Citation Nr: 20006233 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 16-29 548 DATE: January 24, 2020 ORDER Entitlement to a higher death pension payment rate is denied. (The Appellant’s claim of entitlement to service connection for the Veteran’s cause of death will be addressed in a separate decision.) FINDINGS OF FACT 1. The Appellant has not submitted any evidence of potential income exclusions or asserted that she has dependents or is housebound or in need of regular aid and attendance of another person. 2. VA has paid the Appellant the maximum annual pension rate (MAPR) for a surviving spouse with no dependents reduced by her Social Security Administration (SSA) benefit entitlement during each twelve-month annualization period since the effective date of her entitlement to death pension benefits. CONCLUSION OF LAW The criteria for a higher death pension payment rate have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to May 1972. He died in June 2015. The Appellant is his surviving spouse. She was granted entitlement to death pension benefits, effective July 1, 2015. She has appealed her death pension payment rate. In October 2016, the Appellant submitted a VA Form 21-22a purporting to appointment an attorney as her representative; however, this attorney does not appear to be accredited by VA. In December 2019, the Board sent the Appellant notice that it could not recognize the attorney as her representative and provided her thirty days to elect a new representative if she so chooses. The Appellant has not elected a new representative; therefore, the Board will proceed with her being unrepresented. The surviving spouse of a Veteran who met the wartime service requirements will be paid the MAPR, reduced by the amount of the spouse’s countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273. The MAPR is published in Appendix B of VA Manual 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. The MAPR is adjusted from year to year. If the claimant’s income is less than the MAPR, VA will pay benefits to bring his or her income up to that level. If the claimant’s income exceeds the MAPR, death pension benefits are not warranted. Payments of any kind from any source shall be counted as income during the twelve-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. SSA payments are not excluded under 38 C.F.R. § 3.272; therefore, they are considered countable income. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable MAPR by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Here, the Appellant has not asserted, and the record does not otherwise suggest, that she has dependents or is housebound or in need of regular aid and attendance of another person; therefore, the applicable MAPR is the MAPR for a surviving spouse with no dependents. At the time of her initial pension claim, the MAPR for surviving spouse with no dependents was $8,630.00. The record establishes the Appellant was entitled to receive $8,547.00 in SSA benefits during her initial twelve-month annualization period for death pension benefits. The Appellant’s death pension benefits were paid a $6.91 per month during this period, which is the difference between the applicable MAPR and her SSA entitlement divided by twelve. Her payments were initially periodic and not rounded because her annual entitlement fell below the $228.00 threshold for monthly payments. The record establishes the Appellant was entitled to receive $8,292.00 in SSA benefits during her second twelve-month annualization period which commenced in July 2016. This amount was slightly lower than her previous twelve-month annualization period because it did not include the one-time SSA death payment of $225.00 for the Veteran. Effective July 1, 2106, the Appellant’s pension benefits were paid at $28.00 per month, which is the difference between the applicable MAPR ($8,630.00) and her SSA entitlement ($8,292.00) divided by twelve and rounded to the nearest dollar since her entitlement crossed the threshold for routine monthly payments. The record establishes the Appellant’s death pension payment rate increased to $29.00 per month, effective December 1, 2017, and to $31.00 per month, effective December 1, 2018, due to a cost-of-living adjustment to the MAPR; however, cost-of-living adjustment to the MAPR are consistent with cost-of-living adjustments for SSA benefits. Compare Social Security Administration, Cost-of-Living Adjustment Information, https://www.ssa.gov/cola/ with U.S. Dep’t Veterans Affairs, Veterans Pension Rate Table, https://www.benefits.va.gov/pension/current_rates_veteran_pen.asp (last visited Dec. 12, 2019). Thus, the Appellant received and continues to receive the difference between the applicable MAPR and her SSA entitlement. The Appellant has not submitted any evidence regarding possible income exclusions rather asserting a higher pension rate is warranted because she experiences financial difficult because of low income. While sympathetic to her claim, the Board notes VA’s income-based pension program is intended to give beneficiaries a minimum level of financial security; benefits are not warranted or reduced when a claimant has other sources of income, such as SSA benefits. See 38 U.S.C. § 1503; 38 C.F.R. § 3.272. VA has properly paid the Appellant’s death pension benefits at the MAPR reduced by her SSA entitlement. Thus, the law is dispositive in the Appellant’s case, and her appeal of her death pension payment rate must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, Counsel 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.