Citation Nr: 1734829	
Decision Date: 08/23/17    Archive Date: 08/30/17

DOCKET NO.  11-24 029	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to nonservice-connected death pension benefits.


REPRESENTATION

Appellant represented by:	Attorney Calvin Hansen


ATTORNEY FOR THE BOARD

L. McCabe, Associate Counsel



INTRODUCTION

The appellant is the surviving spouse of the Veteran who served on active duty from September 1969 to June 1971.  The Veteran died in May 2010.     

This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 determination of the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans' Affairs (VA).  The Board notes that the findings in this case are limited to eligibility to death pension for the period from June 1, 2010, as the Veteran died in May 2010.


FINDING OF FACT

For the entirety of the appellate period, the appellant's income has exceeded the maximum annual rate established by law for payment of nonservice-connected pension benefits.


CONCLUSION OF LAW

The criteria for entitlement to VA nonservice-connected death pension benefits are not met.  38 U.S.C.A. §§ 1503, 1521 (West 2014); 38 C.F.R. §§ 3.3(b), 3.23, 3.271, 3.272 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is seeking entitlement to nonservice-connected death pension.   

Nonservice-connected death pension benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death.  38 U.S.C.A. § 1541(a).  Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24.  See 38 C.F.R. § 3.3(b)(4). 

The Veteran in this case served on active duty from September 1969 to June 1971 and therefore served during a period of war (i.e., the Vietnam Era).  See 38 U.S.C.A. § 101(8), (11) (West 2014).  The Veteran died in May 2010.  The appellant is the Veteran's surviving spouse.  See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b).  However, in order to be entitled to nonservice-connected death pension benefits, the appellant must also meet the specific income and net worth requirements outlined below.  See 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4).

A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of 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 annual rate of improved pension for a surviving spouse is specified by statute and is increased periodically under 38 U.S.C.A. § 5312.  See 38 C.F.R. § 3.23.

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 annualization period in which received unless specifically excluded.  38 U.S.C.A. § 1503; 38 C.F.R. § 3.271.  Civilian compensation for injury or death, i.e., disability benefits, paid by the Social Security Administration (SSA) is specifically included as countable income.  38 C.F.R. § 3.271(g).  Additionally, wage/salary income, retirement pension benefits from private companies, and retirement income from the SSA are not specifically excluded under 38 C.F.R. § 3.272; such income is therefore included as countable income.  

Medical expenses in excess of five percent of the applicable maximum annual pension rate (MAPR), which have been paid, may be excluded from an individual's income for the same 12-month period, to the extent they were paid.  38 C.F.R. § 3.272(g)(2)(iii).  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, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income.

Additionally, under 38 C.F.R. § 3.272, amounts paid by a spouse before the Veteran's death for expenses of the Veteran's last illness will be deducted from the income of the surviving spouse.  38 C.F.R. § 3.272(h)(1)(i).

Likewise, amounts paid by a surviving spouse or child of the Veteran for the Veteran's just debts, expenses of last illness, and burial (to the extent such burial expenses are not reimbursed under chapter 23 of title 38 U.S.C.) will be deducted from the income of the surviving spouse or child.  38 C.F.R. § 3.272(h)(1)(ii).  The term "just debts" does not include any debt that is secured by real or personal property.  Id.  Similarly, expenses of last illnesses, burials, and just debts that are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant's advantage. 38 C.F.R. § 3.272(h).  Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid.  Id.  

Under 38 C.F.R. § 3.272, the following shall also be excluded from countable income for the purpose of determining entitlement to nonservice-connected death pension benefits: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; and joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner).

The rates of death pension benefits (MAPR) are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 (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.  The MAPR is generally revised every December 1st, based upon Federal data as to the increase in the cost of living, and is applicable for the following 12-month period.  As applicable to the current claim, the applicable MAPR for death pension for a surviving spouse with no dependents were as follows:  $7,933, effective December 1, 2009 (requiring that medical expenses exceed $397 - 5 percent of $7,933 - to be deducted); $7,933, effective December 1, 2010 (thus requiring that medical expenses exceed $397 to be deducted); $8,219, effective December 1, 2011 (requiring that medical expenses exceed $410 to be deducted); $8,359, effective December 1, 2012 (requiring that medical expenses exceed $417 to be deducted); $8,485, effective December 1, 2013 (requiring that medical expenses exceed $424 to be deducted); $8,630, effective December 1, 2014 (requiring that medical expenses exceed $431 to be deducted); $8,630, effective December 1, 2015 (requiring that medical expenses exceed $432 to be deducted); and $8,656, effective December 1, 2016 (requiring that medical expenses exceed $432 to be deducted).  See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B.

Turning to the evidence of record, for the year 2010, the appellant reported income in the amount of $18,614.48, consisting of $14,341.00 from social security and $4,273.48 in wages.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2010 to December 31, 2010).  Additionally, the appellant reported $1,158.00 in Medicare premiums ($96.50 monthly), $362.40 in medication costs ($30.20 monthly), $534.96 in private medical insurance premiums ($44.58 monthly), $25 in personal medical expenses, and $574.44 in medical expenses for the Veteran, for a total of $2,654.80.  See July 2010 Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits (VA Form 21-534).  The appellant also submitted two medical expense reports in September 2010, one listing medical expenses for the Veteran totaling $2,292.93, and the other listing medical expenses for both the appellant and the Veteran totaling $2,372.25.  See Medical Expense Reports (VA Forms 21-8416) (received on September 8, 2010).  Additional documentation submitted by the appellant file reflects other expenses totaling $410.76, including prescription medication copays of $260.76 and burial plot expenses of $150.00.  See Letter from Plum Creek Medical Group, P.C. (reflecting prescription medication copays); June 2010 Application for Burial Benefits (VA Form 21-530) (reflecting the cost of the burial plot).  These reported expenses for 2010 total $7,730.74 ($2,654.80 + $2,292.93 + $2,372.25 + $410.76).  Thus, based on the figures reported by the appellant, her total income of $18,614.48 less her reported expenses of $7,730.74, equals $10,883.74.  This amount is well in excess of the applicable MAPR of $7,933.00 for 2010.  Accordingly, even assuming that the appellant's submissions do not reflect unallowable or duplicative exclusions, and without making any determination as to the propriety of her asserted exclusions, the Board finds that she is ineligible for receipt of death pension benefits during 2010.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

The appellant did not submit any information concerning her income for 2011.  Nevertheless, the evidence concerning the periods immediately prior to and immediately following the 2011 timeframe reflects that she was in receipt of annual Social Security benefits totaling at least $14,550.00.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on September 9, 2010) (reflecting that the appellant received Social Security disability benefits of $859.50 monthly and Social Security surviving spouse benefits of $353.00 monthly as of September 2010); Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2012 to December 31, 2012) (reporting Social Security income of $15,070.80 in 2012).  She reported annual expenses of $3,427.11, including $1,158.00 in Medicare premiums, $313.20 for Medicare Part D "SliverScript," $427.94 in private medical insurance premiums, and $1,527.97 in additional medical expenses.  See Request for Information concerning Medical, Legal or Other Expenses (VA Form 21-8416) (received on June 13, 2016) (for the period from January 1, 2011 to December 31, 2011).  Thus, based on the evidence of record and the expense figures reported by the appellant, her social security income of $14,550.00 less her total reported expenses of $3,427.11 equals $11,122.89.  This amount is well in excess of the applicable MAPR of $7,933.00 for 2011.  Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2011.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

For the year 2012, the appellant reported income in the amount of $23,132.80, consisting of $15,070.80 from Social Security and $8,062.00 in wages.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2012 to December 31, 2012).  Additionally, the appellant reported annual expenses of $3,135.47, including $1,198.80 in Medicare premiums, $313.20 for Medicare Part D, $427.92 in private medical insurance premiums, and $1,195.55 in additional medical expenses.  See Request for Information concerning Medical, Legal or Other Expenses (VA Form 21-8416) (received on June 13, 2016) (for the period from January 1, 2012 to December 31, 2012).  Thus, based on the figures reported by the appellant, her total income of $23,132.80 less her total reported expenses of $3,135.47, equals $19,997.33.  This amount is well in excess of the applicable MAPR of $8,219.00 for 2012.  Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2012.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

For the year 2013, the appellant reported income in the amount of $24,885.80.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2013 to December 31, 2013) (reflecting $15,323.80 from Social Security and $9,562.00 in wages).  Her reported annual expenses totaled $5,457.90.  See Request for Information concerning Medical, Legal or Other Expenses (VA Form 21-8416) (received on June 13, 2016) (for the period from January 1, 2013 to December 31, 2013) (reflecting expenses including $1,258.80 in Medicare premiums, $313.20 for Medicare Part D "SliverScript," $427.92 in private medical insurance premiums, and $3,457.98 in additional medical expenses).  Thus, based on the figures reported by the appellant, her total income of $24,885.80 less her total reported expenses of $5,457.90, equals $19,427.90.  This amount is well in excess of the applicable MAPR of $8,359.00 for 2013.  Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2013.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

For the year 2014, the appellant reported income in the amount of $25,039.80.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2014 to December 31, 2014) (reflecting $15,550.80 from Social Security and $9,489.00 in wages).  Her reported annual expenses totaled $5,736.71.  See Request for Information concerning Medical, Legal or Other Expenses (VA Form 21-8416) (received on June 13, 2016) (for the period from January 1, 2014 to December 31, 2014) (reflecting expenses including $1,258.80 in Medicare premiums, $378.00 for Medicare Part D "SliverScript," $615.12 in private medical insurance premiums, and $3,484.79 in additional medical expenses).  Thus, based on the expense figures reported by the appellant, her total income of $25,039.80 less her total reported expenses of $5,736.71, equals $19,303.09.  This amount is well in excess of the applicable MAPR of $8,485.00 for 2014.  Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2014.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

For the year 2015, the appellant reported income in the amount of $19,353.80.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2015 to December 31, 2015) (reflecting $15,814.80 from Social Security and $3,539.00 in wages).  Her reported annual expenses totaled $5,218.83.  See Request for Information concerning Medical, Legal or Other Expenses (VA Form 21-8416) (received on June 13, 2016) (for the period from January 1, 2015 to December 31, 2015) (reflecting expenses including $1,258.80 in Medicare premiums, $13.20 for Medicare Part D "SliverScript," $615.12 in private medical insurance premiums, and $3,031.71 in additional medical expenses).  Thus, based on the expense figures reported by the appellant, her total income of $19,353.80 less her total reported expenses of $5,218.83, equals $14,134.97.  This amount is well in excess of the applicable MAPR of $8,630.00 for 2015.  Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2015.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

For the year 2016, the appellant reported income in the amount of $15,816.00.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2016 to December 31, 2016) (reflecting $15,816.00 from Social Security).  Her reported expenses totaled $1,413.19 during the period from January 1, 2016 to May 31, 2016.  See Request for Information concerning Medical, Legal or Other Expenses (VA Form 21-8416) (received on June 13, 2016) (for the period from January 1, 2016 to May 31, 2016) (reflecting $1,413.19 in various medical expenses).  The appellant did not provide any further information concerning any estimated or anticipated additional expenses during the remaining 6 months of 2016.  Thus, based on the expense figures reported by the appellant, her total income of $15,816.00 less her total reported expenses of $1,413.19, equals $14,402.81.  This amount is well in excess of the applicable MAPR of $8,630.00 for 2016.  Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that she is ineligible for receipt of death pension benefits during 2016.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

For 2017, the appellant has projected monthly income of $1,322.00 from Social Security.  See Improved Pension Eligibility Verification Report (VA Form 21P-0518-1) (received on April 10, 2017) (for the period from January 1, 2017 to December 31, 2017).  Based on this estimate, her annualized 2017 income (i.e. monthly income multiplied by 12) is $15,864.00.  She has not submitted any report reflecting either actual or estimated expenses or exclusions during 2017.  The appellant's projected annual income of $15,864.00 is greatly in excess of the applicable MAPR of $$8,656 for 2017.  Thus, given the figures provided by the appellant, and in light of the lack of any reported exclusions, the Board cannot find her eligible for receipt of death pension benefits at any point since January 1, 2017.  See 38 C.F.R. §§ 3.3(b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B.

Accordingly, in light of the foregoing, the Board finds that, for the entire period at issue, the appellant's income has exceeded the maximum countable income for death pension benefits.  The appellant is thus precluded from receiving death pension benefits.  See 38 C.F.R. § 3.23(a)(5).  Should her financial status change, she may re-file for such benefits.  At present, however, her claim must be denied.  The Board empathizes with the appellant's request but, unfortunately, it is bound by the controlling law and regulations.  Under the law, the Board may not award death pension benefits in cases where the appellant's annual income exceeds the applicable maximum annual pension rate.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

Entitlement to nonservice-connected death pension is denied.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs