Citation Nr: 20004964 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-46 294 DATE: January 23, 2020 ORDER Entitlement to survivors’ pension benefits is denied. FINDING OF FACT 1. The Veteran served for ninety days or more during a period of war. 2. The Appellant is the Veteran’s biological child. 3. The Appellant’s countable income 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; 38 C.F.R. §§ 3.3, 3.24, 3.57, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from November 1942 to January 1946. The record shows that the Veteran died in April 1989. The Appellant claims as the Veteran’s surviving son. 1. Entitlement to survivors’ pension benefits The Appellant contends he is entitled to survivor’s death pension benefits as a helpless child of the Veteran. 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. 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 Appellant filed a claim for death pension benefits in September 2006. In a December 2006 decision, the VA Regional Office (RO) determined that the Appellant was not permanently incapable of self-support prior to the age of 18. The Appellant filed to reopen his claim in November 2009. In January 2010 the RO sent the Appellant a letter requesting additional evidence and submission of VA Forms 21-0519c “Improved Pension Eligibility Report” and 21-8416 “Medical Expense Report”. The RO denied the claim in April 2010 because the Appellant had not submitted any of the requested evidence or forms. The Appellant submitted a VA Form 21-0519C-1 Improved Pension Eligibility Verification Report in November 2010. In February 2011 the RO denied the claim because his income exceeded the maximum annual pension limit. In March 2016 the Appellant filed another claim for death pension benefits. The RO reopened the claim and in June 2016 denied the claim because the Appellant’s income exceeded the maximum annual pension limit. The Appellant filed a timely notice of disagreement alleging that his SSA income had changed since his March 2016 application. In July 2017 the RO issued a Statement of the Case denying the claim, finding no evidence that the Appellant’s income had decreased. To be eligible for death pension as a veteran’s surviving helpless child, the surviving child must meet the net worth requirements of 38 C.F.R. § 3.274 and the child’s income must not be in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.24. The issue is whether the Appellant’s income exceeds the maximum annual pension rate (MAPR) for a surviving child. 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. 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. The MAPR benefits for a veteran’s surviving child without a personal custodian, like the Appellant in this case, are $2,020, effective December 1, 2008; $2,093, effective December 1, 2011; $2,129, effective December 1, 2012; $2,161, effective December 1, 2013; $2,198, effective December 1, 2014; $2,205, effective December 1, 2016; $2,250, effective December 1, 2017; $2,313, effective December 1, 2018; and $2,351, effective December 1, 2019. 38 C.F.R. § 3.24 (b). 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. The record indicates that the Appellant has been in receipt of SSA benefits for the entire appeal period. The Appellant reported monthly SSA payments of $629 during 2006, totaling $7,548 per year. A June 2016 SSA inquiry shows monthly payments of $660 in 2008, totaling $7,920 per year. As of December 2008, that payment was increased to $698 per month, totaling $8,376 per year. The Appellant received annual increases in his SSA payments thereafter. In December 2011 the payments were increased to $723 per month for $8,676 per year; in December 2012 payments were increased to $735 per month for $8,820 per year; in December 2013 payments were increased to $746 per month for $8,952 per year; in December 2014 payments were increased to $759 per month for $9,108 per year; and in January 2015 payments were increased to $776 per month for $9,312 per year. In November 2016 the Appellant reported that he was still receiving $9,312 per year from SSA. There is no evidence of any other income. The RO has determined that the Appellant’s net worth is zero. No evidence of any medical expenses has been provided. The Appellant’s countable income has continuously exceeded the MAPR for a surviving child. While the Appellant contends that his SSA income has changed, he has provided no evidence to support the contention. His representative acknowledges that no proof of any change in SSA benefits has been provided. As the Appellant’s income exceeds the MAPR for a surviving child, he is not legally entitled to VA death pension benefits. Therefore, his claim of entitlement to survivors’ pension benefits must be denied. Because income is excessive, we do not reach the issue of whether the appellant was a helpless child. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.