Citation Nr: 18158675 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-20 556 DATE: December 18, 2018 ORDER Entitlement to accrued benefits is denied. Entitlement to death pension is denied. FINDINGS OF FACT 1. At the time of his death, the Veteran did not have any pending claims before VA. 2. The Appellant’s countable income exceeds the maximum annual pension rate payable to a surviving spouse with no dependents. CONCLUSIONS OF LAW 1. The claim for accrued benefits must be denied by operation of law. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. 2. The criteria for entitlement to nonservice-connected death pension have not been met. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23, 3.24, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1972 to April 1973. The Veteran died in February 1993. The Appellant is his surviving spouse. In May 2018, a video hearing was held before the undersigned. A transcript of that hearing is of record. 1. Entitlement to accrued benefits Accrued benefits are those benefits to which a payee was entitled at the time of his or her death under an existing rating or based on evidence in the file at the date of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). “Evidence in the file at date of death” means evidence in VA’s possession on or before the date of the beneficiary’s death, even if such evidence was not physically located in the VA claims file on or before the date of death. 38 C.F.R. § 3.1000(d)(4). For a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his or her death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a); 38 C.F.R. § 3.1000(a). Such claims must have been filed within one year of the veteran’s death. 38 C.F.R. § 3.1000(c). Such payments may be made, in order, to the Veteran’s surviving spouse, his children in equal shares, or his dependent parents in equal shares. 38 C.F.R. § 3.1000 (a)(1)–(4). In all other cases, only so much of accrued benefits may be paid as may be necessary to reimburse the person who bore the expenses of last sickness or burial. 38 C.F.R. § 3.1000(a)(5). A “surviving spouse” is defined as a person who was the spouse of a Veteran at the time of the Veteran’s death, who lived with the Veteran continuously from the date of marriage to the date of the Veteran’s death (except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the spouse) and, except as provided in § 3.55, has not remarried or has not since the death of the Veteran and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person; and has not remarried. 38 C.F.R. § 3.50. The Appellant is undisputedly the surviving spouse of the Veteran. See Certificate of Marriage (submitted with August 2014 claim form). Unfortunately, her claim of entitlement to accrued benefits must be denied because the Veteran had no pending claims at the time of his death. As noted during the May 2018 hearing, the Veteran never filed a claim for VA benefits and never sought treatment at a VA medical facility. Furthermore, the Appellant has made no argument regarding entitlement to reimbursement for expenses of last sickness or burial. For these reasons, the claim of entitlement to accrued benefits must be denied. 2. Entitlement to death pension In general, the surviving spouse of a Veteran is entitled to receive nonservice-connected death pension benefits if the Veteran had qualifying service and 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 applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). For VA purposes, a marriage is considered valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). Under applicable criteria, payments of death pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272. Exclusions from countable income for the purpose of determining entitlement to pension also include amounts paid for a Veteran’s just debts and expenses of last illness and burial, to the extent such burial expenses were not reimbursed by VA. 38 C.F.R. § 3.272. The maximum annual rates of improved pension are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. Effective January 1, 2014, the maximum allowable rate for a surviving spouse with no dependents is $8,630. The Appellant and the Veteran were married in August 1983. See Certificate of Marriage (submitted with August 2014 claim form). The Veteran died in February 1993. There is no indication that the Appellant remarried after the Veteran’s death. The Appellant submitted an application for death pension in August 2014. She indicates annual earnings of $60,000 in gross wages and salary. As reported during the May 2018 hearing, she has no dependents and no unreimbursed expenses for the last year. Although the Appellant is the Veteran’s surviving spouse, death pension must be denied because the Veteran does not meet the income requirement for entitlement to nonservice-connected death pension benefits. The Appellant’s annual income of $60,000 is well in excess of the maximum annual pension rate of $8,630.00. Absent any indication of additional unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, pension is not payable. The Appellant has not provided any evidence that her countable income was lower than the applicable maximum annual rates of improved pension rates from 2014 to the current year, 2018. While the Board empathizes with the Appellant’s loss of her husband and her financial difficulties, given the available record regarding her countable income and exclusions, there is no legal basis upon which to award nonservice-connected death pension benefits. In summary, the Appellant’s income exceeds the statutory limits and she is not legally entitled to death pension benefits. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104. No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel