Citation Nr: A21018486 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 210211-168116 DATE: November 18, 2021 ORDER Entitlement to an increased rate of payment for survivors' pension benefits based on the need of aid and attendance is denied. FINDINGS OF FACT 1. From November 1, 2019 to December 31, 2019, the applicable maximum annual pension rate (MAPR) of $14,509.00 exceeded the Appellant's annualized income of $9,046.00 by $5,463.00; the Appellant was paid the correct amount of monthly pension, and no increase in the rate of payment from November 1, 2019 to December 31, 2019 is warranted. 2. From January 1, 2020 to October 31, 2020, the applicable MAPR of $14,742.00 exceeded the Appellant's annualized income of $9,310.00 by $5,432.00; the Appellant was paid the correct amount of monthly pension, and no increase in the rate of payment from January 1, 2020 to October 31, 2020 is warranted. 3. From November 1, 2020, the applicable MAPR of $14,742.00 exceeded the Appellant's annualized income of $9,848.00 by $4,894.00; the Appellant was paid the correct amount of monthly pension, and no increase in the rate of payment from November 1, 2020 is warranted. CONCLUSION OF LAW The criteria for entitlement to an increased rate of payment for survivors' pension benefits 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 FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1952 to December 1953. During his period of service, he earned the Korean Service Medal with one (1) Star, United Nations Medal, National Defense Service Medal, China Service Medal, Navy Occupation Service, and Korean Presidential Unit Citation. The Veteran died in February 2001. The Appellant is his surviving spouse. In the February 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2020 Agency of Original Jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of entitlement to an increased rate of payment for survivors' pension benefits, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Appellant may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an increased rate of payment for survivors' pension benefits The Appellant seeks entitlement to an increased survivors' pension benefit. To determine the amount of an eligible surviving spouse's monthly survivors' pension benefit, VA must subtract the appellant's annual countable income for pension purposes from the maximum annual pension rate. 38 C.F.R. § 3.21. By a September 2020 determination, basic eligibility for survivors' pension benefits was granted to the Appellant, subject to the income limitations and calculations cited above. That decision provided for an original award of $455.00, payment effective November 1, 2019; adjusted award of $452.00, payment effective January 1, 2020; and $407.00, payment effective November 1, 2020. Survivors' pension benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 C.F.R. § 3.3(b)(4). 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). 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). The MAPR for a surviving spouse with no dependents at the aid and attendance rate was $14,509.00, effective December 1, 2018. At the time of her October 2019 claim, the Appellant reported receiving income from Social Security Administration (SSA) benefits in the amount of $1,385.00 per month, as well as $400.00 per month in retirement pension. A May 2020 SSA Inquiry confirms that monthly benefits were paid at a rate of $1,385.00 per month (or $16,620.00 annually), effective December 1, 2018. Moreover, an August 2020 VA Form 21P-0969, Income and Asset Statement in Support of Claim for Pension or Parents' Dependency and Indemnity Compensation, clarified the Appellant received $459.29 per month (or $5,511.48 annually) in retirement pension. Accordingly, the Appellant had an annualized income of $22,131.00 (when rounded to the nearest dollar). Turning to unreimbursed medical expenses, while the Appellant identified paying $250.00 per week (or $13,000.00 annually) to her daughter, M. F., for caregiver services, the AOJ attributed $13,500.00 to her unreimbursed medical expenses. As this finding is more favorable to the Appellant, the Board will not disturb this finding. She also reported traveling 48 miles roundtrip for visits to the Scoville Medical Group, as well as 18 miles roundtrip for visits to Access Physical Therapy. The cost of transportation for medical purposes by privately owned vehicle, including mileage, parking, and tolls, is a medical expense. For transportation in a privately owned vehicle, VA limits the deductible mileage rate to the current privately owned vehicle mileage reimbursement rate specified by the United States General Services Administration (GSA). 38 C.F.R. § 3.278(c)(4). GSA's privately owned vehicle mileage reimbursement rate is $0.58 per mile, effective January 1, 2019. See https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived (last accessed July 8, 2021). Accordingly, using the established $0.58 mileage reimbursement rate, unreimbursed medical expenses for travel were $38.28. The Appellant identified paying approximately $55,000.00 in premiums and co-pays in 2018 and 2019 for injuries related to a fall. The Board notes that a portion of the expenses predated the annualization period in the Appellant's claim. Additionally, the remaining expenses are not itemized nor reported with sufficient specificity, and it is not clear what portion of them were unreimbursed. Thus, the Board is unable to consider these expenses in calculating the Appellant's income. When reduced by five percent of the MAPR (or $453.00), the allowable medical expenses are $13,085.28. Accordingly, the Appellant's countable annual income was $9,046.00 (when rounded to the nearest dollar). Because the applicable MAPR of $14,509.00 exceeded the Appellant's annualized income of $9,046.00 by $5,463.00, the Board finds that the Appellant was correctly paid a monthly pension of $455.00, effective November 1, 2019; thus, no increase in the rate of payment from November 1, 2019 to December 31, 2019 is warranted. The MAPR for a surviving spouse with no dependents at the aid and attendance rate was $14,742.00, effective December 1, 2019. As to the period from January 1, 2020 to October 31, 2020, a May 2020 SSA Inquiry confirms that monthly benefits were paid at a rate of $1,407.00 per month (or $16,884.00 annually), effective December 1, 2019. As noted above, the Appellant received $459.29 per month (or $5,511.48 annually) in retirement pension. Accordingly, the Appellant had an annualized income of $22,395.00 (when rounded to the nearest dollar). Turning to unreimbursed medical expenses, while the Appellant identified paying $250.00 per week (or $13,000.00 annually) to her daughter, M. F., for caregiver services, the AOJ attributed $13,500.00 to her unreimbursed medical expenses. As this finding is more favorable to the Appellant, the Board will not disturb this finding. She also reported traveling 48 miles roundtrip for visits to the Scoville Medical Group, as well as 18 miles roundtrip for visits to Access Physical Therapy. GSA's privately owned vehicle mileage reimbursement rate is $0.575 per mile, effective January 1, 2020. See https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-mileage-rates/pov-mileage-rates-archived (last accessed July 8, 2021). Accordingly, using the established $0.575 mileage reimbursement rate, unreimbursed medical expenses for travel were $37.95. The Appellant identified paying approximately $3,000.00 for medication, as well as $7,000.00 for medical devices and equipment. However, the expenses are not itemized nor reported with sufficient specificity, and it is not clear what portion of them were unreimbursed. As such, the Board is unable to consider these expenses in calculating the Appellant's income. When reduced by five percent of the MAPR (or $453.00), the allowable medical expenses are $13,084.95. Accordingly, the Appellant's countable annual income was $9,310.00 (when rounded to the nearest dollar). Because the applicable MAPR of $14,742.00 exceeded the Appellant's annualized income of $9,310.00 by $5,432.00, the Board finds that the Appellant was correctly paid a monthly pension of $452.00 from January 1, 2020 to October 31, 2020; thus, no increase in the rate of payment from January 1, 2020 to October 31, 2020 is warranted. As to the period beginning November 1, 2020, a May 2020 SSA Inquiry confirms that monthly benefits were paid at a rate of $1,407.00 per month (or $16,884.00 annually), effective December 1, 2019. As noted above, the Appellant received $459.29 per month (or $5,511.48 annually) in retirement pension. Accordingly, the Appellant had an annualized income of $22,395.00 (when rounded to the nearest dollar). Turning to unreimbursed medical expenses, the Appellant identified paying $250.00 per week (or $13,000.00 annually) to her daughter, M. F., for caregiver services. When reduced by five percent of the MAPR (or $453.00), the allowable medical expenses are $12,547.00. Accordingly, the Appellant's countable annual income was $9,848.00. (Continued on the next page) Because the applicable MAPR of $14,742.00 exceeded the Appellant's annualized income of $9,848.00 by $4,894.00, the Board finds that the Appellant was correctly paid a monthly pension of $407.00 from November 1, 2020; thus, no increase in the rate of payment from November 1, 2020 is warranted. The Board acknowledges the Appellant's contentions that she does not have enough income to cover her expenses. While the Board is sympathetic to her financial situation, a review of the evidence shows that the Appellant's survivors' pension rate has been properly calculated throughout the appeal period. Accordingly, the claim of entitlement to an increased rate of payment for survivors' pension benefits based on the need of aid and attendance must be denied. The Board regrets that it cannot render a favorable decision in this matter. However, the Board is bound by the law and this decision is dictated by the relevant statute and regulations. The Board is without authority to grant benefits on any other basis. See 38 U.S.C. § 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.