Citation Nr: 1817773	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  14-40 404	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to survivors' pension benefits for helpless child.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Bridgid D. Houbeck, Counsel


INTRODUCTION

The Veteran served on active duty from December 1943 to March 1944.  The Veteran died in February 1998.  The appellant is his surviving child.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which established the appellant's permanent incapacity for self-support, but denied death pension due to incomplete application.

During the pendency of this appeal, the appellant has transitioned from male to female and has submitted an updated birth certificate to document this and her recent name change.  In acknowledgement of this, the Board will refer to the appellant below using appropriate female pronouns.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2016.  A transcript of the hearing is associated with the claims file.


FINDINGS OF FACT

1.  The appellant is the Veteran's biological child and is incapable of self-support due to extensive burn injuries sustained as a minor child.

2.  The appellant's countable income, after the deduction of unreimbursed medical expenses, exceeds the maximum annual pension rate for a surviving child.


CONCLUSION OF LAW

The criteria for entitlement to improved death pension benefits for a surviving child have not been met.  38 U.S.C. §§ 1503, 1542 (2012); 38 C.F.R. §§ 3.3, 3.24, 3.57, 3.271, 3.272 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017).  Here the appellant was provided notice in April 2006 prior to her previous claim, but no notice was provided in the course of the current claim.

Regardless of any such notice, there is no question that she is entitled to recognition as the Veteran's surviving helpless child.  Additionally, with respect to the Board's determination that she is not entitled to death pension benefits, as her income exceeds the applicable statutory levels for the annualized period in which the income was received, the facts are undisputed and the appellant's arguments are limited to her interpretation of governing legal authority.  Specifically, her argument centers on whether her additional expenses can be excluded from her income.

The United States Court of Appeals for Veterans Claims (Court) has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  Additionally, VA's Office of General Counsel has held that VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated due to the lack of a legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004.  Here, the essential and dispositive facts are not in dispute.  Accordingly, for the reasons stated in below, the undisputed facts preclude the appellant's eligibility for death pension benefits.


II.  Death Pension

The appellant is seeking death pension benefits based on her status as a helpless child.

Improved death pension is a benefit payable to a veteran's surviving child because of the veteran's nonservice-connected death.  Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse or child meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.24.  See 38 U.S.C. §§ 101 (8), 1521(j), 1541(a) (2012); 38 C.F.R. §§ 3.3 (b)(4); 3.24 (2017).

Generally, an individual is a child of a veteran if he or she is the biological or adopted child or stepchild of the Veteran, and is an unmarried person who either: is (1) under the age of 18; (2) "shown to [have been] permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years;" or (3) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years), is pursuing a course of instruction at an approved educational institution.  38 U.S.C. § 101 (4)(A)(ii); 38 C.F.R. §§ 3.57, 3.356; Dobson v. Brown, 4 Vet. App. 443, 445 (1993).  The issue is one of fact premised on competent evidence in the individual case.  Bledsoe v. Derwinski, 1 Vet. App. 32, 33 (1990).

Here, the record shows that the Veteran served for longer than 90 days during a period of war, this meets the service requirement for improved death pension.  Additionally, the record establishes that the appellant is the Veteran's child under VA regulations.  Her birth certificate shows that she is the biological child of the Veteran.  Her medical record establishes that she sustained significant burn injuries as a minor child.  It is clear that the residuals of these injuries have rendered her incapable of self-support, as noted in the August 2006 and July 2014 rating decision.  Therefore, the first two requirements for improved death pension are satisfied.

The remaining question is whether the appellant's income exceeds the MAPR.  The MAPR is published in Appendix BVA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations.  38 C.F.R. §§ 3.21, 3.24.  The MAPR is revised every December 1st and is applicable for the following 12-month period.

The MAPR for a surviving child is significantly less than that for a surviving spouse.  The MAPR benefits for a veteran's surviving child without a personal custodian, like the appellant in this case, are $2020, effective December 1, 2009; $2093, effective December 1, 2011; $2129, effective December 1, 2012; $2161, effective December 1, 2013; $2198, effective December 1, 2014; and $2205, effective December 1, 2016.  38 C.F.R. § 3.24 (b); see Survivors Pension Rate Table, available at https://www.benefits.va.gov/PENSION/current_rates_survivor_pen.asp (last visited March 14, 2018).  Pension benefits are paid at the MAPR reduced by the amount of annual income received by the appellant.  38 U.S.C. § 1521 (b); 38 C.F.R. §§ 3.3 (b) (4) (iii), 3.24.  This means that if the appellant's countable income falls below the MAPR for any given year, the pension benefit would be equal to the difference between that year's income and the applicable MAPR.

In determining annual income, all payments of any kind or from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272.  Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated.  38 C.F.R. § 3.271 (a) (1).  Fractions of dollars are ignored when computing income.  38 C.F.R. §§ 3.271.  General living expenses for utilities, life insurance premiums, housing, and transportation (other than for medical care) are not excludable.

Social Security Administration (SSA) benefits paid under the Old Age and Survivors Insurance (OASI) and Social Security Disability Insurance (SSDI) programs are included as countable income.  38 C.F.R. § 3.262 (f).  However, Supplemental Security Income (SSI) is not considered countable income for current-law pension purposes.  See M21-1 V. iii.

For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by an appellant for unreimbursed medical expenses, to the extent that such amounts exceed five (5) percent of the applicable MAPR.  38 U.S.C. § 1503 (a)(8); 38 C.F.R. § 3.272 (g)(3).  Thus, effective December 1, 2012, only those unreimbursed medical expenses in excess of $106, which is 5 percent of the maximum annual pension rate of $2129, may be used to reduce total income.  Further, effective December 1, 2013, only those unreimbursed medical expenses in excess of $108; effective December 1, 2014, unreimbursed medical expenses in excess of $109, may be used to reduce total income; and effective December 1, 2016, unreimbursed medical expenses exceeding $110 may reduce total income.

The record indicates that the appellant has been in receipt of SSDI benefits for the entire appeal period.  A SSA inquiry shows monthly payments of $770 through December 2011, which equals $9240 per year.  As of December 2011, that payment was increased to $798 per month, which equals $9576 per year.  As of December 2012, that payment was increased to $811 per month, which equals $9732 per year.  As of December 2013, that payment was increased to $824 per month, which equals $9888 per year.  These benefits are countable income and, alone, exceed the MAPR for a surviving child without a personal custodian by a large margin unless offset by a substantial amount of income exclusions, such as unreimbursed medical expenses.

In her October 2013 application, the appellant stated that she received a monthly income from the SSA of $811, which is $9732 per year.  She testified during the hearing that the SSA benefits are through the Veteran's survivor benefits.  As this appears to be SSDI, it is countable income for improved death pension purposes.  The appellant also reported paying $105 per month, $1260 per year, to Medicare.  At that time, she referred to an October 2010 Medical Expense Report, noting that these expenses had not changed since then except that the costs had increased.  Absent a specific dollar amount for her claimed unreimbursed medical expenses, her income exclusions could not be calculated.

For reference, the October 2010 Medical Expense Report lists annual expenses of $1157 for Medicare Part B, $1920 for doctors' appointments, $456 in travel expenses for these appointments, $120 for Tylenol, $240 for cough medicine, $360 for lotions, $432 for medical adhesive for ears, $1200 for unlisted other medical expenses, and $120 for glue for eyebrows.  These unreimbursed medical expenses for 2010 totaled $6005, which exceeded five percent of the MAPR by $5603.  Given her SSA income of $9240, exclusion of these unreimbursed medical expenses still leaves an income of $3637, which exceeds the MAPR of $2020.  The appellant also listed $775 for upkeep of specially equipped van, $320 for lawn mowing and snow removal, $720 for a specially designed cell phone, $120 for make-up for facial scars, $900 for cooling in the warm months, and $1250 for heating in the cool months.  These types of expenses are not listed as income exclusions under 38 C.F.R. § 3.272 and so the Board could not additionally offset the appellant's income based on these costs.

In a November 2014 Medical Expense Report for 2013 submitted with her VA Form 9, the appellant reported medical-related travel of four visits to her doctor at 110 miles roundtrip each visit with total travel-related expenses of $120.  She also reported annual expenses of $51 in ambulance fees, $17.70 in Omnicare fees, $169.03 for lotions from two stores, $144 for mouthwash, and $60 in specialty soap.  These unreimbursed medical expenses for 2013 totaled $1821.73.  This exceeded five percent of the MAPR by $1715 and so the appellant's income is reduced by that amount, leaving $8016.  The appellant also reported $270 per year in camouflage makeup and $240 per year for lawn mowing.  These types of expenses are not listed as income exclusions under 38 C.F.R. § 3.272 and so the Board cannot additionally offset the appellant's income based on these costs.  As $8016 exceeds the MAPR of $2129 for calendar year 2013, the appellant exceeded the income restrictions for a surviving child.

A June 2014 examination noted that the appellant was able to make her own meals unless her hands/grafts were too sore, cracked, or bleeding.  Then she would go out to eat.  This examination noted that the appellant needed assistance bathing and tending to other hygiene needs, but did not specify what assistance was needed.

At her June 2016 hearing, the appellant reported a monthly income from the Social Security Administration of $878, which is $10,536 per year.  The MAPR for 2015 was $2198.  Thus, in order to qualify for improved death pension, the appellant must show exclusions to that income totaling more than $8341.

The appellant also reported annual medical expenses between $900 and $1000, which included lotions, antibiotics, and bandages.  These unreimbursed medical expenses exceeded five percent of the MAPR by $891.  Even assuming continued Medicare payments of approximately $1260 per year, the exclusion for unreimbursed medical expenses does not reach $8341 or more.

The appellant also testified that she incurred high utility bills due to risk of heatstroke in the summer and hypothermia in the winter, both associated with her burns.  She also reported high water bills associated with cold showers to lower her body temperature.  In the winter her heating bill was between $400 and $500 per month.  The appellant also stated that the burn injuries to her hands prevented her from washing her own hair or performing lawn maintenance, so she had to pay others to perform that work.  Again, the law is clear on what can be excluded from income, which is set forth in 38 C.F.R. § 3.272.  Costs incurred due to utilities, lawn maintenance, and personal grooming are not listed as income exclusions and so the Board cannot offset the appellant's income based on these costs.  

As explained above, the record shows that the appellant's countable income has continuously exceeded the MAPR for a surviving child without a personal custodian.  As Congress prohibits the payment of VA death pension to those whose countable income exceeds statutory limits, and the appellant's income exceeds those limits, she is not legally entitled to VA death pension benefits.  Therefore her claim of entitlement to survivors' pension benefits must be denied.


ORDER

Entitlement to survivors' pension benefits is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs