Citation Nr: 18160174 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 18-19 796 DATE: December 27, 2018 ORDER Entitlement to an adjustment to nonservice-connected death pension benefits, to include reinstatement of benefits effective May 1, 2016, is denied. FINDING OF FACT The appellant failed to provide the requested information regarding medical expenses, including caregiver and prescription payments. CONCLUSION OF LAW The criteria for entitlement to an adjustment to nonservice-connected death pension benefits, to include reinstatement of benefits effective May 1, 2016, have not been met. 38 U.S.C. §§ 1503, 1521 (2018); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1952 to November 1954. He died in April 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which awarded entitlement to death pension benefits and entitlement to an additional allowance based on the need for aid and attendance, effective May 1, 2015, but found that the appellant’s countable income exceeded the maximum annual death pension rate, effective May 1, 2016. The appellant filed a timely Notice of Disagreement (NOD), received in June 2017, upon which the appellant disagreed with the calculation of her countable income. A Statement of the Case (SOC) was issued in February 2018. A timely substantive appeal was received in April 2018. Background As noted supra, the appellant meets the criteria for entitlement to death pension benefits and an additional allowance based on the need for aid and attendance, effective May 1, 2015. However, the RO found that her countable income exceeded the maximum annual death pension rate, effective May 1, 2016. The appellant disagrees with the computation of her countable income for the entire period on appeal. In effect, she contends that she is entitled to a greater amount of death pension for the period prior to May 1, 2016, and that she is entitled to death pension since such date. On her June 2015 VA Form 21-534EZ, she reported that her net worth was $100 in cash/non-interest bearing bank accounts. She received $924.30 monthly from Social Security and $468.92 monthly from a state pension. The appellant submitted Puerto Rico monthly pension statements in June 2015. Such indicated that she received $1,204.63 monthly, while the net distribution was $468.92. A “Patient IRS Statement” from Farmacia Profesional indicates that the appellant paid $51.08 in May 2015 for prescriptions. An August 2015 SSA Inquiry indicates that the appellant received $1,721.90 monthly from Social Security beginning in April 2015. The SMI premium amount was $84.90 monthly. A November 2015 SSA Inquiry confirms these amounts. In a November 2015 decision, VA explained that the appellant’s income for VA purposes was calculated as $19,902. Income included $797.90 per month from Social Security, $1,204.63 as the gross ELA benefit based on the submitted statement, although the appellant had reported that she only received $468.92 monthly. A $255 one-time Social Security death benefit was also counted. Expenses included $1,018 in Medicare Part B premiums, based on information received from the Social Security Administration, although it was noted that the appellant reported paying $1,258.80. Caregiver and medicine fees were not counted because such were paid in 2014. $3,795 in last expenses was counted. Her income for VA purposes exceeded the MAPR. An Attendant Affidavit was received in May 2016, which indicated that A.B. was paid $1,700 monthly by the appellant since January 1, 2015. An August 2016 SSA Inquiry states that the appellant’s SMI premium amount was $84.90 monthly and that she continued to receive $1,721.90 monthly. In the August 2016 decision on appeal, VA amended the death pension award and found that she was entitled to $1,149, effective May 1, 2015, and $267 monthly, effective June 1, 2015. However, her countable income exceeded the MAPR, effective May 1, 2016. The appellant submitted a Medical Expense Report in September 2016, upon which she reported that she paid $1,258.80 in Medicare Part B premiums, $6,900 for medicine, and $24,000 in caregiver expenses from January 1, 2015, through December 31, 2015. An accompanying Attendant Affidavit indicated that A.B. was paid $2,000 monthly by the appellant from January 1, 2015, through December 31, 2015. A statement from A.B., received in July 2017, indicates that A.B. is the appellant’s child and that the appellant’s medical expenses are very high. In November 2017, VA requested that the appellant’s medical expenses from April 2015 through December 2015, January 2016 through April 2016, May 2016 through December 2016, and January 2017 to the present be reported on the enclosed Medical Expense Report forms. Medical Expense Reports were received in November 2017. The first covered the period from April 2015 through December 2015. Such indicated that $936 was paid for Medicare Part B, $6,075 was paid for medicine, and $18,000 was paid in caregiver’s expenses. The Medical Expense Report which covered the period from January 2016 through April 2016 indicated that $416 was paid for Medicare Part B, $2,300 was paid in for medicine, and $8,000 was paid in caregiver’s expenses. The Medical Expense Report which covered the period from May 2016 through December 2016 indicated that $832 was paid for Medicare Part B, $4,600 was paid for medicine, and $16,000 was paid in caregiver’s expenses. The Medical Expense Report which covered the period from January 2017 through December 2017 indicated that $1,258 was paid for Medicare Part B, $9,000 was paid for medicine, and $24,000 was paid in caregiver’s expenses. A November 2017 Attendant Affidavit stated that A.B. was paid $2,000 monthly from January 2015 through December 2015. A January 2018 letter requested that the appellant provide proof of the monthly caregiver payments. It was noted that proof could be in the form of cancelled checks or bank statements. It was also noted that the date of the reported increase in monthly cost was contradictory with previously-submitted evidence; thus, clarification was requested. It was requested that a statement from the pharmacy be provided which showed costs for prescription medicines for the periods April 2015 through December 2015, January 2016 through April 2016, and May 2016 through December 2016. A VCAA Notice Response was received in January 2018, upon which it was reported that the appellant had no remaining evidence to submit. In response, an Attendant Affidavit was submitted in January 2018. Such indicated that A.B. was paid $1,700 from January 2015 to the present. Such was a copy of the Attendant Affidavit received in May 2016. The February 2018 SOC noted that the August 2016 letter had incorrectly stated that the appellant’s reported annual retirement income. Rather, based on the monthly income amount of $1,204.63, such was $14,455 annually, rather than $12,445. In the appellant’s April 2018 substantive appeal, it was noted that corrected information regarding monthly income and expenses was enclosed. A copy of the May 2016 Attendant Affidavit was submitted, which indicated that A.B. was paid $1,700 monthly from January 2015. A February 2016 pension statement indicated that the appellant received $1,204.63 monthly. Applicable Law 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). 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. The rates of death pension benefits are published in tabular form in appendix B of the 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. Effective December 1, 2014, the maximum allowable rate for a surviving spouse, in need of the aid and attendance of another, with no dependents was $13,794. Effective December 1, 2016, the maximum allowable rate for a surviving spouse, in need of the aid and attendance of another, with no dependents was increased to $13,836. Effective December 1, 2017, the maximum allowable rate for a surviving spouse, in need of the aid and attendance of another, with no dependents was increased to $14,113. Effective December 1, 2018, the maximum allowable rate for a surviving spouse, in need of the aid and attendance of another, with no dependents was increased to $14,509. See Survivors Pension Rate Tables, https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp (last accessed 16 December 2018). Whenever there is a change in the maximum annual pension rate, the monthly rate of pension payable shall be computed by reducing the new applicable maximum annual pension rate by countable income on the effective date of the change in the applicable maximum annual pension rate, and dividing the remainder by 12. 38 C.F.R. § 3.273(b)(1). Whenever there is a change in the beneficiary’s amount of countable income, the monthly rate of pension payable shall be computed by reducing the beneficiary’s applicable maximum annual pension rate by the beneficiary’s new amount of countable income on the effective date of the change in the amount of income, and dividing the remainder by 12. 38 C.F.R. § 3.273(b)(2). Analysis The Board finds that an adjustment to nonservice-connected death pension benefits, to include reinstatement of benefits effective May 1, 2016, is not warranted. VA properly counted the amounts of the monthly SSA and Medicare received from SSA, rather than the appellant’s reported amounts. The Board assigns greater probative weight to the amounts reported by the agency, as there is a well-established presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Further, the gross monthly payments from the appellant’s Puerto Rico pension were properly counted, rather than the net amount reported by the appellant. While the appellant reported unreimbursed medical expenses in the form of caregiver payments and prescription payments, only the “Patient IRS Statement” from Farmacia Profesional reports prescription payments in May 2015 in the form requested by VA, a statement from the pharmacy which indicates when payments were actually made. The Board observes that the appellant has reported additional caregiver and prescription expenses which, had the requested proof of payments been received, would likely substantially decrease the appellant’s countable income during the period on appeal. Again, a January 2018 letter from VA requested proof of the caregiver monthly payments, in the form of cancelled checks or bank statements, and pharmacy statements indicating how much was paid for prescriptions, and when. In response to this, the appellant submitted a duplicate attendant affidavit but did not provide the requested documentation. This has not escaped the attention of the appellant’s representative, who noted in the November 2018 informal hearing presentation that, in response to such January 2018 letter, only a duplicate attendant affidavit and a statement that there was no further evidence to submit was sent to VA. Although VA has a duty to assist the appellant in the development of the claim, such duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Rather, the appellant also has an obligation to assist in the adjudication of his claim. “If a veteran 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, 1 Vet. App. at 195. The appellant has had ample opportunity to submit the requested information, but apparently chose not to do so. When calculating countable income, when unreimbursed medical expenses were paid by the appellant is of paramount importance. The Board concludes that the appellant is not entitled to an adjustment to nonservice-connected VA death pension benefits. Absent evidence of proof of when unreimbursed medical expenses were paid that is necessary to determine entitlement to an adjustment, there is no basis upon which to adjust the appellant’s countable income and the claim of entitlement to an adjustment of death pension benefits must be denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel