Citation Nr: 19124737 Decision Date: 04/02/19 Archive Date: 04/02/19 DOCKET NO. 17-28 661A DATE: April 2, 2019 ORDER Death pension benefits are granted, subject to the laws and regulations governing the payment of monetary benefits. Special monthly pension (SMP) based on the need for aid and attendance is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The appellant requires custodial care, and her countable income for VA purposes is less than the applicable Maximum Annual Pension Rate (MAPR). 2. The appellant is shown to be in need of regular aid and attendance by another individual. CONCLUSIONS OF LAW 1. The criteria for death pension benefits have been met. 38 U.S.C. §§ 101(3), 1521, 1541, 1543; 38 C.F.R. §§ 3.3, 3.23, 3.50, 3.53. 2. The criteria for SMP benefits based on the need for aid and attendance have been met; this grant renders moot the question of entitlement to special monthly compensation based on housebound status. 38 U.S.C. §§ 1503, 1521, 5121; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.351, 3.352, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1970 to February 1987. He passed away in November 2007. The appellant is his surviving spouse. 1. Entitlement to death pension benefits Basic entitlement to death pension benefits exists if (i) a veteran served for ninety days or more during a period or periods of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on wartime service; 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 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. § 3.3. The term “period of war” is defined by statute to include the Vietnam Era, from August 5, 1964 through May 7, 1975. See 38 U.S.C. § 101; 38 C.F.R. § 3.2. Certificates of service shows that, in the current appeal, the Veteran served in an active duty capacity (with an honorable discharge) from 1970 to 1987, and thus, the first element of the criteria is met. The Veteran, at the time of his death, was receiving compensation from VA for service-connected disabilities based on Vietnam Era service; hence the second element is also met. The appellant also reported assets of approximately $400 in her application for pension benefits. While there is no specific dollar limitation on net worth (as opposed to income) that bars an otherwise eligible claimant from receiving pension benefits under 38 C.F.R. § 3.274, given the relatively small amount of assets, the Board of Veterans’ Appeals (Board) finds that this criterion is also met. Therefore, the Board must consider whether the appellant’s countable income is in excess of the applicable maximum annual pension rate. Basic entitlement to death pension benefits exists if, among other things, the surviving spouse’s income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 as changed periodically and reported in the Federal Register. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3 (b)(4), 3.23(a), (b), (d)(5). 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. 38 C.F.R. §§ 3.21, 3.23. The MAPR is revised every December 1st (although it was not revised in 2015) and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503 (a); 38 C.F.R. § 3.271(a). Unreimbursed medical expenses in excess of 5 percent of the maximum annual pension rate (MAPR), which have been paid, may be excluded from an individual’s countable income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272 (g)(1)(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 appellant 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. Regarding deductible medical expenses, independent or assisted living facility expenses may be deducted in certain circumstances. Specifically, the claimant must be rated for special monthly pension and the custodial care requirement (CCR) must be met. The CCR may be satisfied in one of two ways; either the claimant receives regular assistance with two or more activities of daily living (ADLs), or the claimant receives regular supervision because she has a physical, mental, developmental, or cognitive disorder requiring care and assistance on a regular basis to be protected from hazards or dangers of her daily environment. VA’s M21-1 Adjudication Procedures Manual M21-1, V.iii.1.G.3.e. [VA Manual M21-1 reflects the policy of the Veterans Benefit Administration (VBA), and not the policy of the VA Secretary, given that VBA and the Secretary are separate entities within VA and that M21 provisions do not go through the regular rulemaking procedures. Unlike a regulation, the VA Secretary has no say in what goes into the Manual.] Under M21-1, V.iii.1.G.3.f., ADLs are basic self-care activities, consisting of: bathing or showering; dressing; eating; getting in or out of bed or a chair, etc. ADLs do not include Instrumental Activities of Daily Living (IADLs). IADLs are activities other than basic self-care that are needed for independent living. Examples of IADLs include shopping; food preparation; housekeeping; laundering; handling medication; and using the telephone. The appellant filed a claim for death pension benefits in March 2016. In a September 2016 decision, VA denied the appellant’s claim for survivor pension benefits because it found that her countable income exceeded the MAPR. At the time of the denial, VA declined to reduce her income by her assisted living expenses. The Board finds that sufficient evidence has been submitted to establish that the claimant can be rated for special monthly pension (as discussed in the following section) and the (CCR) has been met; hence expenses paid to the facility may be deducted. Specifically, the CCR is satisfied in this case, as the appellant receives regular assistance with two or more ADLs. As to what assistance the appellant receives from her assisted living facility (ALF), the claimant submitted a June 2017 letter from her private physician which stated that her ALF monitored her medication due to her being unable to draw up her own insulin and give herself injections. He stated that it also provided balanced meals for her, as she is a diabetic. Further, and most significantly, he wrote that the ALF assisted her with showering and dressing herself, as she was a fall risk in the shower and was unable to bend over to dress herself. This letter highly probative, as the appellant’s physician is particularly aware of her physical limitations and what actions she would be unable to perform daily without assistance. Further, showering and dressing are explicitly identified in M21 as ADLs, and are activities with which the physician stated the appellant cannot do without assistance. Thus, the appellant receives assistance from her ALF with at least two ADLs, and the CCR requirement is met. Therefore, it is appropriate to reduce her countable income by expenses paid for her ALF. The appellant has submitted contradictory evidence as to what date she began residing at the ALF. A request for nursing home information form submitted in March 2016, which was purportedly signed by an administrator of the ALF, stated that the appellant was admitted to the facility on November 20, 2015. However, a resident contract submitted in September 2016 stated that the appellant was admitted to the facility on August 12, 2016. Affording the appellant the benefit of the doubt, the Board finds that she was admitted to the facility in November 2015, and, thus, had been paying monthly expenses to the facility since before she filed her claim for pension benefits. Thus, a new calculation of the Veteran’s countable income and comparison to the applicable MAPR is necessary, given the determination that her ALF expenses can be used to reduce her countable income. As the Board is deciding in this decision, below, that the appellant was in need of aid and attendance when she filed her claim, the appropriate MAPR to use is the one for a surviving spouse with aid and attendance. At the time she filed her claim in March 2016, and, thus, at the time her eligibility is first considered, the MAPR for a surviving spouse without dependents with aid and attendance was $13,794.00 (effective December 1, 2014). The appellant submitted documentation with her claim in March 2016 which showed that, effective March 2015, the appellant received $1603.50 per month in Social Security income. She also reported $349 per month in pension benefits. Thus, her annual income was $23,430 when she applied for death pension benefits. Accordingly, the appellant’s income was in excess of the MAPR at the time she filed for benefits. However, her income is not her “countable” income until unreimbursed medical expenses have been subtracted. The Social Security Administration document which showed her income also showed the amount deducted for Medicare premiums. These expenses totaled $104.90 per month, or $1,258 per year (VA does not include partial dollars in income and expense amounts in determining countable income; thus, $1,258.80 is rounded down to $1,258). In addition, the appellant submitted a medical expense report in September 2016, which stated her monthly ASL expenses were $1,568.00, or $18,816 annually. Thus, her total unreimbursed annual medical expenses when she applied for benefits amounted to $20,074 ($1,258+$18,816) and reduced her income to her countable income of $3,356 ($23,430-$20,074). Therefore, allowing her ALF expenses to be deducted from her income resulted in a countable income of $3,356, which was lower than the applicable MAPR of $13,794.00. Given the deduction of ALF expenses, the appellant’s countable income was far lower than the applicable MAPR for a surviving spouse with aid and attendance and no dependents when she applied for death pension benefits, and her entitlement should have granted. Accordingly, entitlement to death pension benefits is granted. 2. Entitlement to SMP benefits based on the need for aid and attendance A spouse who is eligible for pension can receive an additional pension if there is a need for the aid and attendance of another person as defined by 38 C.F.R. § 3.352. 38 C.F.R. § 3.351. Specifically, SMP benefits are warranted if the spouse is in need of regular aid and attendance. 38 U.S.C. § 1521(d). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). The spouse shall be considered to be in need of regular aid and attendance if the person is: blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or, establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. 38 C.F.R. § 3.352(a). Further, it is only necessary to establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. Determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. Id. They must be based on the actual requirement of personal assistance from others. Id. The appellant is in need of personal assistance from others, particularly as to dressing, showering, and administering her medication. Thus, she is in need of regular aid and attendance by another, as a factual need to aid and attendance has been established under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.102. As such, the claim for SMP based on aid and attendance is granted. (CONTINUED ON NEXT PAGE) Further, in light of the grant of SMP based on the need for the aid and attendance of another person, an award of SMP based on housebound status cannot be awarded. 38 C.F.R. § 3.351(d). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel