Citation Nr: 18150798 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-35 243A DATE: November 15, 2018 ORDER Entitlement to nonservice-connected death pension benefits is denied. FINDING OF FACT For the period on appeal, the appellant’s countable income exceeds the minimum annual pension rate (MAPR) for a surviving spouse without dependents. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 103, 1503, 1521, 1541; 38 C.F.R. §§ 3.1, 3.3, 3.23, 3.50, 3.271, 3.272, 3.274. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971, with additional service in the United States Army Reserve. Entitlement to nonservice-connected death pension benefits The appellant seeks entitlement to VA benefits known as “death pension” benefits. Basic entitlement to death pension benefits exists if (i) a veteran served for ninety days or more during a period or periods of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on wartime service; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not exceeding the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101 (8), 1521(j), 1541(a); 38 C.F.R. § 3.3. Even though the Board has determined (separately) that the Veteran’s cause of death should not be service connected, VA pension benefits may still be granted if it can be shown that the Veteran served on active duty for at least 90 days during a period of war. See 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3 (2016). The term “period of war” is defined by statute to include World War II from December 7, 1941, to December 31, 1946. See 38 U.S.C. § 101; 38 C.F.R. § 3.2. Here, the Veteran’s DD-214 shows that he served on active duty from August 1969 to August 1971; thus, the first criteria is met. Moreover, his self-reported net worth is $20. Therefore, the Board must consider whether the appellant’s income is more than the maximum annual pension rate. Basic entitlement to death pension benefits exists if, among other things, the surviving spouse’s income does not exceed the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. §§ 3.21, 3.23. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. See 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). Fractions of dollars will be disregarded in computing annual income. See 38 C.F.R. § 3.271 (h). Here, the appellant’s claim was denied in January 2013. The MAPR for that period for a surviving spouse without a dependent child is $8,359 (effective December 1, 2012). The MAPR at the time this decision is being written is $8,830 (effective December 1, 2017). In determining annual income, all payments of any kind, or from any source, (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. See 38 U.S.C. § 1503 (a); 38 C.F.R. § 3.271 (a). Social Security Administration (SSA) income is not specifically excluded under 38 C.F.R. § 3.272. Unreimbursed medical expenses paid, if they exceed five percent of the MAPR, may be excluded from an individual’s income for the same 12-month annualization period. See 38 C.F.R. § 3.272 (g)(2)(iii). To be excluded from income, these medical expenses must be paid during the period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the surviving spouse received no reimbursement, such as through an insurance company. However, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. Five percent of the applicable MAPR rate ($8,359.00) in effect at the time of the claim was $417.95. Five percent of the applicable MAPR rate ($8,830.00) in effect at the present is $441.50. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, or quarterly income, and which will continue throughout an entire 12-month annualization period, is counted as income during the 12-month annualization period in which it is received or anticipated. See 38 C.F.R. § 3.271(a)(1). Nonrecurring income (income received on a one-time basis), such as the surviving spouse benefit for the month of the Veterans death, will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. See 38 C.F.R. § 3.271 (a)(3). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary’s annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. See 38 C.F.R. § 3.273 (c). The monthly rate of pension is computed by reducing the MAPR by the countable income on the effective date of entitlement and dividing the remainder by twelve. See 38 C.F.R. § 3.273 (a). The Board subtracts excluded income from the total amount of countable income in one year, and then subtracts that amount from the MAPR for that year; if a positive amount remains, it is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. See 38 C.F.R. § 3.273 (b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. See 38 C.F.R. § 3.273 (b)(2). Here, unfortunately, the Board must deny the appellant’s claim because his income exceeds the amount that would qualify him for pension benefits. The appellant does not have any dependents. In March 2014, the appellant reported to VA that the only income he receives is his monthly SSA benefit of $908.00. This is corroborated by an SSA report submitted the same month. Thus, a notification letter sent to the Veteran indicates an income of $10,560.00 annually. While this is lower than the annual income computed by multiplying $908.00 by 12, to equal $10,896, this amount still exceeds the MAPR for all years on appeal. Despite being advised of his rights via VCAA notices, the appellant has not submitted evidence of unreimbursed medical expense, or any other expenses which would reduce his countable income. In addition, he has not provided information indicating that his income has changed since 2013. Accordingly, the Board finds that even his lowest reported income ($10,560.00) exceeds the MAPR at the time his claim was filed ($8,359) by $2,201.00. The Board notes the appellant’s concern that the amounts stipulated in the MAPR may be outdated. Notwithstanding the fact that these amounts are updated every year, the Board advises the appellant that the MAPR pension is intended to provide a basic subsistence income for Veterans and their families, rather than a supplement to already-existing funds. In conclusion, since the date of the appellant’s claim, his countable income exceeds the rate of death pension paid to a surviving spouse with no dependents. As such, the appellant is precluded from receiving death pension due to excess income. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel