Citation Nr: 18146853 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 14-35 702 DATE: November 1, 2018 ORDER Entitlement to death pension benefits is denied. FINDING OF FACT The Veteran’s spouse had countable income exceeding the maximum annual pension rate (MAPR) payable to a surviving spouse receiving an aid and attendance allowance with no dependents. CONCLUSION OF LAW The criteria for death pension benefits have not been met. 38 U.S.C. §§ 1503, 1521, 1541, 5107(b) (2012); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1943 to December 1945. He died in October 1998. His surviving spouse filed claims for an aid and attendance allowance and death pension benefits on December 26, 2012. A May 2013 rating decision granted the aid and attendance allowance but denied entitlement to death pension benefits. The Veteran’s spouse perfected her appeal in September 2014, but died in November 2014 during the pendency. In September 2018, her adult daughter was granted substitution to process the appeal to completion. Entitlement to death pension benefits. 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 MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). 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. 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). 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. Effective December 1, 2012, the MAPR for a surviving spouse receiving an aid and attendance allowance without dependents was $13,362.00. The Veteran’s spouse was not entitled to death pension benefits, because her countable income exceeded the applicable MAPR. A February 2014 Social Security Administration inquiry indicates that the Veteran’s spouse received $1,739.90 in monthly Social Security benefits. She reported $180.00 in other income and $1,258.00 in annual expenses for Medicare Part B in her application for benefits. See August 2014 SOC. In her May 2014 notice of disagreement, she reported the following unreimbursed annual medical expenses: $70.00 for eye doctor visits; $1,332.00 for prescriptions; $232.00 for foot doctor visits; $52.00 for doctor visits; $228.00 for healthcare premiums; $676.00 for nursing care; and $386.00 for iron treatments. Her annual income (Social Security benefits and other income) was $21,058.80, and her unreimbursed medical expenses totaled $4,234.00. Because these expenses exceeded 5% of the applicable MAPR ($668.10), her medical expenses exceeding $668.10 are deducted from her annual income. Deducting the $3,565.90 of expenses from the annual income of $21,058.80 yields a total of $17,492.90. Therefore, the Veteran’s spouse had a countable income of $17,492.90, which exceeds the MAPR for a surviving spouse receiving an aid and attendance allowance without dependents of $13,362. Accordingly, entitlement to death pension benefits must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel