Citation Nr: 21066922 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-33 867A DATE: November 2, 2021 ORDER Entitlement to death pension benefits is denied. Entitlement to accrued benefits is denied. REFERRED The issue of entitlement to an apportionment of the Veteran's disability benefits on behalf of the Veteran's children was raised by the Veteran's ex-wife, the appellant in this matter, in a December 2017 statement. The Agency of Original Jurisdiction (AOJ) has not developed or adjudicated that claim. As that claim is not in appellate status, the Board does not have jurisdiction over it and refers it to the AOJ for appropriate action. The issue of reopening the claim for entitlement to service connection for the Veteran's cause of death has also been raised by the record. The Board denied the claim in February 2020, at which time it remanded the remaining issues on appeal. After receiving a Supplemental Statement of the Case, the appellant submitted the Veteran's Certificate of Death showing his cause of death. However, as that issue is no longer on appeal because it was already adjudicated, the issue is referred to the AOJ for appropriate action, including a decision on whether the claim should be reopened. FINDINGS OF FACT 1. The Veteran's children's countable income exceeds the applicable maximum annual pension rate (MAPR) payable to a surviving child. 2. The combined countable income of the appellant and the Veteran's children exceeds the applicable MAPR payable to a surviving spouse with two children of a veteran. 3. The Veteran died in December 2017 and had no claims for VA benefits pending at the time of his death, nor were there any benefits due to the Veteran, but unpaid, prior to the last date of entitlement. CONCLUSIONS OF LAW 1. The criteria for death pension benefits are not met. 38 U.S.C. §§ 1503, 1521, 1541, 1542, 5107(b); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272. 2. The criteria for accrued benefits are not met. 38 U.S.C. §§ 101, 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2003 to July 2006. The Veteran died in December 2017. The appellant has initiated this claim on behalf of the Veteran's children, who are both minor children and less than 18 years of age. The appellant is the mother and legal custodian of the Veteran's children. The appellant and the Veteran were divorced at the time of his death, and she is not the Veteran's surviving spouse; she has not asserted otherwise. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 decision issued by the Department of Veterans Affairs (VA) AOJ which denied entitlement to death pension benefits and accrued benefits. This case was before the Board most recently in February 2020. At that time, the Board adjudicated that appeal for entitlement to service connection for the Veteran's cause of death and remanded the claims for death pension and accrued benefits. The Board finds that the AOJ substantially complied with remand directives and those issues are ready for adjudication. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to death pension benefits Pension is a monthly or other periodic payment made by VA to a veteran because of service, age, or nonservice-connected disability, or to a surviving spouse or child of a veteran because of the nonservice-connected death of the veteran. The purpose of VA pension benefits is to provide a subsistence income for Veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level for themselves and their families. The appellant contends that the Veteran's surviving children are entitled to death pension benefits. Pension benefits are based upon total family income, and the amount of pension benefits is adjusted based upon the number of dependents the veteran supports. The amount of pension actually received is the difference between the recipient's countable income and the maximum annual pension rate (MAPR) permitted by VA given the recipient's circumstances. Pension is not payable if the recipient's countable annual income exceeds the maximum limitation given the recipient's circumstances as set forth in the legislation. The MAPR is adjusted from year to year. Recipients are required to report any changes in income and number or status of their dependents in a timely fashion. See generally 38 U.S.C. §§ 101, 1501 et seq. For a child in the custody of a person legally responsible for support of that child, pension shall be paid at an annual rate equal to the difference between the MAPR for a surviving spouse and one child under 38 C.F.R. § 3.23 (a)(5), and the sum of the annual income of such child and the annual income of the legal custodian. 38 C.F.R. § 3.24 (c). In determining annual income for pension purposes, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived), which is received by anyone in the recipient's household, are generally counted as income during the 12-month annualization period in which received. 38 C.F.R. §§ 3.271, 3.272. 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. Only those amounts that are listed in 38 C.F.R. § 3.272 may be excluded from countable income for determining entitlement to improved pension. 38 U.S.C. § 1503; 38 C.F.R. §§ 3.271, 3.272. Unreimbursed medical expenses in excess of five percent of the minimum MAPR may be excluded from income for the same 12-month annualization period, to the extent they were paid; these include health insurance premiums such as Medicare. 38 C.F.R. § 3.272 (g). 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. Exclusions from countable income for the purpose of determining entitlement to pension also include amounts paid for a Veteran's just debts and expenses of last illness and burial, to the extent such burial expenses were not reimbursed by VA. 38 C.F.R. § 3.272. For the purposes 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. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.24. 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 maximum annual rates of improved pension are specified in 38 U.S.C. §§ 1541 and 1542, as increased from time to time under 38 U.S.C. § 5312. The rates of death pension benefits are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1, and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. Effective December 1, 2017, for the timeframe during which the appellant filed her claim, the MAPR for a child alone was $2,250, and the MAPR for a surviving spouse with one dependent child was $11,557 plus $2,250 for each additional child. The appellant has two dependent children. Thus, the MAPR for this period was $13,807. If the household income exceeded $13,807, no death pension benefits are warranted for the children. In the appellant's February 2018 claim, she indicated that she received $1,600 per month in "salaries" and $750 per month in "wages." Thus, the total she reported was $2,350 per month. The appellant did not report any medical expenses, or any other expenditures that would offset her income or the Veteran's children's income. In February 2020, the AOJ received notice from the SSA that each of the Veteran's children received $561 per month from December 1, 2017. Therefore, the children received $1,122 monthly. The Veteran's children are residing with the appellant, their mother, who is a person legally responsible for the children's support. As such, the appellant's income must be counted with that of the Veteran's surviving children in determining eligibility for death pension benefits. See 38 U.S.C. §§ 1541, 1542. The Board finds that the countable income of the appellant and the Veteran's children exceeds the MAPR for a surviving spouse with two dependents; thus, death pension benefits are not warranted. For the 12-month period following the appellant's claim, her income was $28,200 and the Veteran's children's countable income was $13,464. The amount of the appellant's income is the 12-month sum of her income of $2,350 per month over the course of 12 months. The amount of the Veteran's children's income is the 12-month sum of their income of $1,122 per month. The sum of the countable income of the appellant and the Veteran's children is $28,200. Thus, the appellant's income is in excess of the MAPR of $13,807. The appellant has provided no evidence that indicates this amount has decreased in the period since this claim was filed. There is also no indication that any of the income considered is excluded from consideration under 38 C.F.R. § 3.372. Moreover, in February 2020, the AOJ requested additional information regarding the appellant's income, especially in subsequent years since she filed her initial claim. The June 2020 Supplemental Statements of the Case (SSOC) explained that the claim was denied, in part, because of lack of income information. In August 2020, the appellant responded, indicating that she received the AOJ's letter, and she submitted the SSOC Notice Response indicating she had additional evidence, but the evidence she submitted was not income information. She submitted the Veteran's Certificate of Death showing his cause of death, which is not relevant to the pension claim, and seems to be in response to the claim for service connection for the Veteran's cause of death, which was denied by the Board in February 2020. As the only income information the Board has before it is from February 2018, and the appellant has not indicated a decrease in income, the Board cannot find that pension was warranted at any other point in the appeal period. After being notified that income information and medical expenses were needed, the appellant did not provide the requested information. The duty to assist is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Significantly, the burden is on the appellant to demonstrate her household income was not excessive and that her annual income is below the maximum allowable rate for receipt of death pension. The Board finds the appellant has not met her burden and the claim must be denied. The Board acknowledges the appellant's statements that she is solely responsible for the welfare and upkeep of the Veteran's children, and they should receive benefits for a more comfortable life and to compensate for the trauma of losing their father. However, as noted above, the Board is not able to award pension benefits on an equitable basis or out of fairness. Pension is based on income eligibility, and the evidence submitted by the appellant shows that her income exceeds the annual MAPR determined by law. The Board is certainly sympathetic to the appellant's and the Veteran's children's circumstances; however, death pension benefits are not warranted in this case. Accordingly, the claim for death pension benefits is denied. The Board finds that the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to accrued benefits The appellant seeks entitlement to accrued benefits on the Veteran's children's behalf. Specific argument in support of this appeal has not been provided. Accrued benefits are defined as "periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid for a period not to exceed two years." See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). Accrued benefits may be paid upon the death of a veteran to his or her spouse. 38 C.F.R. § 3.1000 (a)(1)(i). A claim for death pension, compensation, or DIC is deemed to include a claim for any accrued benefits. 38 C.F.R. §§ 3.152 (b), 3.1000(c). Unlike other death benefits, however, the application for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000 (c). In sum, for a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee's death. 38 U.S.C. §§ 5101 (a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). After a review of the claims file, the Board finds that accrued benefits are not warranted. The Veteran did not have any pending claims at the time of his death. In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit held that, for an eligible person to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (holding that a consequence of the derivative nature of an accrued benefits claim is that, without the veteran having a claim pending at time of death, the eligible survivor (in this case a surviving spouse) has no claim upon which to derive his or her own application). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160 (c). The claims file shows that the Veteran did not file an application, formal or informal, at any time after December 2009, and that particular claim was adjudicated in June 2010. The ratings of the Veteran's service-connected disabilities were periodically examined, and in October 2017, a rating reduction was proposed. However, it was never effectuated. Nevertheless, because the Veteran did not have any pending claims when he died, entitlement to accrued benefits may not be granted as a matter of law. See 38 C.F.R. § 3.1000; Jones, 136 F.3d at 1299. Consequently, entitlement to accrued benefits is denied. As noted above, the appellant filed a claim for apportionment in December 2017. A claim for apportionment of a living veteran's current disability benefits is a separate claim from one of entitlement to DIC, to include a claim for accrued benefits, on behalf of survivors upon a veteran's death. As the AOJ has not adjudicated the apportionment claim, it is not on appeal and the Board must refer it to the AOJ for development. While the Board is sympathetic to the appellant's situation, the Board observes that the payment of monetary benefits must be authorized by statute. The principles of equity cannot be applied to award benefits that are not authorized by statute. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). Therefore, the Board is without authority to grant the appellant's claims on an equitable basis and instead is constrained to follow the specific provisions of law governing accrued benefits claims. See also 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In conclusion, accrued benefits must be denied. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law and the benefit-of-the-doubt doctrine does not apply. Sabonis v. Brown, 6 Vet. App. 426 (1994). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.