Citation Nr: 21009714 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-11 341A DATE: February 23, 2021 ORDER From January 1, 2008 to August 31, 2008, entitlement to nonservice-connected death pension is granted. From September 1, 2008 to December 31, 2009, entitlement to nonservice-connected death pension is denied. From January 1, 2009 to February 1, 2009, entitlement to nonservice-connected death pension is granted. FINDINGS OF FACT 1. From January 1, 2008, to August 31, 2008, the Appellant’s countable income did not exceed the applicable maximum annual pension rate (MAPR) for a surviving spouse with one dependent. 2. From September 1, 2008 to December 31, 2009, the Appellant’s countable income exceeded the applicable MAPR. 3. From January 1, 2009 to February 1, 2009, the Appellant’s countable income did not exceed the applicable MAPR. CONCLUSIONS OF LAW 1. From January 1, 2008, to August 31, 2008, the criteria for entitlement to nonservice-connected death pension benefits have been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. 2. From September 1, 2008 to December 31, 2009, the criteria for entitlement to nonservice-connected death 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. 3. From January 1, 2009 to February 1, 2009, the criteria for entitlement to nonservice-connected death pension benefits have 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 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2008 and March 2010 decisions. The Appellant presented testimony before the Board in March 2014. The hearing transcript is of record. The Board remanded the appeal in January 2018, and death pension was subsequently granted in part. In September 2020, the Board denied entitlement to nonservice-connected death pension benefits for the remaining period on appeal from January 1, 2010, to February 1, 2012 and remanded the appeal for death pension from January 1, 2008, to February 1, 2009. The Board finds that the RO substantially complied with the Board’s remand order by providing an audit of the income and expense information used to assess her countable income, and the Board may proceed with a decision. The Board notes that in November 2020, the RO proposed to terminate VA pension effective December 1, 2008 because a data match indicated that the Appellant was a Veteran receiving VA compensation benefits. However, because a final decision to terminate benefits has not yet been made, and because the appeal period at issue begins prior to December 1, 2008, the Board will continue to consider the Appellant’s claim based on countable income. Entitlement to nonservice-connected death pension benefits from January 1, 2008, to February 1, 2009 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(a)(3). The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 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, 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. 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). The record shows that the Appellant has one dependent daughter whom she identified as being seriously disabled on her Application for Pension. In a July 2001 rating decision, permanent incapacity for self-support was established for the Veteran and Appellant’s daughter. Thus, the Board will consider the MAPR for a surviving spouse with one dependent. The MAPR for a surviving spouse with one dependent effective January 1, 2008 was $9,815.00. The MAPR was increased to $10,385.00 effective December 1, 2008. In a July 2009 Improved Pension Eligibility Verification Report (EVR), the Appellant identified receiving income in the total amount of $11,113.00 in 2008 and $8,039.00 for 2009. A copy of the same EVR was resubmitted by the Appellant in October 2018. In October 2018, the appellant submitted W-2s for 2008, showing that she earned $2,264.87 and $3,116.95 caring for two individuals as an in-home care provider, and $1,779.00 from Fresno Area Vocational Options for a total of $6,561.00. However, she also attached pay stubs showing payment for care for a third individual in 2008. As the W-2s did not represent the Appellant’s total taxable income, the Board has used the annual amounts reported in the July 2009 and October 2019 EVRs. While the AOJ identified the Appellant as receiving monthly wages in the amount of $26,658.00 and last expenses in the amount of $9,888.00, this was inconsistent with the evidence of record and the AOJ did not explain the basis for these findings. A more recent November 2020 letter, which proposed to terminate pension benefit payments based the Appellant’s receipt of VA compensation, identified 2008 and 2009 wages in the amounts of $11,113.00 in 2008 and $8,039.00 for 2009, consistent with the 2008 EVRs. Thus, the Board finds that the Appellant had an annualized income of $11,113.00 in 2008 and $8,039.00 for 2009. VA also allows for the deduction of last expenses from countable income for a period of one-year. The Board finds that while the AOJ deducted $9,888.00 in last expenses, the Appellant only identified funeral and burial costs as a last expense in conjunction with her claim. In August 2007, the Appellant submitted receipts for cremation costs in the amounts of $1,736.00 and $750.00 and she submitted a billing statement. She was awarded $600.00 in funeral and cemetery costs in September 2007. Thus, the remaining balance in the amount of $1,886.00 may be counted as a last expense to reduce income. The Board notes that in March 2014 hearing testimony, the Appellant reported that the Veteran had received care provided by the appellant through the County of Fresno, California In-Home Supportive Services Program (IHHS). As IHHS paid the Appellant to provide for the Veteran’s care, it is not countable as a last expense as the expense was not paid for by the Appellant or the Veteran. Thus, she had a countable income of $9,227.00 from January 1, 2008. From September 1, 2008, last expenses were no longer countable and the Appellant had a countable income of $11,113.00. From January 1, 2009, she had a countable income of $8,039.00. No unreimbursed medical expenses were reported by the Appellant for 2008, and a Medical Expense Report for 2008, received in January 2010, was blank. A January 2010 Medical Expense Report indicates that the Appellant paid $50.00 for medications in 2009. Reported medical expenses for 2009 did not exceed five percent of the MAPR of $10,385.00 and, thus, cannot be counted to reduce income. The Board finds that the Appellant’s countable income of $9,227.00 did not exceed the MAPR of $9,815.00, therefore, from January 1, 2008 to August 31, 2008, countable income was not a bar to the receipt of pension benefits. From September 1, 2008 to December 31, 2008, the Appellant’s countable income of $11,113.00 exceeded the MAPRs of $9,815.00 and $10,385.00, respectively. Thus, payment of pension benefits is not warranted for that time period. From January 1, 2009, the Appellant’s countable income decreased to $8,039.00 and did not exceed the MAPR of $10,385. From January 1, 2009 to February 1, 2009, countable income was not a bar to the receipt of pension benefits, and entitlement to death pension is granted. The Board notes, however, that the monthly rate of pension is be computed by reducing the applicable maximum pension rate by countable income. Moreover, if the appellant was awarded VA compensation in excess of her pension entitlement, pension benefits will be terminated, and the greater benefit will be awarded. See 38 C.F.R. § 3.151 (a) (a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise). Kerri Millikan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.