Citation Nr: 1829263	
Decision Date: 05/24/18    Archive Date: 06/12/18

DOCKET NO.  14-39 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to nonservice-connected death pension benefits.


ATTORNEY FOR THE BOARD

L. Leifert, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1963 to October 1966.  He died in February 2014, and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 letter by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Michigan, that denied the benefit sought on appeal.  The appeal is currently with the Pension Management Center in Philadelphia, Pennsylvania. 


FINDING OF FACT

The appellant's annual income exceeds the maximum annual countable income limit for receipt of payment of nonservice-connected death pension benefits.


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected death pension benefits have not been met.  38 U.S.C. § 1541 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.262, 3.271, 3.272, 3.273 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The appellant has not raised any issues with regard to 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. Analysis

The surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income.  38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273.  Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded.  38 C.F.R. § 3.271.  For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate 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).  Unreimbursed medical expenses will be excluded when certain requirements are met.  38 C.F.R. § 3.271(g).

Basic entitlement to such pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23.  See 38 U.S.C. § 1521(a), (b) (2017); 38 C.F.R. § 3.3 (a)(3).  The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations.  See 38 C.F.R. § 3.21 (2017).  The MAPR is adjusted from year to year.  If the appellant's income is less that the MAPR, VA will pay benefits to bring her income up to that level.

The appellant's income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate ... in effect during the 12-month annualization period in which the medical expenses were paid."  See 38 C.F.R. § 3.272 (g)(1)(iii); 38 U.S.C. § 1503(a)(8).  

Effective December 1, 2013, the MAPR for a surviving spouse without dependents was $8,485.00, with medical expenses exceeding $424 as permitted deductibles.  Effective December 1, 2014, the MAPR for a surviving spouse without dependents was $8,630, with medical expenses exceeding $431 as permitted deductibles.  Effective December 1, 2016, the MAPR was $8,656, and medical expenses exceeding $432 were deductible.  Effective December 1, 2017, the MAPR was $8,830, and medical expenses exceeding $442 were deductible.  See Survivor's Pension Rate Tables, Part I, Appendix B, M21-1. 

In June 2014, the appellant submitted statements indicating that she was receiving monthly income from the Social Security Administration (SSA) in the amount of $1,011.00, and that she incurred $1,115.00 in burial expenses for the veteran and monthly medical expenses of $60.00.  In April 2015, the appellant submitted statements indicating that she was receiving monthly income from SSA in the amount of $1,028.00, and that she incurred monthly medical expenses of $60.00.  In May 2017, the appellant submitted statements indicating that she was receiving monthly income from SSA in the amount of $1,032.00, and that she incurred monthly medical expenses of $51.05 for Florida Well Care Drug Plan and $135.71 for AARP Medicare Supplement. 

Thus, calculation of total income reflects that the appellant's total income for in 2014 was $11,017.00 when deducting the Veteran's burial expenses, her total income in 2015 was $12,336, and her total income in 2017 was $12,384.00.  

In 2014 and 2015, the appellant's total amount of unreimbursed medical expenses applicable for reducing the appellant's income is, at most, $296.00 (calculated from the information the appellant provided for in June 2014 and April 2015 minus the permitted deductibles for medical expenses).  In 2017, the appellant's total amount of unreimbursed medical expenses applicable for reducing the appellant's income is, at most, $1799.12 (calculated from the information the appellant provided in April 2015 minus the permitted deductibles for medical expenses).  

When the unreimbursed medical expenses are subtracted from the appellant's total income for 2014, the resulting amount is $10,721.  When the unreimbursed medical expenses are subtracted from the appellant's total income for 2015, the resulting amount is $12,040.  Finally, when the unreimbursed medical expenses are subtracted from the appellant's total income for 2017, the resulting amount is $10,584.88.  These amounts exceed the MAPR for a surviving spouse with no dependents for each year in question.

While the Board empathizes with the appellant's loss of her husband and her financial difficulties, it is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017).  Given the available record regarding her countable income and exclusions, the Board concludes that the appellant is not entitled to payment of nonservice-connected death pension benefits because her income exceeds the statutory limits for entitlement to death pension benefits.  Therefore, her claim of entitlement to nonservice-connected death pension benefits must be denied.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to nonservice-connected death pension benefits is denied.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs