Citation Nr: 18152763 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-14 115 DATE: November 26, 2018 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The Appellant’s annual countable income, after deducting allowable exclusions, exceeds the maximum annual pension rate for a surviving spouse with no dependents. CONCLUSION OF LAW The criteria for nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 1521, 1541 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1954 to January 1957, which satisfies the wartime service requirements for nonservice-connected pension benefits. He died in August 2013. The Appellant is his surviving spouse. A pension is available to the “surviving spouse” of a Veteran following the Veteran’s death due to nonservice-connected disabilities, as long as the Veteran served for the required period of time during wartime, subject to certain income limitations. See 38 U.S.C. §§ 101, 1541; 38 C.F.R. §§ 3.3, 3.23. The surviving spouse of a Veteran who met the wartime service requirements will be paid the maximum rate of pension (MAPR), reduced by the amount of the spouse’s countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273. 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. The MAPR is adjusted from year to year. If the claimant’s income is less than the MAPR, VA will pay benefits to bring his or her income up to that level. If the claimant’s income exceeds the MAPR, nonservice-connected death pension benefits are not warranted. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271. Payments from the Social Security Administration (SSA) are not excluded under 38 C.F.R. § 3.272; therefore, they are considered countable income. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable MAPR by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). The record establishes the Appellant received approximately $1,422.90 per month from the Social Security Administration (SSA) at the time of her September 2013 pension claim. The MAPR for a surviving spouse with no dependents was $8,359.00 at that time. As such, the Appellant’s annual countable income exceeded the applicable MAPR by approximately $6,936.00 during the initial annualization period for her pension claim based solely on her SSA income. The Appellant has never reported more than $4,000.00 in allowable exclusions during any one annualization period. Cost-of-living adjustments for SSA benefit payments are consistent with adjustments in the MAPR. Compare Social Security Administration, Cost-of-Living Adjustment Information, https://www.ssa.gov/cola/ with U.S. Dep’t Veterans Affairs, Veterans Pension Rate Table, https://www.benefits.va.gov/PENSION/current_rates_survivor_pen.asp (last visited November 19, 2018). Therefore, the Board finds the Appellant’s annual countable income, after deducting allowable exclusions, has exceeded the MAPR for a surviving spouse with no dependents throughout the appeal period. In reaching this conclusion, the Board fully acknowledges the statement the Appellant submitted in conjunction with her February 2015 substantive appeal in which she asked VA to consider expenses beyond her reported medical expenses, to include expenses related to her granddaughter’s college eduction. These types of expenses outlined by the Appellant in her February 2015 substantive appeal are not excludable expenses for pension purposes; therefore, the Board has no discretion in this matter and cannot consider them in the analysis of the Appellant’s pension eligibility. See 38 C.F.R. § 3.272. VA cannot pay a benefit that has not been authorized by Congress no matter how compelling the equities present may be. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) (“No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.”). In sum, the Board finds the undisputed facts in this case establish the Appellant’s countable annual income, after deducting allowable exclusions, exceeds the MAPR for a surviving spouse with no dependents. As such, her claim for nonservice-connected pension benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel