Citation Nr: 18148092 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-34 172 DATE: November 6, 2018 ORDER The appellant did not timely file a claim for unreimbursed medical expenses for calendar year 2012 for the purposes of receiving an adjustment to her VA death pension benefits, and her appeal is denied. FINDINGS OF FACT 1. The Veteran died in December 1981. 2. The appellant is the Veteran’s surviving spouse and was awarded eligibility to VA death pension benefits effective December 1, 1981. 3. In October 2014, the appellant filed a VA Form 21P-8416, Medical Expense Report, on which she reported unreimbursed medical expenses for the calendar year 2012, which was after the deadline of December 31, 2013 to file such claim. CONCLUSION OF LAW The criteria for reporting unreimbursed medical expenses to receive an adjustment to the appellant’s VA death pension benefits for the calendar year 2012 have not been met. 38 U.S.C. § 1521, 1522, 5110; 38 C.F.R. §§ 3.272, 3.660. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from July 1952 to July 1954. The Veteran died in December 1981. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). Whether the appellant timely filed a claim for unreimbursed medical expenses for calendar year 2012 for the purposes of receiving an adjustment to her VA death pension benefits The appellant asserts that she is entitled to an adjustment to her VA death pension benefits for the unreimbursed medical expenses that she claimed on the VA Form 21P-8416, Medical Expense Report, she filed in October 2014. Generally, VA death benefits are payable to a veteran’s surviving spouse, child, or dependent parent who meets net worth and annual income requirements. See 38 C.F.R. §§ 3.3, 3.5 and 3.1000. The purpose of VA death pension benefits is to provide a subsistence income for the dependents of veterans who are otherwise unable to maintain a basic, minimal income level. Death pension benefits are based upon total household income. Recipients of pension income are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C. §§ 1521, 1522; 38 C.F.R. § 3.277. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting countable annual income from the maximum annual pension rate (MAPR). The MAPR is adjusted from year to year. In determining countable annual income, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded by law. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. Exclusions from countable income for VA pension purposes include, as relevant to the instant claim, unreimbursed medical expenses. 38 C.F.R. § 3.272, 3.278. Where pension was paid at a lower rate based on anticipated income, pension may be increased in accordance with the facts found if satisfactory evidence of entitlement is received within the same or next calendar year. 38 U.S.C. § 5110(h); 38 C.F.R. 3.660(b)(1). The essential facts in this matter are not in dispute. The Veteran died in December 1981. The appellant is his surviving spouse and was awarded eligibility to receive VA death pension benefits since December 1, 1981. In a VA Form 21-8416, Medical Expense Report, received in October 2014, the appellant reported paying $858.00 for Medicare Part B and $7,200.00 for home care assistance from January 1, 2012 to December 31, 2012. The appellant dated the Medical Expense Report form as October 8, 2014. The form was date-stamped as received by the RO on October 14, 2014. Pursuant to 38 C.F.R. § 3.660(b)(1), the appellant had until December 31, 2013 to submit a timely medical expense report for a benefit recalculation for the year 2012. As the appellant’s VA Form 21P-8416, Medical Expense Report was received after December 31, 2013, the form was not timely submitted and as such her 2012 medical expenses may not be excluded from countable income for pension purposes for that year. 38 U.S.C. § 5110(h); 38 C.F.R. § 3.660(b)(1). In summary, based on the available evidence, the provisions of 38 C.F.R. § 3.660(b)(1) are dispositive in this matter. As the appellant did not timely file her claim for unreimbursed medical expenses for the calendar year 2012, it must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow