Citation Nr: 18160231 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 11-15 937 DATE: December 26, 2018 ORDER The creation of an overpayment of VA death pension benefits in the amount of $24,166.50 was valid. FINDING OF FACT The appellant received greater VA death pension benefits that she was entitled to receive due to misreported Social Security income from herself and her children from 2005 to 2009. CONCLUSION OF LAW The overpayment of VA death pension benefits to the appellant in the amount of $24,166.50 was validly created. 38 U.S.C. §§ 1541, 5302 (2012); 38 C.F.R. §§ 1.911, 1.962, 3.23 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to October 1972. The Veteran died in December 2004. The appellant is his surviving spouse. This matters initially came before the Board of Veterans’ Appeals (Board) on appeal of a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In April 2014, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. In compliance with the Board’s remand instructions, the AOJ requested documentation from the Social Security Administration (SSA) indicating all benefits payments and income for the appellant and her dependent children from the period from 2005 to 2009, and provided an accounting showing how the AOJ arrived at the amount of overpayment. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The case has since returned to the Board for the purpose of appellant disposition. As noted in the Board’s previous remand, the appellant in April 2010 timely raised a claim for recovery of an overpayment of VA benefits in the amount of $24,166.50. While a decision on waiver of indebtedness was issued in September 2010 finding the appellants request untimely, this was based upon a September 2010 correspondence from the appellant. This matter is again referred to the AOJ for appropriate action. 1. Whether the creation of an overpayment of VA death pension benefits in the amount of $24,166.50 was proper. The appellant contends that the debt she has been charged with by VA is not valid. This is the only issue before the Board, as the Board has referred the matter of entitlement to waiver of the indebtedness. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from most benefits programs administered pursuant to VA law including, most pertinent to this case, death pension benefits. 38 C.F.R. § 1.956(a). Non-service connected death pension is an income-based benefit for low income qualifying survivors, and the maximum rate of death pension benefits that may be paid is set by law. An otherwise qualifying claimant will be paid up to the maximum rate, reduced by the amount of his or her 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 pension rate (MAPR) is published in relevant VA manuals and is given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. VA regulations state that income of a child in the custody of the surviving spouse will be included if it is reasonably available to or for the surviving spouse. A hardship exclusion of a child's income may be granted if the family's expenses necessary for reasonable family maintenance are higher than the countable annual income, including VA pension entitlement. When hardship is established, the amount of this exclusion shall not exceed the available income of any child or children. 38 C.F.R. §§ 3.23(d)(6), 3.272(m). Under VA law, the term "child," as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household at the time of the veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57(a)(1). In this case, the appellant was awarded death pension benefits effective January 2005. The payment rate varied based upon the appellant’s income and the number of her children who qualified as dependent. In October 2009, the appellant was notified that there was an overpayment of death pension benefits for the period from 2005 to 2009, as Social Security income for the appellant and her children was not properly counted. The record reflects that the appellant has three children, OD (birthdate in December 1983, turned 18 in December 2001), R (birthdate in March 1987, turned 18 in March 2005), and [redacted] (birthdate in December 1988, turned 18 in December 2006). Based upon the appellant’s report regarding her children’s education, OD was removed from her award March 2010 (his 23rd birthday), R was removed from the award in December 2006 (his 23rd birthday), and T was removed in June 2011 (completion of education). Based upon these reports, the applicable MAPRs are as follows: $12,389 from January 2005; $12,899 from December 1, 2005; $13,326.00 from December 1, 2006 until December 18, 2006, and $11,460 from December 19, 2006 (R removed from award); $11,724 effective December 1, 2007; and $12,405 effective December 1, 2008. Social Security records document that in 2005, OD received $3,036 in Social Security benefits from February 2005 to June 2005. This income is countable for the 12-month period beginning the first month of receipt, or from March 1, 2005 until March 1, 2006. As of February 2005, the appellant’s child T received $506 per month, as well as a retroactive payment of $506. In December 2005, her award was increased to $526 per month, and to $544 in December 2006. She stopped receiving benefits in May 2007. In 2008, the appellant was awarded Social Security benefits. She received a retroactive payment of $4,284 in February 2008, and monthly benefits of $530 starting in February 2008. In September 2008, her benefits were decreased to $467. As of December 2008, the appellant’s monthly benefits were increased to $498. The appellant’s family income is subtracted from the applicable MAPR to determine the amount of remaining benefit. As of February 2006, the proper amount of monthly pension benefits was $353. From March 2006 until December 2006, the proper rate of payment was $548 per month and $566 from December 18, 2006 (after R was removed from the award); however, the appellant received $594 per month from February 2006 November 2006, $924 per month from December 1, to December 18, 2006, and $644 per month from December 19, 2006. For this period, she was paid $6,288.43, when she was entitled to receive $5,605.73, resulting in overpayment of $682.70. From December 18, 2006 through June 2007, the appellants only income was from T’s Social Security benefits. The appellant received $489 per month in benefits, but her monthly rate should have been $411 per month. This resulted in overpayment of $990.80 ($3,634.90-$2,644.10). From July 2007, T was no longer receiving Social Security benefits. The appellant was therefore entitled to $955 per month in pension benefits, which is what the record reflects she received; however, she was entitled to receive benefits for an additional month, resulting in underpayment of $955.00. For the two-month period from December 2007 to January 2008, the appellant was entitled to receive $977 and received this amount. As of January 2008, the appellant began receiving Social Security benefits and her income therefore exceeded the MAPR for that year. Accordingly, she was no longer entitled to death pension benefits. However, she continued to receive a payment of $977 per month until January 2010, resulting in further overpayment. She received $25,402.00 in payments, when she was only entitled to received $1,954.00 for the period from December 1, 2007 to January 31, 2008. This resulted in overpayment of $23,448.00 The appellant was paid a total of $39,145.33 in benefits. However, based upon her family income, she was only entitled to receive $14,978.83 in benefits, resulting in an overpayment of $24,166.50. The Board concludes that the overpayment was properly created as the appellant received death pension benefits to which she was not entitled. The appeal is denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel