Citation Nr: 18154907 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 14-32 428 DATE: December 3, 2018 ORDER Non-service-connected death pension benefits in excess of those previously granted is denied. FINDING OF FACT For the entirety of the appellate period, the appellant’s income has exceeded the maximum annual rate established by law for payment of nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for VA nonservice-connected death pension benefits, in excess of those previously granted, are not met. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3(b), 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1943 to September 1943. He died in February 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 decision from the Department of Veterans Affairs (VA) Pension Management Center/agency of original jurisdiction (AOJ) in Milwaukee, Wisconsin. It is noted that the AOJ, in a July 2014 rating decision, found that the appellant was eligible for consideration of the need of regular aid and attendance. In a March 2015 administrative decision, the AOJ granted the appellant death pension in the amount of a monthly rate of $46.00 per month from September 1, 2012; $40.00 per month from January 1, 2013; and $0.00 per month from September 1, 2014 based upon her calculated income amounts. The appellant has continued her appeal for increased pension amounts based upon her countable income. The appellant’s claim was previously before the Board in April 2018, at which time it was remanded for additional development. That development having been completed, this claim is once again before the Board. Nonservice-connected death pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if (i) the Veteran served for 90 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 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 specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 C.F.R. § 3.3 (b)(4). The Veteran in this case served on active duty from July 1943 to September 1943 and, therefore, served during a period of war (i.e., World War II). See 38 U.S.C. § 101(8), (11). As above, the Veteran died in February 2011 and the appellant is the Veteran’s surviving spouse. See 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). However, in order to be entitled to nonservice-connected death pension benefits, the appellant must also meet the specific income and net worth requirements outlined below. See 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). A surviving spouse who meets these requirements will be paid the maximum rate of death pension, reduced by the amount of 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 rate of improved pension for a surviving spouse is specified by statute and is increased periodically under 38 U.S.C. § 5312. See 38 C.F.R. § 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 annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Civilian compensation for injury or death, i.e., disability benefits, paid by the Social Security Administration (SSA) is specifically included as countable income. 38 C.F.R. § 3.271(g). Additionally, wage/salary income, retirement pension benefits from private companies, and retirement income from the SSA are not specifically excluded under 38 C.F.R. § 3.272; such income is therefore included as countable income. Medical expenses in excess of five percent of the applicable maximum annual pension rate (MAPR), which have been paid, may be excluded from an individual’s income for the same 12-month period, to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the surviving spouse received no reimbursement, such as through an insurance company. However, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. Additionally, under 38 C.F.R. § 3.272, amounts paid by a spouse before the veteran’s death for expenses of the veteran’s last illness will be deducted from the income of the surviving spouse. 38 C.F.R. § 3.272(h)(1)(i). Likewise, amounts paid by a surviving spouse or child of the veteran for the veteran’s just debts, expenses of last illness, and burial (to the extent such burial expenses are not reimbursed under chapter 23 of title 38 U.S.C.) will be deducted from the income of the surviving spouse or child. 38 C.F.R. § 3.272 (h)(1)(ii). The term “just debts” does not include any debt that is secured by real or personal property. Id. Similarly, expenses of last illnesses, burials, and just debts that are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant’s advantage. 38 C.F.R. § 3.272(h). Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. Id. Under 38 C.F.R. § 3.272, the following shall also be excluded from countable income for the purpose of determining entitlement to nonservice-connected death pension benefits: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; and joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner). The rates of death pension benefits (MAPR) are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 (M21-1) and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. The MAPR is generally revised every December 1st, based upon Federal data as to the increase in the cost of living, and is applicable for the following 12-month period. It is further noted that an increased amount for the MAPR is provided for a surviving spouse with no dependents who is in regular need of aid and attendance. As per a July 2014 rating decision based upon the results of a February 2014 VA examination, the appellant was found to qualify for the aid and attendance MAPR with no dependents. Therefore, in the analysis that follows, consideration of such MAPR shall be afforded to the appellant. The claim period begins in August 2012. As applicable to the current claim, the applicable MAPR for death pension for a surviving spouse with no dependents based upon the need for regular aid and attendance were as follows: $13,138.00, effective December 1, 2011 (requiring that medical expenses exceed $410.00 to be deducted); $13,362.00, effective December 1, 2012 (requiring that medical expenses exceed $417.00 to be deducted); $13,563.00, effective December 1, 2013 (requiring that medical expenses exceed $424.00 to be deducted); $13,794.00, effective December 1, 2014 (requiring that medical expenses exceed $431.00 to be deducted); $13,794.00, effective December 1, 2015 (requiring that medical expenses exceed $431.00 to be deducted); $13,836.00, effective December 1, 2016 (requiring that medical expenses exceed $432.00 to be deducted); $14,113.00, effective December 1, 2017 (requiring that medical expenses exceed $442.00 to be deducted). See 38 C.F.R. § 3.23 (a)(5); M21-1, Part I, Appendix B. Turning to the evidence of record, for the year 2012, which consists of the time period from August 2012 to December 2012, the appellant reported income in the amount of $16,798.80, solely from SSA income. See Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child (VA Form 21-534) (received on August 2012) (for the period from August 1, 2012 to December 31, 2012). Additionally, an August 2012 benefits letter from SSA confirmed that the appellant’s monthly benefit amount was $1,399.90 minus $99.90 per month for Medicare medical insurance. The RO confirmed with SSA that the actual total income for 2012 was $16,822.80, as 11 months were at the $1,399.90 rate and 1 month, beginning December 1, 2012 was at the new $1,423.90 rate. Additionally, it was confirmed that the appellant’s actual Medicare premium rate was $99.90 per month. The appellant also submitted additional documentation of miles traveled every 3 months of 100 miles. At the VA proscribed rate of .41 cents per mile, this would come to an annual total of $82.00 for this expense (100 x .41 cents and then 41 x 2 times per year (from August 2013 to December 2013). The appellant submitted a transaction report from Medigold, a private medical insurance company, showing premiums paid in the amount of $97.00 per month from August 2012 to December 2012. Additionally, the appellant submitted an out of pocket expense report from her insurer showing that she paid a total of $412.47 in coinsurance and copays. These reported expenses for 2012 total $1,306.50 ($499.50 (Medicare) + $82.00 (Mileage) + $485.00 (Medigold) + $240.00 (coinsurance and copays). When the $410.00 MAPR exclusion is deducted, this amount is $896.50. Thus, based on the figures reported by the appellant, her total income of $16,798.90 less her reported expenses of $896.50, equals $15,902.40. This amount is well in excess of the applicable MAPR of $13,138.00 for 2011 and $13,362.00 beginning December 1, 2012. Accordingly, even assuming that the appellant’s submissions do not reflect unallowable or duplicative exclusions, and without making any determination as to the propriety of her asserted exclusions, the Board finds that she would actually be ineligible for receipt of death pension benefits during 2012, despite the findings by the AOJ. See 38 C.F.R. §§ 3.3 (b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B. However, this fact notwithstanding, the Board shall not disturb the findings of the March 2015 administrative decision, leaving such grant of pension for that period intact. For the year 2013, the evidence shows that the appellant was in receipt of benefits in the amount of $1,423.90 per month from January 2013 to November 2013 and $1,444.90 for the month of December 2013. No other income was shown. Therefore, the Veteran’s total income for 2013 was $17,107.80. The RO also confirmed with SSA that the Veteran’s Medicare premium had increased to $104.90 per month beginning in 2013. The appellant also submitted additional documentation of miles traveled every 3 months of 100 miles. At the VA proscribed rate of.41 cents per mile, this would come to an annual total of $164.00 for this expense (100 x.41 cents and then 41 x 4 times per year (from January 2013 to December 2013). The appellant submitted a transaction report from Medigold, a private medical insurance company, showing premiums paid in the amount of $99.00 per month from January 2013 to December 2013. Additionally, the appellant submitted an out of pocket expense report from her insurer showing that she paid a total of $175.70 in coinsurance and copays. These reported expenses for 2013 total $2,786.50 ($1,258.80 (Medicare) + $164.00 (Mileage) + $1,188.00 (Medigold) + $175.70 (coinsurance and copays). When the $417.00 MAPR exclusion is deducted, this amount is $2,369.50. Thus, based on the evidence of record and the expense figures reported by the appellant, her social security income of $17,107.80 less her total reported expenses of $2,369.50 equals $14,738.30. This amount is well in excess of the applicable MAPR of $13,362.00 from January 2013 to November 2013 and $13,563.00 from December 2013. Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2013. See 38 C.F.R. §§ 3.3 (b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B. However, this fact notwithstanding, the Board shall not disturb the findings of the March 2015 administrative decision, leaving such grant of pension for that period intact. For the year 2014, the evidence shows that the appellant was in receipt of benefits in the amount of $1,444.90 per month from January 2014 to November 2014 and $1,469.90 for the month of December 2014. No other income was shown. Therefore, the Veteran’s total income for 2014 was $17,363.80. The RO also confirmed with SSA that the Veteran’s Medicare premium had remained $104.90 per month. The appellant also submitted additional documentation of miles traveled every 3 months of 20 miles and an additional 20 miles every 6 months. At the VA proscribed rate of.41 cents per mile, this would come to an annual total of $164.00 for this expense (20 x.41 cents and then $8.20 x 4 times per year (from January 2014 to December 2014) equaling $32.80 plus 20 x .41 cents and then $8.20 x 2 times per year (from January 2014 to December 2014) equaling $16.20 for a total of $49.00. The appellant submitted a transaction report from Medigold, a private medical insurance company, showing premiums paid in the amount of $99.00 per month from January 2014 to December 2014. Additionally, the appellant submitted an out of pocket expense report from her insurer showing that she paid a total of $412.47 in coinsurance and copays. She also submitted an expense report showing her pharmacy copays made in 2014, which amounted to $148.00. These reported expenses for 2013 total $3,056.27 ($1,258.80 (Medicare) + $49.00 (Mileage) + $1,188.00 (Medigold) + $412.47 (coinsurance and copays) + $148.00 (pharmacy copay). When the $424.00 MAPR exclusion is deducted, this amount is $2,635.27. Thus, based on the evidence of record and the expense figures reported by the appellant, her social security income of $17,363.80 less her total reported expenses of $2,635.27 equals $14,731.53. This amount is well in excess of the applicable MAPR of $13,563.00 from January 2014 to November 2014 and $13,794.00 from December 2014. Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2014. See 38 C.F.R. §§ 3.3 (b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B. For the year 2015, the evidence shows that the appellant was in receipt of benefits in the amount of $1,469.90 per month from January 2015 to November 2015 and $1,469.90 for the month of December 2015. No other income was shown. Therefore, the Veteran’s total income for 2015 was $17,638.80. The RO also confirmed with SSA that the Veteran’s Medicare premium had remained $104.90 per month. The appellant did not submit any additional documentation of mileage or any other medical expenses for 2015. Thus, the reported expenses for 2015 total $1,258.80 (Medicare). When the $431.00 MAPR exclusion is deducted, this amount is $827.80. Thus, based on the evidence of record and the expense figures reported by the appellant, her social security income of $17,638.80 less her total reported expenses of $827.80 equals $16,811.00. This amount is well in excess of the applicable MAPR of $13,794.00 from January 2015 to November 2015 and $13,794.00 from December 2015. Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2015. See 38 C.F.R. §§ 3.3 (b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B. For the year 2016, the evidence shows that the appellant was in receipt of benefits in the amount of $1,469.90 per month from January 2016 to November 2016 and $1,474.00 for the month of December 2016. No other income was shown. Therefore, the Veteran’s total income for 2016 was $17,642.90. The RO also confirmed with SSA that the Veteran’s Medicare premium had remained $104.90 per month. The appellant did not submit any additional documentation of mileage or any other medical expenses for 2016. Thus, the reported expenses for 2016 total $1,258.80 (Medicare). When the $431.00 MAPR exclusion is deducted, this amount is $827.80. Thus, based on the evidence of record and the expense figures reported by the appellant, her social security income of $17,642.90 less her total reported expenses of $827.80 equals $16,815.10. This amount is well in excess of the applicable MAPR of $13,794.00 from January 2016 to November 2016 and $13,836.00 from December 2016. Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2016. See 38 C.F.R. §§ 3.3 (b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B. For the year 2017, the evidence shows that the appellant was in receipt of benefits in the amount of $1,474.00 per month from January 2017 to November 2017 and $1,503.00 for the month of December 2017. No other income was shown. Therefore, the Veteran’s total income for 2016 was $17,717.00. The RO also confirmed with SSA that the Veteran’s Medicare premium had increased to $109.00 per month. The appellant did not submit any additional documentation of mileage or any other medical expenses for 2017. Thus, the reported expenses for 2017 total $1,308.00 (Medicare). When the $432.00 MAPR exclusion is deducted, this amount is $876.00. Thus, based on the evidence of record and the expense figures reported by the appellant, her social security income of $17,717.00 less her total reported expenses of $876.00 equals $16,841.00. This amount is well in excess of the applicable MAPR of $13,836.00 from January 2017 to November 2017 and $14,113.00 from December 2017. Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2017. See 38 C.F.R. §§ 3.3 (b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B. For the year 2018, the evidence shows that the appellant was in receipt of benefits in the amount of $1,503.00 per month from January 2018 to November 2018 and projected $1,503.00 for the month of December 2018. No other income was shown. Therefore, the Veteran’s total income for 2016 was $18,036.00. The RO also confirmed with SSA that the Veteran’s Medicare premium had increased to $134.00 per month. The appellant did not submit any additional documentation of mileage or any other medical expenses for 2018. Thus, the reported expenses for 2018 total $1,608.00 (Medicare). When the $442.00 MAPR exclusion is deducted, this amount is $1,166.00. Thus, based on the evidence of record and the expense figures reported by the appellant, her social security income of $18,036.00 less her total reported expenses of $1,166.00 equals $16,870.00. This amount is well in excess of the applicable MAPR of $14,113.00 from January 2018 to November 2018 and projected $14,113.00 from December 2018. Accordingly, without making any determination as to the propriety of her asserted exclusions, the Board finds that the appellant is ineligible for receipt of death pension benefits during 2018. See 38 C.F.R. §§ 3.3 (b)(4), 3.23, 3.271, 3.272; M21-1, Part I, Appendix B. Accordingly, in light of the foregoing, the Board finds that, for the entire period prior to January 1, 2013, a monthly pension amount of $46.00 is warranted; for the entire period thereafter to September 1, 2013, a monthly pension amount of $40.00 is warranted; and for the entire period thereafter, the appellant’s income has exceeded the maximum countable income for death pension benefits. The appellant is thus precluded from receiving death pension benefits in excess of those already received. 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 Board empathizes with the appellant’s request but, unfortunately, it is bound by the controlling law and regulations. Under the law, the Board may not award death pension benefits in cases where the appellant’s annual income exceeds the applicable maximum annual pension rate. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel