had retired but no further information was provided. For clarity, the Board will consider each annualization period separately. For the Period of February 2011 to December 2011 For calendar year 2011, the MAPR was $8, 219.00, for surviving spouses with no dependents. The five-percent deductible threshold for medical expenses was $410.00. The appellant's monthly SSA income was $750.40, yielding a total of $9,005.00 for the year. Her W2 showed $16,431 in wages from employment for the year. She had Medicare premiums which totaled $1,156.80. Thus, the appellant's countable income for calendar year 2011 is $24,689, which is well above the MAPR for surviving spouses with no dependents. Therefore, nonservice-connected death pension is warranted from January 1, 2011, to December 31, 2011. For the Period of January 2012 to December 2012 For calendar year 2012, the MAPR was $8,359.00, for surviving spouses with no dependents. The five-percent deductible threshold for medical expenses was $417.00. The appellant's monthly SSA income was $771.90, yielding a total of $9,262.80 for the year. Her W2 showed $19,463 in wages from employment for the year. She had Medicare premiums which totaled $1,198.80. Thus, the appellant's countable income for calendar year 2012 is $18,662.00, which is well above the MAPR for surviving spouses with no dependents. Therefore, nonservice-connected death pension is warranted from January 1, 2012, to December 31, 2012. For the Period from January 2013 to December 2013 For calendar year 2013, the MAPR was $8,485.00, for surviving spouses with no dependents. The five-percent deductible threshold for medical expenses was $424.00. The appellant's monthly SSA income was $833.90, yielding a total of $10,006.80 for the year. Her W2 showed $19,578.00 in wages from employment for the year. She had Medicare premiums which totaled $1,258.80. Thus, the appellant's countable income for calendar year 2013 is $28,757.00, which is well above the MAPR for surviving spouses with no dependents. Therefore, nonservice-connected death pension is also warranted from January 1, 2013, to December 31, 2013. For the Period from January 2014 to December 2014 For calendar year 2014, the MAPR was $8,630.00 for surviving spouses with no dependents. The five-percent deductible threshold for medical expenses was $431.00. The appellant's monthly SSA income was $845.90, yielding a total of $10, 150.80 for the year. Her W2 showed $17,269.65 in wages from employment for the year. She had Medicare premiums which totaled $1,258.80. Thus, the appellant's countable income for calendar year 2014 is $26,592.65, which is well above the MAPR for surviving spouses with no dependents. Therefore, nonservice-connected death pension is not warranted from January 1, 2014, to December 31, 2014. For the Period from January 2015 to December 2015 For calendar year 2015, the MAPR was $8,630.00 for surviving spouses with no dependents. The five-percent deductible threshold for medical expenses was $431.00. The appellant's monthly SSA income was $860.90, yielding a total of $10, 330.80 for the year. Her W2 showed $14, 957.04 in wages from employment for the year. She also reported receiving $468.00 per month in retirement, following her retirement from her full-time position in June 2015, which totaled $2,808. She had Medicare premiums which totaled $1,258.80. Thus, the appellant's countable income for calendar year 2015 is $27, 268.04, which is well above the MAPR for surviving spouses with no dependents. Therefore, death pension is not warranted from January 1, 2015, to December 31, 2015. For the Period from January 2016 to December 2016 For calendar year 2016, the MAPR was $8,656.00 for surviving spouses with no dependents. The five-percent deductible threshold for medical expenses was $432.00. The appellant's monthly SSA income was $860.90, yielding a total of $10, 330.80 for the year; she also received a retroactive payment for $3,307. Her W2 showed $9,559.00 in wages from part-time employment for the year. She was also receiving $468.00 in retirement each month, totaling $5,616.00. She reported annual medical expenses for the calendar year of $355.87, as well as, Medicare premiums which totaled $1,258.80. She also listed 68 miles of travel as a medical expense, which totals $28.22 based on 41.5 cents per mile. Thus, the appellant's countable income for calendar year 2016 is $27, 601.91, which is well above the MAPR for surviving spouses with no dependents. Therefore, death pension is not warranted from January 1, 2016, to December 31, 2016. Based on the foregoing, the appellant had excess income for purposes of establishing entitlement to death pension benefits. Even after subtracting eligible medical expenses from her income, the remaining countable income for each year still exceeded applicable MAPRs. Therefore, there is no basis for entitlement to death pension at any point during the appeal period. Accordingly, the Board finds that, even approaching the claim as sympathetically as the evidence will allow, the preponderance of the evidence is against the appellant's claim, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. ORDER Entitlement to death pension benefits is denied ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs