Citation Nr: 21065414
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 18-31 541
DATE: October 26, 2021

ORDER

The termination of survivor's pension effective March 1, 2018 was proper and entitlement to pension is denied.

FINDING OF FACT

From March 1, 2018, the appellant's countable income exceeded the applicable maximum annual pension rate.

CONCLUSION OF LAW

From March 1, 2018, the criteria for entitlement to survivor's pension 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 matter comes on appeal from an April 2018 decision which terminated survivor's pension from March 1, 2018 based on the appellant's countable income. The appellant submitted a May 2018 notice of disagreement, appealing the April 2018 decision which terminated pension benefits. While the Regional Office characterized the issue as the validity of an overpayment debt in a May 2018 statement of the case, the Board will address the underlying issue as to whether the termination of pension benefits, which resulted in the overpayment debt, was proper. The appellant was scheduled for an August 2021 Travel Board hearing. She did not appear for the hearing, and her hearing request has been withdrawn. 

Whether the termination of pension benefits effective March 1, 2018 was proper

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 shall be reduced by the amount of the countable annual income of the claimant. 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 the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income 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). 

The Board finds that the termination of pension benefits based on SSA income, which has been reported by the appellant, was proper. In a February 2018 letter, the Regional Office (RO) proposed to reduce the appellant's pension benefits from March 1, 2018 based on evidence of unreported SSA income. She was asked to send information from the SSA within 60 days from the date of the letter if the information about her income was wrong. The appellant submitted a SSA letter in March 2018 confirming the receipt of SSA income in the amount of $1,565.00 a month. In April 2018, the RO took action to terminate benefits from March 1, 2018. 

The MAPR for a surviving spouse with no dependents in March 2018 was $8,830.00. 

The appellant contends in her notice of disagreement and substantive appeal that she stopped working in April 2017 and only receives income from SSA benefits. 

As noted above, the appellant confirmed the receipt of SSA income in the amount of $1,565.00 a month. No employment income has been counted. The appellant had an annualized income of $18,780.00 based on her SSA benefits alone. She did not identify any unreimbursed medical expenses to reduce countable income. The Board finds that the appellant's countable income of $18,780 exceeded the MAPR of $8,830.00 and was a bar to the receipt of pension benefits. Therefore, the termination of pension benefits from March 1, 2018 based on income information provided by the appellant was proper. The overpayment debt created by the termination of benefits was valid, and entitlement to pension is denied. 

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christine C. Kung

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.