Citation Nr: 21004764 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-24 400 DATE: January 28, 2021 ORDER The termination of Department of Veterans Affairs (VA) pension benefits due to excessive income, effective July 1, 2009, was proper; the appeal is denied. The overpayment of VA pension benefits in the amount of $43,989.33 was properly created; the appeal is denied. FINDINGS OF FACT 1. The Appellant began receiving Social Security Administration (SSA) benefits in May 2009, causing her countable income to increase beyond net worth limitations for receipt of VA pension benefits. 2. The Appellant failed to report her increased income, and failure to do so resulted in the creation of the overpayment of $43,989.33 currently at issue. 3. The overpayment in the amount of $43,989.33 was not solely the result of VA administrative error. CONCLUSIONS OF LAW 1. Reduction of the Appellant’s pension benefits effective July 1, 2009, due to change in countable income was proper. 38 U.S.C. §§ 1541, 1543; 38 C.F.R. §§ 3.271, 3.272. 2. The overpayment of VA pension benefits in the amount of $43,989.33 was validly created. 38 U.S.C. §§ 5110, 5112; 38 C.F.R. §§ 3.401, 3.501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to August 1970. He died in September 1996, and the Appellant is his surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from January 2015 notification of the termination of VA death pension benefits, effective July 1, 2009. The RO terminated death pension effective July 1, 2009, because the appellant no longer met the income threshold requirements set by law. The notice indicates that the Appellant’s income, effective July 1, 2009, was $10,032.00, exceeding the maximum annual death pension limit set by law for a surviving spouse with no dependents. In January 2020 the Board remanded the case for additional development of the record, and in August 2020, the Board remanded the case for issuance of a supplemental statement of the case (SSOC). As noted in the January 2020 Board remand, in May 2019, the Appellant failed to report for her scheduled hearing before the Board. Since that time, she has not provided a good cause basis for her failure to report or requested that her hearing be rescheduled. As such, the prior request for a hearing was deemed withdrawn. Validity of Debt An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. 38 U.S.C. § 5302; 38 C.F.R. § 1.962. Overpayments created by retroactive discontinuance of benefits will be subject to recovery if not waived. 38 C.F.R. § 3.660(a)(3). Death pension is available to the “surviving spouse” of a Veteran because of a nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C. §§ 101, 1521(j), 1541; 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5). 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. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). 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, 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). Income from SSA is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. In 2009, for death pension purposes, the MAPR for a surviving spouse with no dependent children was $7,933. See Pension Rate Tables, effective December 1, 2009, available at https://www.benefits.va.gov/PENSION/rates_survivor_pen17.asp (accessed on 1/11/2021). The MAPR was increased to $8,359, effective December 1, 2012, $8,630, effective December 1, 2014, $8,656, effective December 1, 2016, $8,830 effective December 1, 2017, and $9,078, effective December 1, 2018. 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.” See 38 U.S.C. § 1503(a)(8); 38 C.F.R. § 3.272 (g)(1)(iii). 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). The effective date of any reduction or discontinuance required because of an increase in income shall be the end of the month in which the increase occurred. See 38 C.F.R. § 3.660(a)(2). 1. Whether termination of VA pension benefits due to excessive income, effective July 1, 2009 was proper 2. Whether the overpayment of VA pension benefits in the amount of $43,989.33 was properly created The Appellant contends that termination of her VA survivors pension benefits was improper and that the resulting overpayment in the amount of $43,989.33, is not valid. The Appellant began receiving death pension benefits in November 1996. The evidence shows that she subsequently began receiving benefits from the Social Security Administration (SSA) in May 2009. As a result of a data match, the Pension Management Center (PMC) discovered the Appellant’s SSA income. In an October 2014 letter, the PMC proposed to terminate the Appellant’s pension payments because her SSA income exceeded the MAPR of $7,933.00 at that time. Following a retroactive adjustment, the above-noted overpayment was created. Per Board remand directives, the Appellant received notification of her rights to request a waiver of the overpayment and/or a repayment plan. The Appellant received notification, including pension rate tables, information about countable income and exclusions from income, including medical expenses. The Appellant has not responded to this notification nor has a waiver been requested. In December 2009, December 2010, and December 2011 the Appellant was advised that she would not receive eligibility verification reports (EVRs) because people with no income other than VA pension do not have to complete an EVR. The letters advised that she would not have to complete the form unless her situation changed and that she must tell VA if she begins receiving Social Security payments or starts getting other income. In December 2011 and December 2012 notification letters, the Appellant was advised that her pension award had been amended to adjust for cost of living. The letters indicate that the Appellant’s net countable income was $0 and that if the income information was incorrect, she should furnish an accurate statement of her income from all sources or net worth changes. In a January 2013 notification letter, the Appellant was notified that VA was discontinuing the use of EVRs due to technological improvements, including expansion of data matching agreements with the Internal Revenue Service (IRS) and the SSA, allowing VA to verify a pension applicant’s income before awarding benefits. It advises that the Appellant must still notify VA of any change in income. In an October 30, 2014 notification letter, the Appellant was advised that through a data match with the SSA, it was found that the she began receiving monthly SSA benefits of $695, effective May 2009. VA advised that it was assumed that she received her first check in June 2009, and therefore began counting the income effective July 1, 2009. It advises that VA proposed to stop her VA pension benefit payments effective July 1, 2009 because her annual income for VA purposes of $8,340.00 exceeded the MAPR of $7,933.00 for a surviving spouse with no dependents that year. In a December 2014 notification letter, the Appellant was notified that she was receiving a cost of living adjustment for her survivor’s pension award, and that she is responsible to tell VA right away if her net worth changes. In a January 2015 notification letter, the Appellant was advised that they wrote to her in October 2014, explaining that VA had received information from SSA concerning her monthly pension checks. The information showed that the Appellant began receiving SSA dual entitlement benefits, effective July 1, 2009, at a higher rate than VA was counting. Information either correcting the information or explaining why the proposed action should not be taken was requested of the Appellant but not received. SSA records show that the Appellant is receiving $836.00 per month in SSA benefits, equaling $10,032.00 in annual income. The maximum annual pension rate for a surviving spouse with no dependents effective July 1, 2009 was $7,933.00. Based on the evidence of record, as the Appellant’s income exceeded VA income limitations as of July 1, 2009, termination of the Appellant’s survivor’s pension benefits effective July 1, 2009 was valid, and the creation of the overpayment of VA pension benefits in the amount of $43,989.33 is valid Here, VA determined that the Appellant was overpaid by $43,989.33 since July 1, 2009. After receiving data match information from SSA, VA requested information from the Appellant regarding her income. However, the Appellant has not responded to this request; she has not reported any medical expenses nor completed the VA Form 21-8416 (Medical Expense Report) for the years of 2009 through 2020. The Board notes that the Appellant has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). Additionally, the evidence shows that VA’s overpayment to the Appellant was not the result of sole VA administrative error. Sole administrative error entails no knowledge or fault on the part of the debtor. See Jordan v. Brown, 10 Vet. App. 171 (1997). The Appellant received multiple notification letters informing her that she was receiving pension benefits and that it was her responsibility to promptly report any change in her income, including SSA benefits. As such, the Board finds that the Appellant knew or should have known that her pension award should have been adjusted based on her income. The Appellant’s failure to promptly notify VA of changes in her income contributed to VA’s payment of the erroneous award; thus, the creation of the overpayment was not a result of sole VA administrative error. 38 U.S.C. § 5112(b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan, supra. Accordingly, the Board finds that the termination of the Appellant’s pension benefits as of July 1, 2009 when her income exceeded the MAPR was proper, and the creation of the overpayment was valid. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, Associate 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.