Citation Nr: 1808740 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-14 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether the appellant's countable income for nonservice-connected death pension benefits, for the period from January 1, 2009, to December 31, 2009, was properly calculated. ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty for 10 years, from November 1952 to November 1962; he died in March 1995. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 determination issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying appellant's request to revise the amount of her death pension benefits. The appellant requested a Board hearing in her Form 9 substantive appeal. The RO scheduled a hearing and sent notice to the appellant in August 2017. However, she did not appear for the hearing, and the hearing request was effectively withdrawn. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the amount of the appellant's death pension payments from January 1, 2009, to December 31, 2009, was incorrectly calculated based on her countable annual income. CONCLUSION OF LAW The criteria for entitlement to a higher rate of death pension payments from January 1, 2009, to December 31, 2009, have been met. 38 U.S.C. §§ 1503, 1521, 1541 (2012); 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.102, 3.271, 3.272, 3.273 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record does not contain a notice advising the appellant of the information and evidence necessary to substantiate her claim for increased death pension benefits. However, in August 2009, one month prior to receipt of the claim for increased death pension benefit payments, VA sent the appellant a letter explaining how her payment amount was calculated. 08/19/2009, Notification (Legacy). In December 2009, VA sent the appellant a letter requesting that she submit a medical expense report, and providing the opportunity to submit additional evidence. 12/16/2009, Notification (Legacy). The appellant did not comply with VA's request to submit a medical expense report, but she did submit additional evidence. Furthermore, a March 2014 statement of the case contained a listing of the applicable laws and regulations concerning calculating death pension benefits. Accordingly, the Board finds that the appellant was not prejudiced by the failure to provide such notice prior to initial adjudication of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33 (2016) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."). Next, VA has a duty to assist the appellant in the development of her claim. The Board observes that the appellant's nonservice-connected pension claim is controlled by her level of annual income and claimed medical expenses. As such, there is no medical controversy and development of any medical evidence would have no bearing on the decision rendered below. The appellant has provided financial information for the period in question, and VA has obtained her pertinent Social Security Administration (SSA) income records. 38 U.S.C. § 5103A (2012), 38 C.F.R. § 3.159 (2017). The appellant has also been provided the opportunity to submit evidence of unreimbursed medical expenses. The Board notes that the medical expenses claimed by the appellant are not in dispute; in fact, the Board applied the benefit of the doubt in calculating deductible expenses so as to reach the result most favorable to the appellant based on the amounts claimed in the medical expense reports she submitted. The appellant has not asserted, and the record does not otherwise show, that there is any additional unobtained evidence relevant to her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). II. Countable Income Death pension benefits may only be paid if the surviving spouse's income is below a certain amount, called the "maximum allowable pension rate" (MAPR). This is the amount of pension she would be entitled to if she did not have any income at all. If she has income, but it is less than this maximum amount, this income will be subtracted from the amount of pension she receives. In other words, for every dollar of income she receives, the pension is reduced by that amount. If, however, her income is higher than the MAPR, she is not entitled to any pension. See 38 U.S.C. § 1541; 38 C.F.R. § 3.23. In determining countable income for purposes of entitlement to death pension, payments of any kind from any source are counted as income during the 12-month period in which received unless specifically excluded under 38 C.F.R. § 3.272. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. As is relevant here, income from SSA benefits is not specifically excluded under VA's governing regulations and therefore is included as countable income. 38 C.F.R. § 3.271(g). Correspondence from the SSA demonstrates that for the period on appeal, the appellant received monthly SSA payments of $360.00 in retirement benefits and $291.00 in survivor pension benefits, for a total monthly payment of $651.00, or $7,812.00 annually. 09/16/2009, SSA Letter (Legacy). On multiple occasions, the appellant contended that her monthly SSA payments for the period on appeal were $308.00 and $279.00, respectively. See 07/06/2010, VA 21-4138. At other times, the appellant has stated that she received monthly SSA benefits in the amounts of $360.00 and $291.00, respectively. See 09/16/2009, Eligibility Verification Report (Legacy). Regarding the monthly amount of SSA benefits received by the appellant, the Board assigns more probative weight to correspondence from SSA, the agency charged with tracking such information, than the appellant's contentions without corroborating evidence. Accordingly, the Board finds that the weight of the competent and probative evidence preponderates in favor of finding that during the period on appeal, the appellant's income was $651.00 monthly, or $7,812.00 annually. Certain unreimbursed medical expenses may be excluded from the calculation of a surviving spouse's income if they were paid for the benefit of the spouse and were in excess of five percent of the applicable MAPR for spouses. 38 C.F.R. § 3.272(g). In January 2009, VA received a Medical Expense Report, VA Form 21-8416, submitted by the appellant, claiming the following expenses from October 2008 to October 2009: $1,118.00 for medication; $20.00 for co-pays, and $60.00 in transportation expenses, for a total of $1,198.00, annually. 01/15/2009, Medical Expense Report (Legacy). In calculating the appellant's countable income for the relevant period, the agency of original jurisdiction (AOJ) deducted $1,198.00 in medical expenses. 08/19/2009, Notification (Legacy). In September 2009, VA received a statement from the appellant, clarifying that her expenses for transportation to medical appointments were $60.00 monthly, not annually. 09/21/2009, VA 21-4138 (Legacy). In September 2009, the appellant submitted a revised Medical Expense Report, which claimed medical expenses of $105.14 for medication and $1,440.00 for transportation to medical appointments. 09/16/2009, Medical Expense Report (Legacy). Based on the totality of the evidence, it appears that the appellant was not consistent in reporting expenses on either a monthly or annual basis. Taking into account that the appellant is unrepresented, and applying the benefit-of-the-doubt in her favor, the Board makes several findings, as follows. Regarding medication, the Board will give the appellant the benefit of the doubt and assume that the amount of $105.14 identified in the September 2009 Medical Expense Report was intended as a monthly expense, which amounts to $1,261.68 annually. As this amount exceeds the amount of $1,118.00 for medication set forth in the January 2009 Medical Expense Report, the Board will give the appellant the benefit of the doubt and deduct the larger amount in calculating her countable income. As for transportation expenses, assuming that the amount of $60.00 identified in the January 2009 Medical Expense Report was incurred monthly, the appellant's transportation to medical appointments would total $720.00 annually. As the amount of $1,440.00 identified in the September 2009 Medical Expense Report exceeds that, the Board will give the appellant the benefit of the doubt and deduct the larger amount in calculating her countable income. As to the $20.00 expense for co-pays identified in the January 2009 Medical Expense Report, the Board will give the appellant the benefit of the doubt and assume it was intended as a monthly expense. Accordingly, the Board will deduct $240.00 in medical expenses for co-pays for the period on appeal. Based on the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether the following amounts should be deducted as medical expenses for the period on appeal: $1,261.68 for medication; $1,440.00 for transportation to medical appointments; and $240.00 for co-pays, for a total of $2,941.68, which exceeds five percent of the MAPR for the relevant period. During the periods in question, the available evidence indicates that the appellant was not married, and had no dependent children. See VA Adjudication Procedures Manual M21-1, Part I, Appendix B; https://benefits.va.gov/PENSION/current_rates_veteran_pen.asp (listing the MAPR for 2009, without dependents, as $11,830). In summary, the Board finds that the competent and probative evidence demonstrates annual income in the amount of $7,812.00 and annual medical expenses in the amount of $2,941.68, for a countable annual income of $4,870.32 during the period on appeal. ORDER For the period of January 1, 2009, to December 31, 2009, the appellant's countable income for the purpose of calculating death pension benefits was $4,870.32. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs