Citation Nr: 21003828 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-54 161 DATE: January 22, 2021 ORDER Survivor pension benefits are denied.   FINDING OF FACT The appellant’s countable income exceeds the applicable maximum annual pension rate. CONCLUSION OF LAW The criteria for entitlement to payment of survivor pension benefits are not met. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to February 1969. The Veteran died in February 2016 and the appellant is his surviving spouse. The case is on appeal from a February 2017 decision. The Board remanded this claim for additional development in August 2020. In October 2020, the appellant submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Survivor pension benefits. Legal Criteria Basic entitlement to 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. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(a)(3). The MAPR is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21; see also https://www.benefits.va.gov/PENSION/rates_survivor_pen16.asp. The MAPR is revised every December 1st 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, 1541; 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). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272 and is therefore included as countable income. For purposes of calculating pension benefits, total 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 or rates…as in effect during the 12-month annualization period in which the medical expenses 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 surviving spouse received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. In order to be excluded from income, 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, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. For the purpose of determining initial entitlement, or resuming payments on an award that was previously discontinued, 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 twelve. 38 C.F.R. § 3.273(a). In essence, VA subtracts the total amount of countable income in one year, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273(b)(2). Analysis The appellant is seeking survivor’s pension benefits. The claim was received in April 2016. In an March 2017 notice of disagreement, she reported that a $255 SSA benefit provided due to her husband’s death was a one-time payment. In an October 2017 correspondence, the appellant reported experiencing financial hardship. As the claim was received within one year of the Veteran’s death in February 10, 2016, the claim is effective on such date. The appellant’s SSA records show monthly income of $1,069.90 from February 2016 to November 2016, $1,073 from December 2016 to November 2017, $1,095 from December 2017 to November 2018, $1,125 from December 2018 to November 2019, and $1,143 since December 2019. Her SSA records also show a March 2016 Medicare premium of $104.90 that she has not had to pay subsequently. The appellant reported unreimbursed medical expenses from February 2016 to February 2017 totalling $1,238.90, including claimed supplements and dietary items she reports were suggested by her physician. From March 2017 to December 2017, she reported unreimbursed medical expenses of $270.58. The Board finds survivor pension benefits are not warranted because the appellant’s countable income exceeds the applicable maximum annual pension rate. In this regard, from February 2016 to February 2017, the appellant’s SSA income was $12,848.10 plus a single SSA death benefit payment of $255. The applicable MAPR prior to December 2016 was $8,630. The appellant’s claimed medical expenses of $1,238.90 minus $431 (5 percent of the applicable MAPR) from the claimed medical expenses results in a total deduction of $807.90. Total income minus the medical expense deduction leaves an adjusted income of $12,295, which is in excess of the applicable MAPR. In addition, for 2017, the appellant’s SSA income was $12,898. The applicable MAPR prior to December 2017 was $8,656. The appellant’s claimed medical expenses of $508.96 minus $432 (5 percent of the applicable MAPR) from the claimed medical expenses results in a total deduction of $76.96. Total income minus the medical expense deduction leaves an adjusted income of $12,821, which is in excess of the applicable MAPR. The appellant’s income also exceeds the applicable MAPRs since 2017. She has not reported medical expenses incurred since 2017. In 2018, her SSA income was $13,170 and the applicable MAPR prior to December 2018 was $8,830. In 2019, the appellant’s SSA income was $13,170 and the applicable MAPR prior to December 2019 was $8,830. In 2019, her SSA income was $13,518 and the applicable MAPR prior to December 2020 was $9,078. Thus, the Board finds that the appellant’s countable income exceeds the applicable maximum annual pension rate throughout the appeal period. Therefore, the preponderance of the evidence shows that entitlement to a survivor’s pension is not warranted. The Board is sympathetic to the appellant’s circumstances. However, by law the Board cannot grant pension benefits where the claimant’s income exceeds the applicable maximum annual pension rate. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.