Citation Nr: A21016398
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 210729-175653
DATE: October 6, 2021

ORDER

A death pension is denied.

 

FINDING OF FACT

The appellant's countable income exceeds the applicable maximum annual pension rate (MAPR).

CONCLUSION OF LAW

The criteria for a death pension 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 April 1957 to December 1968.  He died in February 2018 and the appellant is his surviving spouse.

The case is on appeal from a June 2021 decision.  In the July 2021 notice of disagreement (NOD) on appeal, the appellant listed the issue of entitlement to "DIC pension" and did not list a date of decision appealed.  As the NOD was submitted within one year of the June 2021 decision that addressed entitlement to death pension benefits, the Board construes the NOD as appealing the death pension claim adjudicated by such decision.  See 38 C.F.R. § 20.202(a).

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).

 

A death pension.

Legal Criteria

Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the 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.  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.  

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 a death pension.  In a June 2021 claim form, she reported receiving monthly income from the SSA and an additional $1,055 per month of retirement benefits.  

Later in June 2021, the appellant's SSA income information was associated with the file.  It shows that she pays a Medicare premium of $148.50 per month and receives $1,356.60 per month in SSA income.

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The Board finds that death pension benefits are not warranted because the appellant's countable income exceeds the applicable MAPR.  In this regard, the appellant's annualized SSA income is $16,279 plus annualized retirement income of $12,660.  The appellant pays an annualized Medicare premium of $1,782.  After subtracting $467 (5 percent of the applicable MAPR) from the Medicare premium, she has a total unreimbursed medical expense deduction of $1,315.  Total income minus the medical expense deduction leaves an adjusted income of $27,624, which is in excess of the applicable MAPR of $9,344.  

Thus, the Board finds that the appellant's countable income exceeds the applicable MAPR.  Therefore, the preponderance of the evidence shows that entitlement to a death pension is not warranted.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jimerfield, David

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.