Citation Nr: A21020128 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 211007-190058 DATE: December 16, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC), including based on service connection for the cause of the Veteran's death, is denied. Entitlement to accrued benefits is denied. Entitlement to survivors pension benefits is denied. FINDINGS OF FACT 1. The Veteran did not have any service-connected disabilities. 2. At the time of the Veteran's death, there were no pending claims or Veterans Affairs (VA) benefits that were otherwise due or payable. 3. The Appellant's countable income exceeds the maximum annual pension rate for death pension purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC are not met. 38 U.S.C. §§ 1110, 1131, 1310, 1318; 38 C.F.R. § 3.312. 2. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.1000. 3. The criteria 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 CONCLUSIONS The Veteran passed away in September 2002, and the Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a December 2020 rating decision by a VA Regional Office (RO) and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA) system, applies. See 38 C.F.R. § 3.2400(a)(1). In the VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Although the Appellant explicitly claimed survivors pension, only, in her November 2020 claim application, the AOJ determined that DIC and accrued benefits were reasonably within the scope of that claim. 38 C.F.R. § 3.151(c). The Board, in turn, is liberally construing the Appellant's VA Form 10182 to express disagreement with all of the issues decided in the AOJ's December 2020 notice letter, in which the AOJ characterized its decision on the above-referenced issues collectively as a "decision on [the Appellant's] claim for Veterans Pension benefits." 38 C.F.R. § 20.202(a). DIC A veteran's surviving spouse is eligible for DIC benefits when a qualifying veteran dies from a service-connected disability or for a continuously rated total service-connected disability for a period of 10 or more years immediately preceding death. 38 U.S.C. §§ 1310, 1318; 38 C.F.R. § 3.5(a). For death due to a service-connected disability, the disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). It is the principal cause if it was "the immediate or underlying cause of death or was etiologically related" to the death. 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). Here, the Veteran did not have a service-connected disability at the time of his death, nor has the Appellant otherwise asserted that his death was related to service. Accordingly, entitlement to DIC, including based on service connection for the cause of the Veteran's death, is denied. Accrued Benefits An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. In this case, the evidence of record does not reflect, nor does the appellant contend, that the Veteran had any pending claims for VA benefits, either before the AOJ or the Board, at the time of his death in September 2002. Also, the Veteran was not in receipt of any VA benefits and was not owed any outstanding benefits prior to his death. Therefore, there is no legal basis for awarding the Appellant accrued benefits, and the claim must be denied. Survivors Pension Improved death pension is a benefit payable to a veteran's surviving spouse because 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 his or her 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 and 3.24. See 38 C.F.R. § 3.3(b)(4). The instant appeal turns on the question of whether the Appellant meets the income requirement. 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). 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 (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound). 38 C.F.R. § 3.272(g)(2)(iii). The MAPR is increased periodically. 38 U.S.C. §§ 1541; 5312; 38 C.F.R. § 3.21; see also Survivors Pension rates, https://www.va.gov/pension/survivors-pension-rates/. The Appellant filed this claim in November 2020. As applicable here, the MAPR for a surviving spouse without the need of aid and attendance and without dependents was $9,224 from December 1, 2019 through November 30, 2020 and $9,344 beginning December 1, 2020. The associated five percent of MAPR deductions during those same periods were $461 and $467, respectively. See 38 C.F.R. § 3.272(g)(2)(iii). The record reflects that the Appellant's income consists solely of the monthly SSA benefits she receives. Specifically, in her November 2020 claim application, the Appellant reported monthly SSA income of $1,128.59. This amount is less than the amount of SSA income documented in a December 2020 SSA Inquiry. See December 2, 2020 SSA Profile and Benefit Data. Even using the Appellant's lower reported income, however, her income exceeds the applicable MAPRs described above. The Appellant has also reported unreimbursed medical expenses, which, as explained above, may be excluded from countable income. However, the only medical expenses reported were monthly insurance premiums deducted by SSA in the amount of $148.50. The annual total of these premiums, less the MAPR deduction, still does not reduce the Appellant's income below the applicable MAPRs. In summary, the currently available evidence reflects that the Appellant has excessive household income to qualify for pension benefits and, to date, exclusions sufficient to reduce that income below the applicable MAPRs have not been demonstrated. Accordingly, the Board must deny the claim. The Appellant is encouraged to reapply for pension benefits in the future if her financial circumstances change. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.