Citation Nr: 18149935 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-00 577A DATE: November 14, 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 March 1968 to February 1970. He died in April 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which terminated death pension benefits as of May 1, 2013. While the appellant initially requested a Board hearing on her VA Form 9, Appeal to the Board, she subsequently withdrew her request in a May 2016 correspondence. The Board will accordingly proceed with appellate review on this matter. 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 has reported that she has custody of her granddaughter, who is under the age of 18. Under VA law, the term "child," as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household at the time of the veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a)(1). In the case at hand, as the granddaughter of the Veteran and appellant, N.S. is not a legitimate child or stepchild of the appellant, and there is no indication that N.S. is the legally adopted child of the appellant. Therefore, the applicable MAPR is for a surviving spouse without a dependent child. The appellant filed the instant claim for death pension benefits in April 2012. In the decision on appeal, the appellant was granted death pension benefits effective April 2012, but they were terminated as of May 1, 2013. Pertinent to the period on appeal, the MAPR for a surviving spouse without a dependent child, effective December 1, 2012, 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 that her only income is SSA benefits. As of May 2013, the Social Security data match information shows payment of $876 per month (or $10,512 annually) and secondary Social Security of $129 per month (or $1,548 annually). Her annual income was thus over $12,000 and in excess of the MAPR for 2013. In 2014, her Social Security income was $889 per month, or $10,668 per year, and secondary Social Security was $131 per month, or $1,572 annually. Her total income was again over $12,000 and in excess of the MAPR for that year. In 2015, her Social Security income was $904 per month, or $10,848 annually. Secondary Social Security was $133 per month or $1,596 for the year. Again, her total income was in excess of the MAPR for 2015. 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. For the year 2013, medical expenses in excess of 5 percent of the MAPR for 2013 ($417) may be deducted. For 2014, the appellant’s countable income may be reduced by those expenses over $424. For 2015, medical expenses must be in excess of $441. The appellant submitted a medical expense report in January 2014 noting a payment of $16.30 for Medicare Part D. She also noted transportation costs of $995 and monthly medication costs of $100, but she did not specify a date paid, identify a period for these expenses, or submit receipts of payment. She has also submitted a number of invoices and statements regarding health care services. However, many 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. Some statements from the Cardiology Associates of Fredericksburg, Rappahannock Gastroenterology Associates, Physical Medicine Associates, and Allergy and Asthma Center do include indication of periodic patient payments. However, of those expenses noted as paid by the appellant during the appeal period, the total of these expenses is not greater than 5 percent of the MAPR for any given year, and thus they may not be excluded from her income. As a result, the appellant’s income is in excess of the MAPR for entitlement to death pension benefits. The appellant has indicated that she had difficulty paying the Veteran’s medical bills for treatment expenses prior to his death. She submitted a bill for her husband totalling over $10,000 for services in 2011. The Board is sympathetic to the appellant’s financial difficulties, and in particular, the amount of the deceased Veteran’s outstanding medical bills. However, these statements indicate outstanding balances and there is no indication of payment related to the Veteran’s last illness, and thus they may not be deducted from her income. 38 C.F.R. § 3.272. With respect to subsequent years from 2015 to the present, the Board notes that while there is no Social Security data match information for these years, given Social Security cost of living increases as well as the lack of reported medical expenses, there is no basis find that the appellant’s countable income is less than the MAPR for these years as well. See https://www.ssa.gov/cola/. Finally, to the extent that the appellant contends that the Veteran’s burial expenses should not “count against” her, the Board notes that these expenses were in fact used to reduce her countable income such that she was eligible for death pension benefits from April 2012 through May 1, 2013. 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). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel