Citation Nr: 1808275 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-29 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: Sheila F. Campbell, Attorney At Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran had active military service from November 1942 to August 1945. He died in May 2009. The appellant is the Veteran's widow. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2014, the appellant testified before the undersigned Veterans Law Judge (VLJ) during a video conference Board hearing. A transcript of the hearing is of record. In February 2015 and January 2017, the Board remanded the case for further development. The Board notes that an October 2017 VA Form 21-22a, Appointment of Individual as Claimant's Representative, attempts to appoint Lawrence Jackson with the Sheila F. Campbell Law Firm as the appellant's attorney. However, a review of VA's Office of General Counsel's database of attorneys accredited to practice before VA reflects that Mr. Jackson is not an accredited agent or attorney. Therefore, the October 2017 VA Form 21-22a is not a valid appointment. The most recent valid VA Form 21-22a is one submitted in March 2016 for attorney Sheila F. Campbell. As the invalid October 2017 VA Form 21-22a did not serve to revoke Ms. Campbell's representation of the appellant, the Board has listed her as the appellant's attorney. In a June 2017 rating decision, the RO denied the appellant's attempt to reopen a previously denied claim for Dependency and Indemnity Compensation under 38 U.S.C. § 1318. The appellant submitted a notice of disagreement with this determination in August 2017. The record reflects the RO is actively working on the appeal in this claim; therefore, the Board will not take further jurisdiction of the issue at this time. As noted in the prior February 2015 and January 2017 remands, the appellant filed a VA Form 21-601, Application for Accrued Amounts due to a Deceased Beneficiary. The Agency of Original Jurisdiction (AOJ) has not yet adjudicated this claim. Therefore, the Board does not have jurisdiction over the issue, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran served on active duty for more than 90 days during a period of war. 2. From July 1, 2009, the appellant's annual income (following deduction of excludable medical expenses) has exceeded the applicable Maximum Annual Pension Rate (MAPR) for a surviving spouse with no dependent children who is neither housebound nor in need of aid and attendance. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 1503, 1541, 5312 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.271, 3.272, 3.273 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). Neither the appellant nor her attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Legal Criteria, Factual Background and Analysis The appellant is the surviving spouse of a veteran who had qualifying wartime service; as such, she may be entitled to a rate of pension set by law, reduced by the amount of her countable income. 38 U.S.C. §§ 1541, 1543; 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if the veteran had qualifying wartime service or if the veteran at the time of death was receiving or was entitled to compensation for a service-connected disability based on service during a period of war. Qualifying service is service in the active military, naval, or air service for 90 days or more during a period of war (or other criteria not applicable in this case). 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.2, 3.3. In the present case, the Veteran had qualifying service of 90 days or more during a period of war; thus, that eligibility requirement is met. The annual income of the surviving spouse must not exceed the MAPR specified in 38 U.S.C. § 5312, increased from time to time as published in the Federal Register. 38 C.F.R. §§ 3.3, 3.23. The MAPR is published in the Compensation and Pension Service's manual, M21-1, and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21; see also www.benefits.va.gov/pension/current_rates_survivor_pen.asp. Income includes payments of any kind from any source during a twelve month period except for exclusions including unreimbursed burial expenses and medical expenses in excess of five percent of the pension rate. 38 U.S.C. § 1503; 38 C.F.R. § 3.271(a). Fractions of dollars are ignored when computing income. 38 C.F.R. §§ 3.271, 3.272. General living expenses for utilities, life insurance premiums, housing, and transportation (other than for medical care) are not excludable. If the appellant's income is less that the MAPR, VA will pay benefits to bring the income up to that level. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable MAPR by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Income from Social Security Administration (SSA) benefits, to include Social Security disability payments, is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Certain unreimbursed medical expenses may be excluded from countable income for the same 12-month annualization period to the extent they were paid. To be considered, the total expense must be in excess of five percent of the MAPR. 38 C.F.R. § 3.272. In the present case, the appellant was awarded $452 in death benefits from June 1, 2009, the difference between her countable income and the MAPR, following the death of her husband, but she was not entitled to nonservice-connected death pension benefits from July 1, 2009, due to her income exceeding the MAPR thereafter. A January 2015 rating decision further determined that the appellant was not entitled to aid and attendance or housebound benefits, which would have warranted a higher MAPR. The appellant did not appeal that determination. Therefore, consideration of her entitlement for nonservice-connected death pension must be at the rate for a survivor with no dependents. The MAPR for 2009 was $7,933 for survivors with no dependents. The 5 percent deductible threshold for medical expenses was $396. Records from the Social Security Administration (SSA) show the appellant received income benefits of $1052 monthly beginning July 1, 2009, for a total of $12,624 annually. She also submitted evidence that she received $192 monthly from a labor pension, for a total of $2,304, and a one-time payment of $255 for death benefits which is also counted as income. The appellant did not have any other form of annual income. Her total annual income was $15,183. Using the highest reported annual medical expenses ($2,162.00) and the final expenses following the Veteran's death ($3,650.00), after deducting the 5 percent rate ($396), the medical expenses and last expenses totaled $5,416.00. The total countable income was $9,767, well above the MAPR for 2009. For calendar year 2010, the MAPR remained $7,933 for surviving spouses without dependents, with a deductible of $396. SSA records show the appellant continued to receive $1,052 monthly for a total of $12,624 annually and she reported that she continued to receive a labor pension of $192 monthly for an annual total of $2,304. The one-time death benefit of $255 was also included in the annual income totalling $15,183. The appellant's highest reported annual medical expenses ($362) were not greater than the pension deductible, and her total countable income was $15,183, well above the MAPR for 2010. The MAPR and corresponding deductible did not change for calendar year 2011. Likewise, the appellant's annual income from SSA was $12,624 and $2,304 from a labor pension, for a total of $14,928. The highest reported annual medical expenses ($467) less the deductible totaled $71. Thus, the total countable income was $14,857, well above the $7,933 MAPR for calendar year 2011. In calendar year 2012, the MAPR was $8,219 and the 5 percent deductible was $410. SSA income was reported as $1,089 monthly for $13,068 annually and a labor pension that remained $2,304 annually for a total annual income of $15,372. Using the highest reported annual medical expenses ($440) less the deductible totaled $30, with the total countable income calculated as $15,342, above the MAPR for calendar year 2012. For calendar year 2013, the MAPR was $8,359 for surviving spouses without dependents, with a deductible of $417. SSA records show the appellant received $1,108 monthly for $13,296 annually and she reported that she continued to receive a labor pension of $192 monthly for $2,304 annually, for a total annual income of $15,503. The appellant's highest reported annual medical expenses ($514) less the 5 percent pension deductible totaled $97, and her total countable income was $15,503, well above the MAPR for 2013. The MAPR for 2014 was $8,485 for survivors with no dependents. The 5 percent deductible threshold for medical expenses was $424. Records from SSA show the appellant received income benefits of $1125 monthly, for a total of $13,500 annually. She also reported that she continued to receive $2,304 annually from a labor pension, for a total annual income of $15,804. The highest reported annual medical expenses ($796) less the pension deductible totaled $372 in medical expenses. The total countable income was $15,432, well above the MAPR for 2014. For calendar year 2015, the MAPR was $8,630 for surviving spouses without dependents, with a deductible of $431. SSA records show the appellant received $1,144 monthly for $13,728 annually and she reported that she continued to receive a labor pension of $192 monthly for $2,304 annually, for a total annual income of $16,032. The appellant's highest reported annual medical expenses ($489) less the 5 percent pension deductible totaled $58, and her total countable income was $15,974, well above the MAPR for 2015. The MAPR and corresponding deductible did not change for calendar year 2016. Likewise, the appellant's annual income from SSA was $13,728 and $2,304 from a labor pension, for a total of $16,032. The highest reported annual medical expenses ($1,242) less the deductible totaled $811. Thus, the total countable income was $15,221, well above the $8,630 MAPR for calendar year 2016. For calendar year 2017, the MAPR was $8,656 for surviving spouses without dependents, with a deductible of $432. SSA records show the appellant received $1,147 monthly for $13,764 annually and she reported that she continued to receive a labor pension of $192 monthly for $2,304 annually, for a total annual income of $16,068. The appellant's highest reported annual medical expenses ($592) less the 5 percent pension deductible totaled $160, and her total countable income was $15,908, well above the MAPR for 2017. During the course of the appeal, the appellant also submitted copies of her utility bills and of legal fees associated with her bankruptcy. While the Board is sympathetic to the appellant's loss and recognizes the Veteran's honorable service to his country, it is bound by the law and regulations governing the payment of VA benefits. Utility bills, as well as legal fees for bankruptcy are not expenses that may be used to reduce the appellant's countable income. Although the appellant has submitted conflicting medical expense reports for the same fiscal years during the pendency of her appeal, in an April 2017 telephone conversation with VA, she stated that the medical expense reports submitted in April 2017 were the most accurate. The Board has attempted to use the medical expense reports most favorable to the appellant and identified as most accurate in calculating her countable income during the pendency of the appeal. Because Congress prohibits the payment of VA death pension to those whose countable income exceeds statutory limits, and the appellant's income exceeds those limits throughout this appeal, she is not legally entitled to nonservice-connected death pension benefits, and the claim is denied. 38 C.F.R. § 3.273. ORDER The claim for nonservice-connected VA death pension benefits is denied. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs