Citation Nr: 21066764 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-50 276 DATE: November 2, 2021 ORDER Entitlement to nonservice-connected survivor's pension benefits is denied. FINDING OF FACT The appellant's countable annual income exceeded the applicable maximum annual pension rate (MAPR) for a surviving spouse without dependents. CONCLUSION OF LAW The criteria for entitlement to a nonservice-connected survivor's pension have not been met. 38 U.S.C. §§ 1503, 1521, 1541; 38 C.F.R. §§ 3.2, 3.3, 3.21, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to April 1975. He died in June 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 decision which denied entitlement to survivor's pension benefits. The Board notes that while the appellant asserts that she is the Veteran's surviving spouse, VA has not yet received information needed to determine the appellant's status as surviving spouse. Rather, VA adjudicated and denied the claim on the basis of excessive income. See March 2017 Decision Notification Letter. In July 2021, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. The Board notes that entitlement to service connection for the Veteran's cause of death and entitlement to Dependency and Indemnity Compensation benefits under 38 U.S.C. § 1318 will be addressed in a separate Board decision. Entitlement to nonservice-connected survivor's pension benefits. The appellant is seeking entitlement to nonservice-connected survivor's pension benefits. In this regard, nonservice-connected survivor's pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if the veteran had qualifying wartime service or if the veteran at the time of death was receiving or was entitled to compensation for a service-connected disability based on service during a period of war. Qualifying service is service in the active military, naval, or air service for 90 days or more during a period of war (or other criteria not applicable in this case). 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.2, 3.3. At issue is whether the appellant's countable annual income exceeds the applicable maximum annual pension rate (MAPR) set by law. The Board finds that entitlement to nonservice-connected survivor's pension benefits is not warranted because the appellant's countable annual income exceeded the MAPR for a surviving spouse without dependents. The annual income of the surviving spouse must not exceed the MAPR specified in 38 U.S.C. § 5312, increased from time to time as published in the Federal Register. 38 C.F.R. §§ 3.3, 3.23. The MAPR is published in the Compensation and Pension Service's manual, M21-1, and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21. Income includes payments of any kind from any source during a twelve-month period except for exclusions, including unreimbursed burial expenses and medical expenses in excess of five percent of the pension rate. 38 U.S.C. § 1503; 38 C.F.R. § 3.271(a), 3.272. General living expenses for utilities, life insurance premiums, housing, and transportation (other than for medical care) are not excludable. If the appellant's income is less that the MAPR, VA will pay benefits to bring the income up to that level. 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). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Income from Social Security Administration (SSA) benefits, to include Social Security disability payments, is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Certain unreimbursed medical expenses may be excluded from countable income for the same 12-month annualization period to the extent they were paid. To be considered, the total expense must be in excess of five percent of the MAPR. 38 C.F.R. § 3.272. The Board notes that while the appellant's formal claim was not received until August 10, 2016, the record indicates that VA acknowledged an Intent to File received on July 29, 2016. As the appellant's formal claim was received within one year of the Intent to File, her claim for survivor's pension benefits will be considered from July 29, 2016. Thus, for the initial annualization period, income will be counted from July 29, 2016, through the end of the month that is twelve months after that day, or July 31, 2017. VA calculated the appellant's yearly income as $9,756 and considered $487 in medical expenses. See July 2017 Statement of the Case. Turning to the evidence of record, on an August 2016 VA Form 21-534EZ (Application for DIC, Death Pension, and/or Accrued Benefits), the appellant reported receiving $813 per month in Social Security Administration (SSA) benefits. She did not report any other income or medical expenses. The appellant submitted a February 2015 SSA letter which indicated that her SSA benefit was $813.90 per month beginning December 2014 and that medical insurance premiums were not deducted from her SSA benefit. On a September 2016 VA Form 21-534EZ, the appellant reported receiving $813 per month in SSA benefits and paying $104 for Medicare insurance premiums. In a March 2017 VA Form 21P-8416 (Medical Expense Report), the appellant reported traveling 70.1 miles in 2016 and 8.2 miles in 2017 to medical facilities. She also reported paying $104 for Medicare insurance premiums, $424 for Medicare prescription copayments, and $21 in AARP prescription insurance premiums. Additionally, she submitted a Medicare statement dated in November 2016 showing that her out-of-pocket costs for prescription copayments from January 1, 2016 through November 30, 2016 totaled $424.30. The statement indicates that of this $424.30, the appellant was responsible for $64.60 and that other organizations paid the remaining $359.70. The appellant also submitted an AARP statement for January 2017 showing a monthly premium of $6. The appellant indicates that she paid $6 on January 1, as well as made a payment of $12 in March 2017 for February and March. A June 2017 Social Security Administration (SSA) Inquiry shows that the appellant's monthly SSA benefit was $813 in December 2015, or $9,756 yearly, and that her medical insurance premium was paid by the State. In December 2016, the appellant's monthly SSA payment increased to $816. Here, the Board finds that for the initial annualization period, the appellant received $813 per month in SSA benefits and that her income totaled $9,756 yearly. Regarding unreimbursed medical expenses, the RO valued the appellant's mileage at $0.54 (54 cents) a mile in 2016 and at $0.535 a mile in 2017. For 70.1 miles travelled in 2016 and 8.2 miles in 2017, this results in $42.24 in mileage. As to Medicare insurance premiums, while the appellant reported paying $104, the SSA Inquiry reflects her Medicare insurance premium was paid by the State. Thus, this expense is not an unreimbursed medical expense paid by the appellant and cannot be considered to reduce her countable income. As to Medicare prescription copayments, the appellant reported on her Medical Expense Report that she paid $424 from August 2016 through August 2017. A Medicare statement dated in November 2016 submitted by the appellant reflects that while her out-of-pocket cost totaled $424.30 from January 1, 2016 through November 30, 2016, other organizations paid $359.70 towards this amount, and she was only responsible for $64.60. The Board notes that the November 2016 statement reported out-of-pocket costs from January 1, 2016 through November 30, 2016 and that payments made prior to the appellant's July 2016 pension claim cannot be considered to reduce her countable income. However, VA accepted the total amount of $424 as unreimbursed medical expenses and the Board will afford the appellant the benefit of the doubt and accept the full amount in considering her pension claim. As to AARP prescription premiums, the appellant reported on her Medical Expense Report paying $21 total in AARP prescription premiums for January, February, and March 2017, or $7 a month. An AARP statement submitted by the appellant reflects her premium was $6 per month beginning in January 2017, and that she paid $18 total for three months. However, VA accepted the amount of $21 as an unreimbursed medical expense and the Board will afford the appellant the benefit of the doubt and accept the higher amount of $21 in considering her pension claim. As such, the Board finds that the appellant's unreimbursed medical expenses (mileage, Medicare prescription copayments, and AARP prescription premiums) totaled $487. Unreimbursed medical expenses in excess of five percent of the applicable MAPR are used to reduce countable income. The MAPR effective December 1, 2014 through December 1, 2016 for a surviving spouse without dependents was $8,630, and five percent of this amount is $431. Therefore, in calculating the appellant's countable income, only unreimbursed medical expenses in excess of $431 can be considered. In this case, the record reflects that the appellant had unreimbursed medical expenses of $487. Deducting $431 from $487 results in $56 in countable unreimbursed medical expenses. Deducting the amount of countable unreimbursed medical expenses from the appellant's income of $9,756 results in countable income of $9,700 for the initial annualization period, which exceeds the applicable MAPR of $8,630 for a surviving spouse without dependents. Since the initial annualization period, SSA benefits and VA survivor's pension benefits have increased due to cost-of-living increases. The record does not contain documentation of the appellant's income or unreimbursed medical expenses since the initial annualization period. However, during the July 2021 Board hearing, the appellant indicated that her income and medical expenses had not changed. Additionally, the appellant has not submitted evidence that her income decreased, or her medical expenses increased, such that her countable income no longer exceeds the applicable MAPR. As such, the Board finds that remand for further development is not warranted. In light of the foregoing, the appellant is not entitled to payment of VA nonservice-connected survivor's pension benefits because her income has exceeded the legal limit. The Board recognizes the Veteran's honorable wartime service and the appellant's application for pension and is sympathetic to her contention that her expenses exceed her income. However, the Board is nonetheless bound by the laws enacted by Congress, the regulations of the Department, the instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. 38 U.S.C. § 7104(c). In this case, the law passed by Congress specifically prohibits the payment of VA nonservice-connected survivor's pension benefits when the appellant's income exceeds certain levels. Because the appellant's annual countable income exceeds the statutory limit, she is not legally entitled to payment of VA nonservice-connected survivor's pension benefits, regardless of the Veteran's honorable wartime service or any financial hardship. Therefore, the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.