Citation Nr: 18155626
Decision Date: 12/04/18	Archive Date: 12/04/18

DOCKET NO. 15-17 051
DATE:	December 4, 2018
ORDER
Whether VA was correct to terminate death pension benefits effective September 1, 2012, due to excessive income is dismissed.
FINDING OF FACT
1.  Death pension benefits were awarded effective September 1, 2011. 
2.  Death pension benefits were terminated effective September 1, 2012, due to excessive income. 
3.  Dependency and indemnity compensation (DIC) was granted effective August 2, 2011; the first payment in the amount of $1,154.00, was made September 1, 2011.
4.  DIC benefits are the greater benefit.  
CONCLUSION OF LAW
The issue of whether VA was correct to terminate death pension benefits effective September 1, 2012, due to excessive income is dismissed.  38 U.S.C. § 5304 (2012); 38 C.F.R. § 3.700 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1962 to January 1982.  The Veteran died in August 2011.  The Appellant is the surviving spouse.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 decision, which reinstated and increased the Appellant’s death pension benefits effective September 1, 2011, and then terminated such benefits effective October 1, 2011, due to excessive income.  In September 2015, the RO increased death pension benefits effective October 1, 2011, and terminated such benefits September 1, 2012.  The issue on appeal has been recharacterized accordingly.  
Whether VA was correct to terminate death pension benefits effective September 1, 2012, due to excessive income is dismissed
According to regulations not more than one award of pension, compensation, emergency officers’ regular or reserve retirement pay, or initial award of naval pension granted after July 13, 1943, shall be made concurrently to any person based on such person’s own service or concurrently to any person based on the service of any other person. 38 U.S.C. § 5304 (a)(1); 38 C.F.R. § 3.700. 
Except as otherwise provided, a person entitled to receive pension or compensation under more than one law or section of a law administered by VA may elect to receive whichever benefit, regardless of whether it is the greater or lesser benefit, even though the election reduces the benefits payable to his or her dependents. Such person may at any time elect or reelect the other benefit. 
The Appellant was awarded DIC benefits (service connection for the cause of the Veteran’s death) effective August 2, 2011.  The first payment in the amount of $1,154.00, was made September 1, 2011.  See May 2016 notification letter.  The Appellant received death pension benefits as follows: $661.00, on September 1, 2011; $49.00, on October 1, 2011; and $10.25, on January 1, 2012.  See notification letters dated in September 2014 and September 2015.  The payment start date for both DIC and death pension benefits was September 1, 2011. 
The governing laws and regulations have long held that a person may not receive concurrent payments of compensation and pension benefits, and require the person to elect to receive one benefit or the other.  See 38 U.S.C. § 5304; 38 C.F.R. § 3.700. Although the Appellant is certainly entitled to elect to receive death pension benefits, to do so would not be to her collective benefit since the rate of DIC is the greater benefit. The Appellant, however, may not legally receive both DIC and nonservice-connected death pension benefits.  
Consequently, the issue of whether VA was correct to terminate death pension benefits effective September 1, 2012, due to excessive income is dismissed.         38 U.S.C. § 5304; 38 C.F.R. § 3.700.


 
E. I. VELEZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. L. Wallin, Counsel