Citation Nr: 18148953 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-31 295 DATE: November 9, 2018 ORDER Entitlement to death pension 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 June 1970 to April 1972. He died in March 2011. The appellant is his surviving spouse. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2016 the appellant testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2018, 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 confirmed the appellant’s Social Security income and requested information from the appellant regarding any unreimbursed medical expenses for the relevant period on appeal. Thus, the AOJ has complied with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to Death Pension 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 relevant VA manuals 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. The appellant is a surviving spouse and while she has two children, they are over the age as 18 and therefore do not count as dependents. She filed the instant claim for death pension benefits in June 2012. Pertinent to the period on appeal, the MAPR for a surviving spouse without a dependent child, effective December 1, 2011, 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; and effective December 1, 2017, the MARP was $8,830.00. See https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp. The appellant has reported no other income outside of Social Security benefits. While she reported during her Board hearing that she was not approved for these benefits until 2014, Social Security records indicate that she was approved to receive benefits as of 2011. Social Security income match data indicate that the appellant received monthly Social Security benefits of $1,051 as of December 2011, $1,068 as of December 2012, $1067.90 as of September 2013, $1083.90 as of December 2013, 1102.90 as of December 2014, $1,106.00 as of December 2016, and $1,128.00. Multiplying these monthly amounts for each year results in an annual income over $12,000, and thus in excess of the MAPR for any given year relevant to the appeal. The question remains as to whether the appellant’s unreimbursed medical expenses reduce her countable income such that she is entitled to death pension benefits. The appellant has indicated that she has various medical expenses related to doctor visits and medication. Also, consistent with the AOJ, the Board will consider Medicare premiums. The appellant submitted a statement in 2016 noting 900 per month in medication expenses from 2011 to 2014, and she reported $1,000 in transportation costs for medical appointments from 2011 to 2014. She has submitted a number of invoices and statements regarding health care services. However, the majority of these are statements of balances or charges and not receipt of actual payment. The Board can only include those expenses which were actually paid by the appellant, and thus, will discuss only those statements which demonstrate payment. A report from Eau Claire Cooperative Health reflects that the appellant paid approximately $335 in expenses in 2012. Given that medical expenses are not in excess of 5 percent of the MAPR for that year, or $410, these expenses are not able to be deducted. A report from Eau Claire Cooperative Health reflects that the appellant paid approximately $340 in expenses in 2013. In addition, Medicare premiums, which began in October 2013, were $1,049. Therefore, she paid approximately $262 in Medicare premiums for a period of 3 months in 2013. Medical expenses in excess of 5 percent of the MAPR for 2013 ($417) may be deducted, which in this case is less than $200. When considering Social Security income from that year minus these medical expenses, the appellant’s countable income is still greater than the $8,359 MAPR for that year. Social Security records reflect that the State of South Carolina began paying the appellant’s premiums as of November 2014. For 2014, the appellant submitted documents indicating payment of $52.67 to Eyes Over Carolina PC. In addition, the appellant paid a prorated Medicare premium amount through November 2014 of approximately $875. While a statement from Eau Claire Cooperative notes some cash payments for expenses, she was also refunded money this year and there were no net expenses for this year. Her countable income may be reduced by those expenses over 5 percent of the MAPR ($424), which in this case is approximately $504. However, her countable income is still greater than $12,000, and thus is greater than the $8,485 MAPR for this period. For the year 2015, the appellant submitted a statement of payments from Eau Claire Cooperative noting payments totaling approximately $31. Given that medical expenses must be in excess of 5 percent of the MAPR, or $441, these expenses are not able to be deducted. For the year 2016, the appellant submitted a statement of payments from Eau Claire Cooperative indicating payments of $85 in 2016. Again, given that medical expenses must be in excess of 5 percent of the MAPR, or $441, these expenses cannot be deducted. For 2017, the appellant submitted a receipt for glasses dated April 2017 for $162.21. Given that medical expenses must be in excess of 5 percent of the MAPR, or $443, these expenses cannot be deducted. Finally, with respect to the year 2018, the appellant has only shown a $10 payment to Eau Claire Cooperative and $25 and $45 payments to PHUSC Pulmonology. Given that medical expenses must be in excess of 5 percent of the MAPR, or $447, they cannot be deducted. 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). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel