Citation Nr: A21020494 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 211027-193767 DATE: December 23, 2021 ORDER Entitlement to special monthly pension is denied. Entitlement to VA survivor's pension benefits is denied. FINDINGS OF FACT 1. The preponderance of the evidence fails to show that the appellant is in need of the regular aid and attendance of another person or is housebound. 2. The appellant's countable income exceeds the applicable maximum annual pension rate. CONCLUSIONS OF LAW 1. The criteria for special monthly pension based on the need for regular aid and attendance of another person or because of being permanently housebound are not met. 38 U.S.C. §§ 1502, 1541, 5307; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.351, 3.352, 4.3. 2. The criteria for entitlement to payment of VA survivor's pension benefits have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from July 1957 to July 1977. The Veteran died in November 2020. The appellant is his surviving spouse. The rating decision on appeal was issued in August 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the October 2021 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 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Entitlement to special monthly pension A surviving spouse who is receiving pension benefits may receive it at a higher rate if he or she is in need of "regular aid and attendance" or is housebound. 38 U.S.C. § 1541(d) and (e). Such a rate is known as special monthly pension. The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). The criteria for entitlement to special monthly pension based on the need for regular aid and attendance include consideration of (1) whether the veteran is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) the evidence establishes a "factual need" for regular aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). The following criteria should be considered when determining if there is a "factual need" for regular aid and attendance: Inability unable to dress or undress him or herself; Inability to keep him or herself ordinarily clean and presentable; Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; Inability to feed him or herself through loss of coordination of upper extremities or through extreme weakness; Inability to attend to the wants of nature; and Physical or mental incapacity which requires assistance on a regular basis to protect him or her from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not necessary that all these disabling conditions be found to exist before a favorable rating may be made. The particular personal function that the surviving spouse is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the surviving spouse is so helpless as to need regular aid and attendance, not that there be constant need. Id. However, it may be logically inferred from the governing regulatory criteria that eligibility to receive additional VA disability benefits requires that at least one of the enumerated factors be present. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). If a surviving spouse is not in need of regular aid and attendance, special monthly pension may still be warranted if he or she is permanently housebound. 38 U.S.C. § 1541(e)(1). The requirement of being "permanently housebound" shall be met when the surviving spouse is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout his or her lifetime. 38 U.S.C. § 1541(e)(2). In the present case, the only evidence submitted in support of the appellant's claim for special monthly pension is an examination submitted on VA Form 21-2680. The appellant's physician indicates that she does not need regular aid and attendance of another person to assist her with her activities of daily living. The physician indicated that the appellant was able to feed herself and prepare her own meals, and that she did not need assistance bathing or tending ot other hygiene needs. He also indicates she does not need nursing home care, is not blind, and has the mental capacity to manage her own affairs. The only item the physician checked "Yes" to is that the appellant requires medication management. However, the physician's explanation only states that the appellant is on long-term medications, which fails to explain why the appellant needs the help of another person to manage her medications. Moreover, the physician stated that the appellant has "good memory" and did not list any restrictions of the upper extremities that would require her to need assistance with managing or taking her medications. Moreover, the physician admitted that the appellant is able to complete her activities of daily living and that, although she has lower back pain with radiculopathy to the left sciatic area, she compensates well for this disability. Hence, the Board finds that the evidence fails to establish that the appellant meets the criteria for establishing that she needs aid and attendance of another person because she is blind, in a nursing home or she has a factual need for regular aid and attendance. Furthermore, the appellant's physician stated that the appellant is able to leave her home or immediate premises "as much as she desires." Therefore, the evidence also does not establish that the appellant is permanently housebound. For the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that the appellant is entitled to special monthly pension because of the need for aid and attendance or because of being housebound. Thus, her claim must be denied. 1. Entitlement to VA survivor's pension benefits The appellant is seeking entitlement to VA survivor's pension benefits. In the August 2021 decision on appeal, the AOJ made favorable findings that the Veteran's service meets the requirements for her to qualify for pension benefits. however, the AOJ found that the appellant was not entitled to payment of pension benefits because her income exceeds the maximum annual pension limit set by law for a surviving spouse with no dependents. Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4)(iii). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and 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 a claimant's countable annual income. 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, one-time lump sum payments or similar income, even if waived) shall be included during the 12-month annualization period in which received, except for income specifically excluded. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271(a), 3.272. Gross income received is counted rather than the amount of the payment a beneficiary receives, except where certain expenses are allowed to be deducted (e.g., necessary operating expenses are deductible from business, farm or professional income and medical, legal or other expenses incident to an injury or death or expenses incident to the collection or recovery of the amount of an award or settlement for an injury or death are deductible from compensation received for an injury or death). The amount of recurring and irregular income anticipated or received by a beneficiary shall be added to determine the beneficiary's annual rate of income for a 12-month annualization period commencing at the beginning of the 12-month annualization. 38 C.F.R. § 3.273(d). The amount of nonrecurring income (e.g., an inheritance) received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). For purposes of calculating countable income, total income may be reduced by amounts paid by a claimant for unreimbursed medical expenses that are "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 claimant received no reimbursement, such as from an insurance company. However, medical insurance premiums themselves, including Medicare Plan B premiums deducted from Social Security benefits, may be applied to reduce countable income. For the purpose of determining initial entitlement, or for 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 beneficiary's 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 from the MAPR for that year; then, if a positive amount remains, the rest is divided by 12 to determine the monthly pension benefit. When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount on the effective date of the change, typically December 1st. 38 C.F.R. § 3.273(b)(1). Whenever there is a change in a beneficiary's countable income, VA will repeat the calculation using the beneficiary's new countable income effective the date of the change in the amount of income. 38 C.F.R. § 3.273(b)(2). As to her income, the appellant reported on her April 2021 application that she has monthly income from Social Security benefits of $1,275.00 and from interest income of $5.00. However, a data match with the Social Security Administration (SSA) shows that the appellant's monthly Social Security benefit as of November 2020 was $1,306.60 (which increased to $1,323.50 in December 2020). The appellant was advised in the August 2021 decision letter that the AOJ was using the amounts reported by the SSA and, if this is not correct, to submit a copy of her Social Security award letter by December 31, 2022. VA also advised the appellant that, according to the SSA, she received a lump sum death benefit in the amount of $255.00, which was counted as income from December 1, 2020 until December 1, 2021 and to provide a written statement from the SSA if she disagreed with this. To date, she has not provided any statements from the SSA to indicate that any of these amounts are incorrect. Hence, the Board finds that the appellant's monthly income is $1,306.60 from Social Security benefits and $5.00 from interest income, which totals $15,749.20 annually. The Board also agrees that the $255.00 death benefit the appellant received from the SSA must also be counted for one year. Thus, the appellant's annual income is $16,004.00. The Board acknowledges that the AOJ did not count the appellant's interest income. However, the Board does not see that such income falls into any exclusion in 38 C.F.R. § 3.272 and, therefore, it should be counted. Furthermore, the appellant reported having unreimbursed medical expenses of $1,776.00 annually (or $148.00 monthly) representing payments made for Medicare Part B insurance. The SSA data match in April 2021 shows the appellant was paying $148.50 in 2021. However, according to VA's information regarding Medicare Part B insurance premiums, she would have been paying $144.60 per month in 2020 and $148.50 in 2021. Hence, the AOJ allowed $1,778.00 in unreimbursed medical expenses calculated by taking one month at $144.60 and eleven months at $148.50. The Board finds that the appropriate amount of unreimbursed medical expenses is $1,778.00 as calculated by the AOJ. Only medical expenses in excess of five percent of the MAPR can be deducted from income. Five percent of the applicable MAPR is $461.00. Thus, the allowable amount for unreimbursed medical expenses is $1,317.00. Given the above, the appellant's income for VA purposes is $14,687.00. The applicable MAPR for a surviving spouse with no dependents and without an allowance for aid and attendance or housebound is $9,224.00, so clearly the appellant's income exceeds her MAPR. Hence, the appellant is not entitled to payment of VA survivor's pension benefits due to her excessive income. In making this decision, the Board has considered that, although the appellant did not claim she paid any of the Veteran's final expenses, she submitted receipts in conjunction with her application for burial benefits indicating she made two payments to the funeral home in December 2020 totaling $1,951.46 ($181.46 and $1,770.00) toward the total amount of $11,752.00 (as reported by her on her application for burial benefits). However, the appellant was awarded VA burial benefits of $1,614.00 in April 2021 and, therefore, all but $337.46 were reimbursed. Even of the Board were to allow $337.46 in final expenses to offset the appellant's income, it would not be enough to reduce her income for VA purposes below the applicable MAPR of $9,224.00. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.