Citation Nr: 1822293 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 16-34 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to non-service connected death pension benefits. ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to February 1955. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 decision by a Department of Veterans Affairs (VA) Regional Office. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). In her April 2015 claim and October 2015 notice of disagreement, the appellant indicated she is only seeking entitlement to death pension benefits. FINDING OF FACT The appellant's countable income for the period pertinent to the appellant's claim exceeded the maximum annual income for pension benefits. CONCLUSION OF LAW The criteria for non-service connected death pension benefits are not met. 38 U.S.C. §§ 1521, 1541, 1543 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The appellant has not 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 duty to assist argument). 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; 38 C.F.R. § 3.23. 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 Appendix B of VA Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. In determining 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. Social Security Administration (SSA) income is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Medical expenses in excess of five percent of the MAPR, which have been paid, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(iii). The Veteran died in 2005. In April 2015, the appellant filed a claim for entitlement to death pension benefits. For calendar year 2015, the MAPR for death pension for a surviving spouse with no dependents was $8,630. The five percent deductible threshold for medical expenses was $431. For the annualization period beginning in April 2015, the appellant had a total income of $21, 034. The appellant received $1,452.90 per month from SSA retirement benefits, multiplied by 12 months for a total of $17, 434.80, which is rounded down to $17,434. See June 2016 SSA inquiry; September 2015 SSA inquiry. The appellant also reported receiving $300 per month from an IRA account, multiplied by 12 months for a total of $3,600. See January 2016 updated claim form; April 2015 claim. Although the appellant reported having interest bearing accounts, an IRA plan, and stocks, bonds or mutual funds, the appellant has reported earning less than one percent interest on these accounts. See September 2016 appellant statement. In July 2016, the appellant submitted a copy of her 2014 federal tax return as evidence regarding her income. However, the Board finds this return does not provide information regarding the appellant's annual income for the 12-month annualization period, which began when she filed her claim in April 2015. In September 2016, the appellant provided medical expense reports for the annualization period. The appellant's reported unreimbursed medical expenses totaled $5, 901.66, which is rounded down to $5,901. Again, paid medical expenses in excess of five percent of the MAPR may be excluded from an individual's income. Accordingly, the $431 five percent deductible threshold for medical expenses is subtracted from the reported medical expenses, for a total of $5,470 in deductible medical expenses. The appellant's total countable income of $21,034, reduced by the deductible medical expenses of $5,470, provides a total income of $15,564. Accordingly, the Board finds the appellant's income exceeded the $8,630 maximum countable income for death pension benefits for the annualization period. The appellant contends she has to withdraw money from her savings and IRA accounts in order to supplement her SSA income and meet her living expenses, and therefore her saved funds are rapidly depleting. See September 2016 appellant statement; September 2016 copies of IRA withdrawal slips; July 2016 appellant statement with VA Form 9; January 2016 updated claim form. The appellant also contends that income should not be a requirement for pension benefits, and should be entitled because she is the surviving spouse of a combat veteran. See November 2016 appellant statement. However, as discussed above, non-service connected death pension is an income-based benefit for low income qualifying survivors. Although the appellant is a qualifying claimant in that she is the surviving spouse of a veteran who had qualifying wartime service, and the Board is sympathetic regarding her decreasing savings to meet her living expenses, under the law an otherwise qualifying applicant may only be paid up to the MAPR, reduced by the amount of her countable income. Because the appellant's annual countable income exceeded the MAPR, the entire amount is offset, and the appellant is not entitled to any death pension benefits. As the appellant's countable income exceeds the maximum annual income allowed for the payment of death pension benefits, the appellant is precluded from receiving death pension benefits. See 38 C.F.R. § 3.23(a)(5). Should her financial status change, she may re-file for such benefits. At present, however, her claim must be denied. The preponderance of the evidence is against the claim, and therefore the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to non-service connected death pension benefits is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs