Citation Nr: 1815408	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  13-32 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Whether the appellant's countable income is excessive for VA purposes with respect to entitlement to improved death pension benefits from January 1, 2010 to September 20, 2013.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel


INTRODUCTION

The Veteran honorably served on active duty from July 1962 to July 1966.  He died in March 2005.  The appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 administrative decision of the U.S. Department of Veterans Affairs (VA) Pension Management Center in Saint Paul, Minnesota, which stopped the appellant's pension benefit effective January 1, 2010.  The basis for this action was evidence showing that the appellant's income exceeded the allowable maximum for VA purposes.  10/03/2011, Notification Letter (e.g. VA 20-8993, VA 21-0290, PCGL).

The appellant timely appealed the decision with a notice of disagreement received by VA in November 2011.  After a VA Regional Office issued a statement of the case on September 20, 2013, the appeal was perfected with the timely filing of a substantive appeal in October 2013.

The appellant testified before the undersigned Veterans Law Judge at a February 2017 videoconference hearing.  A hearing transcript has been associated with the claims file and reviewed.  The undersigned kept the record open until March 7, 2017 to allow the appellant to submit additional evidence.



FINDING OF FACT

From January 1, 2010 to September 20, 2013, the Appellant's countable income exceeded the maximum limits allowed for nonservice-connected death pension benefits.


CONCLUSION OF LAW

The criteria to establish entitlement to nonservice-connected death pension benefits have not been met.  38 U.S.C. §§ 1503, 1521, 1541, 5107 (2012); 38 C.F.R. §§ 3.3(b), 3.21, 3.23, 3.271-3.275 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant contends that she is entitled to have her pension benefit restored from January 1, 2010 to September 2013.  After reviewing the pertinent evidence of record, the Board denies the claim.  The reasons and bases for this decision will be explained below.

The Board has considered the issue on appeal and decided on the matter based on the pertinent evidence.  Neither the appellant nor the representative has raised any issues with respect to VA's duties, and no other issues have been reasonably raised by the record with respect to VA's duties.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  Thus, the Board will proceed to the merits of the appeal.

Basic entitlement to nonservice-connected death pension for a surviving spouse exists if (1) the Veteran had qualifying service, or was receiving or entitled to receive compensation or retired pay for a service-connected disability based on wartime service at time of death; and (2) the claimant meets the net worth requirements of § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23.  See 38 U.S.C. §§ 1521, 1541, 1543; 38 C.F.R. § 3.3(b)(4).

The appellant has been determined to be the Veteran's surviving spouse and she has not remarried.  The Veteran is shown to have had qualifying service of more than 90 days during a period of war.  See 38 C.F.R. § 3.3(a)(3), (b)(4).

As discussed below, however, the Appellant's countable income was in excess of the applicable MAPR throughout the period on appeal.  Nonservice-connected death pension is not payable to a claimant whose annual income exceeds the limitations as set forth in 38 C.F.R. § 3.23, or if it is reasonable that some part of the claimant's estate be consumed for his or her maintenance.  See 38 U.S.C. §§ 1521, 1541, 1543; 38 C.F.R. § 3.3(b)(4). 

Countable income and excludable expenses are based on twelve-month annualization periods for death pension.  In determining income for the purposes of nonservice-connected death pension, payments of any kind from any source shall be counted as income during the annualization period in which they are received, except for certain listed exclusions.  38 U.S.C. § 1503; 38 C.F.R. §§ 3.271, 3.272. 

The income limits (MAPRs) are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312.  The MAPR varies depending on the number of dependents a claimant has.  In this case, the Appellant in this case does not have any dependents.  For the period on appeal, the applicable MAPRs for a surviving spouse with no dependents are $7,933 effective December 1, 2009; $8,219 effective December 1, 2011; and $8,359 effective December 1, 2012 and prior to December 1, 2013.  Survivors Pension Rate Tables - Effective 12/1/12, U.S. DEP'T VETERANS AFF., https://www.benefits.va.gov/PENSION/rates_survivor_pen12.asp; Survivors Pension Rate Tables - Effective 12/1/11, U.S. DEP'T VETERANS AFF., https://www.benefits.va.gov/PENSION/rates_survivor_pen11.asp; Survivors Pension Rate Tables - Effective 12/1/09, U.S. DEP'T VETERANS AFF., https://www.benefits.va.gov/PENSION/rates_survivor_pen09.asp.

For determining the pension award, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income and dividing the remainder by twelve.  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 twelve-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c).

In essence, VA subtracts the total amount of countable income in one year, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273(b)(2).

In her 2010 eligibility verification report, the appellant reported monthly income figures of $444.80 in retirement benefits from the Veteran's retirement and $923.00 in guardianship benefits (totaling $1,367.80).; for 2011, $453.67 and $889.00, respectively (totaling $1,342.67); for 2012, $462.76 and $550.00, respectively (totaling $1,012.76); and for 2013, $462.76 and $929.00 respectively (totaling $1,391.76).  03/03/2017, Eligibility Verification Report (2013, 2012, 2011, 2010).  The appellant is not employed and has not remarried.  E.g., 08/18/2011, VA 21-4138 - Statement In Support of Claim.

Based on the above figures, the total countable income for the years 2010, 2011, 2012, and 2013 are $16,413, 16,112, $12,152, and $16,701, respectively.  Unfortunately, these exceed the applicable MAPRs listed above.  Therefore, entitlement to nonservice-connected death pension is not shown for any portion of the rating period on appeal.  See 38 U.S.C. §§ 1521, 1541; 38 C.F.R. §§ 3.271, 3.272.

The Veteran has contended that the two children in her custody should be treated as dependents.  See, e.g., 05/10/2017, Hearing Testimony; 10/18/2013	
Form 9.  Unfortunately, the children cannot be accepted as dependents because the evidence of record does not show they were adopted within two years of the Veteran's death.  See 38 C.F.R. § 3.57(c). The employment verification report shows the earliest date of custody was in 2010.  The evidence also fails to demonstrate that they were living in the Veteran and appellant's household around the time of the Veteran's death.  E.g., 03/21/2005, VA 21-534 - Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child.


ORDER

As the appellant's countable income exceeds the maximum allowable limit, entitlement to improved death pension benefits is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs