Citation Nr: 1800203	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  13-31 771	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to nonservice-connected death pension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel



INTRODUCTION

The Veteran had active service from February 1946 to January 1949 and June 1951 to September 1953.  The Veteran died in June 2006. The Appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2010 administrative decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin.  A notice of disagreement was received in March 2010, a statement of the case was issued in August 2013, and a VA Form 9 was received in September 2013.  The matter is now handled by the RO in Detroit, Michigan.   

The Appellant requested a hearing before the Board.  The requested hearing was scheduled in October 2016; however, she failed to attend the hearing and did not provide an explanation or request to reschedule.  Therefore, the hearing request is deemed withdrawn.


FINDINGS OF FACT

1. Resolving all reasonable doubt in her favor, the Appellant is the surviving spouse of the Veteran.

2. The Appellant's countable income exceeds the maximum annual pension rate payable to a surviving spouse with no dependents.



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CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected death pension have not been met. 38 U.S.C. §§ 1503, 1541 (West 2012); 38 C.F.R. §§ 3.3, 3.23, 3.24, 3.271, 3.272, 3.273 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. In this case, however, as the resolution of the Appellant's claim is dependent on the interpretation of the law and regulations pertaining to claims for VA benefits, no further development under the VCAA is warranted. Mason v. Principi, 16 Vet. App. 129, 132 (2002). In any event, the Board notes that the RO mailed the Appellant a letter in March 2013 notifying her of the type of evidence necessary to substantiate her claim for nonservice-connected pension benefits. The Appellant was provided the opportunity to submit additional evidence. The Board concludes that VA's duties to notify and assist have been satisfied.

The Board finds the record as it stands includes adequate evidence to allow the Board to decide the issue on appeal. Additionally, the Appellant has not identified any relevant evidence that is outstanding. Thus, VA satisfied its duties to notify and assist the Appellant. As such, appellate review may proceed without prejudice to the Appellant.


II.  Entitlement to Nonservice-Connected Death Pension

The Appellant seeks entitlement to nonservice-connected death pension.

Applicable Laws

In general, the surviving spouse of a Veteran is entitled to receive nonservice-connected death pension benefits if the Veteran had qualifying service and 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 applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541 (a); 38 C.F.R. § 3.3 (b)(4).

For VA purposes, a marriage is considered valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103 (c); 38 C.F.R. § 3.1(j).

A "surviving spouse" is defined as a person who was the spouse of a Veteran at the time of the Veteran's death, who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse) and, except as provided in section 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person; and has not remarried. 38 C.F.R. § 3.50.

Under applicable criteria, payments of death pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272.

Exclusions from countable income for the purpose of determining entitlement to pension also include amounts paid for a Veteran's just debts and expenses of last illness and burial, to the extent such burial expenses were not reimbursed by VA. 38 C.F.R. § 3.272.

The maximum annual rates of improved pension are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. The rates of death pension benefits are published in tabular form in appendix B of the 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.

Effective December 1, 2008, the maximum allowable rate for a surviving spouse with no dependents was $7,933. The maximum allowable rate for a surviving spouse with no dependents was thereafter increased on multiple occasions and is currently $8,830.

Facts & Analysis

The Appellant and the Veteran were married in January 1993. The Veteran died in June 2006. An application for death pension was received in September 2009. The Appellant reported that she had not married again after the Veteran's death. The Appellant reported an annual income of $12,000 with unreimbursed burial expenses of $5,000, as well as $2,400 pharmacy copay, and $1,152 in Medicare.

Entitlement to death pension was denied in March 2010 because the Appellant's income for VA purposes was greater than the income limit for a surviving spouse with no dependents ($7,933 in 2009). The Appellant's income for VA purposes was stated to be $14,291 for 2009. It was noted that $2,400 in pharmacy copay could not be deducted because it was not a predictable expense, and $5,000 in burial expenses could not be deducted because no date was given as to when it was paid.

The August 2013 statement of the case explained that the Appellant's marital status needed clarification, because the application for benefits indicated the Veteran only had one marriage, however, the marriage certificate submitted by the Appellant indicates he had two prior marriages. Additionally, the statement of the case indicated that the Appellant's income exceeded the maximum annual pension limit of $7,933. 

Social Security records indicate the Appellant received $1,254.40 a month in 2009, for an annual amount of $15,052.80. The Appellant paid $96.40 a month for Medicare premiums in 2009, for an annual amount of $1156.80. 

After reviewing the record in this case, the Board has determined that the Appellant is the Veteran's surviving spouse. The Board finds the Appellant and the Veteran entered a recognized marriage for VA purposes in January 1993, as their marriage is confirmed by a valid Marriage Certificate from the state of Michigan. On the Veteran's certificate of death from June 2006, he is listed as being married to the Appellant. Because the Appellant and the Veteran are shown to have entered into a valid marriage, and because there is no evidence of divorce, the Board will resolve reasonable doubt in favor of the Appellant on this question and finds that the Appellant was the spouse of the Veteran at the time of his death.

Unfortunately, however, the criteria for entitlement to nonservice-connected death pension benefits have not been met because the Appellant's countable income has exceeded the maximum annual pension rate for a surviving spouse with no dependents during the period on appeal. 

As set forth above, during the pendency of this appeal, the applicable maximum annual pension rate has ranged from $7,933 to $8,830. As noted in the March 2010 decision, the Appellant's payments for Medicare premiums in 2009 in the annual amount of $1,156.80 were deducted from her income. Even considering this expense, the Appellant has been in receipt of annual income of, at minimum, $13,896. Because her income is well in excess of the maximum annual pension rate and, absent any indication of additional unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, pension is not payable. 

The Appellant has not provided any evidence that her countable income was lower than the applicable maximum annual rates of improved pension rates from 2009 to the current year, 2017. She has not indicated that her Social Security payments ceased or were significantly reduced at any time during the appeal period, or that she has additional expenses that may be deducted from her countable income. Of note, the Appellant indicated that she paid for funeral expenses for the Veteran as well as private insurance premiums and medical copays. In a March 2013 letter, the RO asked the Appellant to provide proof of these payments; the Appellant failed to respond.

Thus, while the Board empathizes with the Appellant's loss of her husband and her financial difficulties, given the available record regarding her countable income and exclusions, there is no legal basis upon which to award nonservice-connected death pension benefits. 

In summary, the Appellant's income exceeds the statutory limits and she is not legally entitled to death pension benefits. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104. 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 (1992).



ORDER


Entitlement to nonservice-connected death pension benefits is denied.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs