Citation Nr: 18139950 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 12-08 599 DATE: October 1, 2018 ORDER Entitlement to survivor’s pension benefits for the helpless child of the Veteran, C.C., is denied. FINDING OF FACT C.C., a helpless child of the Veteran, had countable income for 2008 that was greater than the maximum annual pension rate for a surviving child. CONCLUSION OF LAW The criteria for entitlement to improved death pension benefits for a surviving child have not been met. 38 U.S.C. 1503, 1542 (2012); 38 C.F.R. 3.3, 3.24, 3.57, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is now deceased, served on active duty from June 1972 to July 1992. C.C. has been recognized as the helpless child of the Veteran. The appellant is the custodian of C.C. In November 2008, the Department of Veterans Affairs Regional Office established permanency incapacity for self-support for C.C. but denied entitlement to nonservice-connected death pension benefits due to excessive income. In June 2013, the Board of Veterans Appeals remanded the appellant’s claim for further development. It has since returned to the Board. 1. Entitlement to nonservice-connected death pension benefits for the helpless child of the Veteran Improved death pension is a benefit payable to a veteran’s surviving child because of the veteran’s nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety 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 child 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 (MAPR) specified in 38 C.F.R. 3.24. See 38 U.S.C. 101(8), 1521(j), 1541(a) (2012); 38 C.F.R. 3.3 (b)(4); 3.24 (2017). Generally, an individual is a child of a veteran if he or she is the biological or adopted child or stepchild of the Veteran, and is an unmarried person who either: is (1) under the age of 18; (2) “shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years;” or (3) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years), is pursuing a course of instruction at an approved educational institution. 38 U.S.C. 101(4)(A)(ii); 38 C.F.R. 3.57, 3.356; Dobson v. Brown, 4 Vet. App. 443, 445 (1993). Here, the AOJ has determined that C.C. was permanently incapable for self-support by reason of mental or physical defect prior to turning 18. Therefore, the remaining issue is whether the C.C.’s income exceeds the MAPR. The MAPR is published in Appendix B, Veterans Benefits Administration Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. 3.21, 3.24. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR for a surviving child is significantly less than that for a surviving spouse. The MAPR for a veteran’s surviving child was $1,909 for the 12-month period beginning December 1, 2007. Pension benefits are paid at the MAPR reduced by the amount of annual income received by the beneficiary. 38 U.S.C. 1521(b); 38 C.F.R. 3.3(b)(4)(iii), 3.24. This means that if the beneficiary’s countable income falls below the MAPR for any given year, the pension benefit would be equal to the difference between that year’s income and the applicable MAPR. If the beneficiary’s countable income falls at or above the MAPR for any given year, the beneficiary is not entitled to a pension benefit. In determining annual income, all payments of any kind or from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. 3.271(a)(1). Fractions of dollars are ignored when computing income. 38 C.F.R. 3.271. General living expenses for utilities, life insurance premiums, housing, and transportation (other than for medical care) are not excludable. Social Security Administration (SSA) benefits paid under the Old Age and Survivors Insurance (OASI) and Social Security Disability Insurance (SSDI) programs are included as countable income. 38 C.F.R. 3.262(f). However, Supplemental Security Income (SSI) is not considered countable income for pension purposes. See M21-1 V. iii. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by an appellant for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the applicable MAPR. 38 U.S.C. 1503(a)(8); 38 C.F.R. 3.272(g)(3). Thus, for example, in 2008, only those unreimbursed medical expenses in excess of $95.45, which is five percent of the maximum annual pension rate of $1,909, may be used to reduce total income. SSA records reflect that C.C. has received SSI benefits during his lifetime, but that he stopped receiving those benefits in 2005. Those benefits are not considered for purposes of determining his countable income. For 2008, SSA records reflect that C.C. was paid $10,608 in SSDI benefits for the year. Those benefits are relevant to determining his countable income. In a 2010 pension eligibility verification report, C.C.’s only income is reported as being from SSA. Thus, considering only C.C.’s SSA income in 2008, his countable income is $8,699 greater than the $1,909 MAPR for 2008. The Board has considered whether there are medical expenses sufficient to reduce C.C.’s countable income by at least $8,700, such that his countable income could be reduced to below the applicable $1,909 MAPR, but finds that such significant medical expenses have not been claimed. Rather, claimed unreimbursed medical expenses for C.C. would reduce C.C.’s countable income by no more than $500. Thus, as C.C.’s countable income for 2008 is clearly well in excess of the MAPR of $1,909 for a surviving child, entitlement to survivor’s pension is not warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen