Citation Nr: 18148293 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-00 258A DATE: November 8, 2018 ORDER Entitlement to death pension benefits is denied. FINDING OF FACT The appellant’s countable income exceeds the applicable maximum annual pension rate (MAPR) payable to a surviving spouse 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); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1943 to February 1946 and is a Purple Heart recipient. The Veteran died in December 2014. The Veteran married the appellant in June 2009, and as such, she is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the cause of the Veteran’s death, as well as entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. In January 2015, the RO notified the appellant that she likewise did not meet the income threshold requirements for entitlement to death pension benefits. In her June 2015 Notice of Disagreement, she only requested to appeal the denial of death pension. 1. Entitlement to death pension benefits is denied. The appellant asserts that she is entitled 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 more than 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). 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 January 1, 2011, the maximum allowable rate for a surviving spouse with no dependents was $8,219.00. The maximum allowable rate for a surviving spouse with no dependents was increased to $8,359.00, effective December 1, 2012. Effective December 1, 2013, the maximum allowable rate for a surviving spouse with no dependents was $8,485.00. The maximum allowable rate for a surviving spouse with no dependents was increased to $8,630.00, effective December 1, 2014. In support of her January 2015 application for death pension benefits, the appellant submitted income tax return statements from 2013 showing $2,550.24 in income from The Northern Trust Company during the 2013 calendar year. She also submitted a statement from the Social Security Administration showing income in the amount of $16,066.80 for the 2013 calendar year, with deductions for Medicare Part B premiums in the amount of $1,258.80, for a total benefit paid in 2013 of $14,808.00. The appellant also noted that she made a $104.90 payment to Medicare Part B in January 2015 and a $35.64 payment to CVS Pharmacy in January 2015. In January 2015, the Social Security Administration reported to VA that the appellant received a monthly benefit of $1381.90, for a yearly benefit of $16,582.80. When this amount is added to the appellant’s other yearly income, the result is a calculated yearly income of $19,133.04. Along with her June 2015 Notice of Disagreement, the appellant submitted a list of her regular expenses, including insurance costs, the cost of her lease, and utility payments. As these expenses are not “medical expenses” as contemplated by the controlling regulations, they cannot be considered in determining the appellant’s eligibility for death pension benefits. After a review of the evidence the Board finds the appellant’s countable income exceeds the maximum annual pension rate for a surviving spouse with no dependents; thus, death pension benefits are not warranted. For 2014, the evidence reflects that the appellant received a total of $16,582.80 in Social Security benefits annually. This income alone exceeds the applicable MAPR. When added with the appellant’s other income, she has a yearly countable income of $19,133.04. The appellant does have allowable deductions in the amount of $1,294.00, calculated by adding her total Medicare Part B premiums, $104.90 per month, with her reported expense of $35.64 at CVS Pharmacy for medicine. As this amount is more than 5 percent of the MAPR, $471.00, these medical expenses are eligible for consideration as a deduction. To determine the allowable non-reimbursed medical expenses, the appellant’s deductible of $471.00 is subtracted from $1,294.00 for a total of $823.00. This amount subtracted from an annual income of $19,133.04 provides a total of $18,310.04. The appellant clarified on her VA Form 9 the extent of her property ownership, as well as additional annual expenses incurred; however, this information does not provide a basis for further deductions from the countable annual income noted above. Since the appellant’s adjusted annual income of $18,310.04 is greater than $8,630.00, the MAPR, the Board finds that entitlement to death pension benefits is not warranted. While the Board is sympathetic toward the appellant’s circumstances, payment of death pension benefits requires the appellant’s countable income to be less than the annual MAPR determined by law. As the appellant’s countable income was greater than the applicable pension rate for a surviving spouse without dependents, death pension benefits are not warranted. As such, the claim for death pension benefits is denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel