Citation Nr: 18157335 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 14-08 527 DATE: December 13, 2018 ORDER Entitlement to increased non-service connected death pension benefits with aid and attendance is denied. FINDING OF FACT The appellant is already in receipt of death pension benefits representing the maximum rate of death pension for a surviving spouse in need of aid and attendance, reduced by the amount of her countable income, for the period on appeal. CONCLUSION OF LAW The criteria for increased VA nonservice-connected death pension benefits are not met. 38 U.S.C. §§ 1503, 1521 (2012); 38 C.F.R. §§ 3.3(b), 3.23, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1945 to June 1948, and from March 1951 to July 1956. He died in December 1992. The appellant is his surviving spouse. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In February 2018, the Board remanded the matter on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The matter has since returned to the Board for the purpose of appellate disposition. As instructed in the Board's remand, the AOJ requested that the appellant provide information pertaining to her income and unreimbursed medical expenses since 2010, and was provided VA Forms 21P-8416 (Medical Expense Report) and 21-0518-1 (Improved Pension Eligibility Verification Report). The appellant did not submit any additional information regarding her income and expenses. As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board finds that the AOJ's efforts in attempting to obtain additional information was sufficient, and it need not further attempt to secure response from the claimant. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). Entitlement to Increased Non-Service Connected Death Pension Benefits with Aid and Attendance Nonservice-connected death pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 C.F.R. § 3.3 (b)(4). A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of 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 rate of improved pension for a surviving spouse is specified by statute and is increased periodically under 38 U.S.C. § 5312. See 38 C.F.R. § 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 annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Civilian compensation for injury or death, i.e., disability benefits, paid by the Social Security Administration (SSA) is specifically included as countable income. 38 C.F.R. § 3.271(g). Additionally, wage/salary income, retirement pension benefits from private companies, and retirement income from the SSA are not specifically excluded under 38 C.F.R. § 3.272; such income is therefore included as countable income. Medical expenses in excess of five percent of the applicable maximum annual pension rate (MAPR), which have been paid, may be excluded from an individual’s income for the same 12-month period, to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(iii). In order to be excluded from income, these medical expenses must be paid during the time 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. Additionally, under 38 C.F.R. § 3.272, amounts paid by a spouse before the veteran’s death for expenses of the veteran’s last illness will be deducted from the income of the surviving spouse. 38 C.F.R. § 3.272(h)(1)(i). Likewise, amounts paid by a surviving spouse or child of the veteran for the veteran’s just debts, expenses of last illness, and burial (to the extent such burial expenses are not reimbursed under chapter 23 of title 38 U.S.C.) will be deducted from the income of the surviving spouse or child. 38 C.F.R. § 3.272 (h)(1)(ii). Similarly, expenses of last illnesses, burials, and just debts that are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant’s advantage. 38 C.F.R. § 3.272(h). Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. Id. Under 38 C.F.R. § 3.272, the following shall also be excluded from countable income for the purpose of determining entitlement to nonservice-connected death pension benefits: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; and joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner). The rates of death pension benefits (MAPR) are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 (M21-1) and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. The MAPR is generally revised every December 1st, based upon Federal data as to the increase in the cost of living, and is applicable for the following 12-month period. A higher MAPR is available for a surviving spouse with no dependents who is in regular need of aid and attendance. As per the January 2011 rating decision, the appellant was found to qualify for the aid and attendance MAPR with no dependents. Therefore, in the analysis that follows, consideration of such MAPR shall be afforded to the appellant. The appellant filed the instant claim for pension in November 2010. As applicable to the current claim, the applicable MAPR for death pension for a surviving spouse with no dependents based upon the need for regular aid and attendance were as follows: $12,681.00, effective December 1, 2010; $13,138.00, effective December 1, 2011; $13,362.00, effective December 1, 2012; $13,563.00, effective December 1, 2013; $13,794.00, effective December 1, 2014; $13,794.00, effective December 1, 2015; $13,836.00, effective December 1, 2016; $14,113.00, effective December 1, 2017. See 38 C.F.R. § 3.23 (a)(5); M21-1, Part I, Appendix B. The appellant has reported that her only income is Social Security benefits. She has not provided any additional information on other income, medical expenses, or deductions. Social Security data match information indicates that, as of December 1, 2010, her annualized Social Security Income was $9,828.00. She was therefore eligible for the remaining balance of the MAPR of $12,681.00—$2,853.00, or a monthly payment of $237. As of December 1, 2011, her annualized Social Security income was $10,176.00. Subtracting this amount from the MARP for that year of $13,138.00 leaves a remaining balance of $2,962, or $246 per month. In December 1, 2012, the appellant’s annual Social Security benefits totaled $10,356, leaving a remaining balance of $3006, or $250 per month. In December 1, 2013, annual Social Security Benefits totaled $10,512.00, leaving a remaining balance of $3051, or $254 per month. As of December 1, 2014, annual Social Security Benefits totaled $10,692.00, leaving a remaining balance of $3102, or $258 per month. As of December 1, 2016, her annual Social Security Benefits totaled $10,716.00, leaving a remaining balance of $3120, or $260 per month. As of December 1, 2017, her annual Social Security Benefits were $911 per month, totalling $10,932. Subtracting this amount from the applicable MAPR leaves a remaining balance of $3,180, or $265 per month. A March 2018 communication to the appellant reflects that the appellant actually received monthly payments greater than those noted above ($251 per month from December 2012, $256 per month from December 2013, $261 from December 2014, $263 from December 2016, and $269 from December 2017), resulting in an overpayment of non-service connected death pension benefits. Therefore, the appellant is not entitled to an increased amount of nonservice-connected death pension benefits. See 38 C.F.R. § 3.23. 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