Citation Nr: 18142198 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 10-47 967 DATE: October 15, 2018 ORDER Entitlement to death pension benefits is denied. FINDING OF FACT The appellant's countable income exceeds the maximum annual income for pension benefits. CONCLUSION OF LAW The criteria for non-service connected death pension benefits are not met. 38 U.S.C. §§ 1521, 1541, 1543 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to July 1973. He died in September 2008. The appellant is his surviving spouse. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2012, the appellant testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2014 and September 2016, the Board remanded the matter on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since returned to the Board for appellate disposition. As instructed in the Board’s remand, the AOJ requested that the appellant provide information pertaining to her income and unreimbursed medical expenses since 2010, and was provided VA Forms 21P-8416 (Medical Expense Report) and 21-0518-1 (Improved Pension Eligibility Verification Report). The appellant responded to the January 2017 letter that same month indicating that she had no additional evidence to submit. She did not submit any additional information regarding her income and expenses. As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board finds that the AOJ's efforts in attempting to obtain additional information was sufficient, and it need not further attempt to secure response from the claimant. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). Entitlement to Death Pension Benefits The appellant is the surviving spouse of a veteran, who had qualifying wartime service; as such, she may be entitled to a rate of pension set by law, reduced by the amount of her countable income. 38 U.S.C. § 1541; 38 C.F.R. § 3.23. Non-service connected death pension is an income-based benefit for low income qualifying survivors, and 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 his or her countable income. 38 U.S.C. § 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 pension rate (MAPR) is published in Appendix B of VA Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 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 period in which received unless specifically excluded under 38 C.F.R. § 3.272. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Social Security Administration (SSA) income is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Medical expenses in excess of five percent of the MAPR, 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)(2)(iii). On her application for Dependency and Indemnity Compensation received in July 2009, the appellant reported approximately $45,000 in assets from bank and retirement accounts. She also reported that she received $363.00 per month in federal survivor benefits and $1,000.00 per month in salary. An Improved Pension Eligibility Verification Report dated in July 2010 reflects that the appellant had not received any wages and was not employed at any time during the past 12 months. She indicated that he had not received Social Security or any other income. The appellant noted that she had worked from October 2008 through October 2009, and earned $17,000 per year, but she had no income from 2009. During the April 2012 Board hearing, the appellant testified that she earned $8.75 per hour, working a 40-hour work week at a hospital at the time she filed her claim, or approximately $300 per week. She indicated that she had medical expenses pertaining to her diabetes that were approximately $150 to $200 per month. She reported that she went to another job in June 2011 and was last employed in December 2011 when she got laid off. At that employer, she worked 30 hours per week, making $11 per hour. She noted that she was drawing unemployment benefits of $174 per month. She paid a little over $100 per month in medical insurance, and noted that there was $183 left over per month from her husband’s insurance. The appellant also reported that she paid $43 every three months for medication. Pertinent to the period on appeal, in 2009, the MAPR for a surviving spouse without a dependent child was $7,933.00; effective December 1, 2011, it was $8,219; effective December 1, 2012, it was $8,359; effective December 1, 2013, it was $8,485; effective December 1, 2014, it was $8,630.00; effective December 1, 2016 it was $8,656. Effective December 1, 2017, the MARP was $8,830.00. As indicated above, in 2009 the appellant reported an income of $1,363 per month, equaling $16,356, which is over the MARP for that year. Though she indicated approximately $200 per month in medical expenses ($1,200 per year), even if the Board were to deduct medical in excess of five percent of the MARP, her countable income still exceeded the MAPR for that year. With respect to the appellant’s reported changes in income and expenses, the Board finds that she has not provided sufficient information to allow the Board to determine whether her income exceeds the MAPR for any year on appeal. The Board acknowledges that the appellant reported that she was not employed after October 2009, and testified that she was only employed for a short period in 2011. However, she has not responded to multiple requests to complete financial status reports, and her testimony is not sufficiently detailed to determine income and deductible expenses for any year on appeal. She has not provided clarification as to her dates of employment, any period of collecting unemployability benefits as reported during her hearing. She has also not indicated whether she was still in receipt of federal survivor benefits and provided detail on her medical expenses with enough specificity to determine her out-of-pocket medical expenses. Accordingly, the Board is unable to conclude that her income is below the MAPR and determine her eligibility for death pension. As the appellant's countable income exceeds the maximum annual income allowed for the payment of death pension benefits, the appellant is 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 preponderance of the evidence is against the claim, and therefore the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel