Citation Nr: 21009720 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-34 656 DATE: February 23, 2021 ORDER A higher rate for survivor pension benefits is denied.   FINDING OF FACT The appellant’s survivor pension rate is properly calculated. CONCLUSION OF LAW The criteria for a higher survivor pension rate are not met. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1946 to April 1948. He died in November 1998 and the appellant is his surviving spouse. The case is on appeal from a January 2013 decision. In an October 2020 decision, the Board found that the appellant’s dispute regarding the validity of debt owed from overpayment was moot due to waiver of the debt in May 2020 RO decision and remanded the claim on appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Survivor pension benefit rate. Legal Criteria 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. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR 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 the countable annual income of the surviving spouse. 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 and 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). Analysis The appellant is seeking a higher rate for survivor pension benefits. The file includes the appellant’s SSA income and monthly Medicare premiums for the period on appeal. In February 2013, the appellant submitted medical expenses, but did not indicate when the expenses were incurred. In an October 2020 decision, the Board requested the RO notify the Veteran of the need to submit a complete report of income, net worth, and medical expenses for the appeal period. The RO requested this information later in October 2020, however, the appellant did not submit any additional information. Therefore, the appellant’s pension benefits are based on the evidence of record, including periodic statements allowing for updating benefits based on her monthly SSA income and Medicare premiums. The Board finds that the appellant’s pension rate has been calculated correctly throughout the appeal period. From March 2010 to November 2011, the appellant received $7,287.60 in annualized SSA income and paid $1,326 in annualized Medicare premiums. The applicable MAPR was $7,933. After reducing the Medicare premiums by $396 (5 percent of the applicable MAPR), the payable survivor pension rate was $131 per month, which was the rate paid to the appellant. For December 2011, the appellant received $7,546.80 in annualized SSA income and paid $1,326 in annualized Medicare premiums. The applicable MAPR was $8,219. After reducing the Medicare premiums by $410 (5 percent of the applicable MAPR), the payable survivor pension rate was $132 per month, which was the rate paid to the appellant. From January 2012 to November 2012, the appellant received $7,546.80 in annualized SSA income and paid $1,198 in annualized Medicare premiums. The applicable MAPR was $8,219. After reducing the Medicare premiums by $410 (5 percent of the applicable MAPR), the payable survivor pension rate was $121 per month, which was the rate paid to the appellant. From December 2012 to January 2013, the appellant received $7,666.80 in annualized SSA income and paid $1,198 in annualized Medicare premiums. The applicable MAPR was $8,359. After reducing the Medicare premiums by $417 (5 percent of the applicable MAPR), the payable survivor pension rate was $122 per month, which was the rate paid to the appellant. From February 2013 to November 2013, the appellant received $7,666.80 in annualized SSA income and paid $1,258 in annualized Medicare premiums. The applicable MAPR was $8,359. After reducing the Medicare premiums by $417 (5 percent of the applicable MAPR), the payable survivor pension rate was $127 per month, which was the rate paid to the appellant. From December 2013 to November 2014, the appellant received $7,776 in annualized SSA income and paid $1,258 in annualized Medicare premiums. The applicable MAPR was $8,485. After reducing the Medicare premiums by $424 (5 percent of the applicable MAPR), the payable survivor pension rate was $128 per month, which was the rate paid to the appellant. From December 2014 to November 2016, the appellant received $7,908 in annualized SSA income and paid $1,258 in annualized Medicare premiums. The applicable MAPR was $8,630. After reducing the Medicare premiums by $431 (5 percent of the applicable MAPR), the payable survivor pension rate was $129 per month, which was the rate paid to the appellant. From December 2016 to November 2017, the appellant received $7,920 in annualized SSA income and paid $1,258 in annualized Medicare premiums. The applicable MAPR was $8,656. After reducing the Medicare premiums by $433 (5 percent of the applicable MAPR), the payable survivor pension rate was $130 per month, which was the rate paid to the appellant. From December 2017 to November 2018, the appellant received $8,076 in annualized SSA income and paid $1,258 in annualized Medicare premiums. The applicable MAPR was $8,830. After reducing the Medicare premiums by $442 (5 percent of the applicable MAPR), the payable survivor pension rate was $130 per month, which was the rate paid to the appellant. From December 2018 to November 2019, the appellant received $8,292 in annualized SSA income and paid $1,258 in annualized Medicare premiums. The applicable MAPR was $9,078. After reducing the Medicare premiums by $453 (5 percent of the applicable MAPR), the payable survivor pension rate was $132 per month, which was the rate paid to the appellant. From December 2019 to January 2020, the appellant received $8,424 in annualized SSA income and paid $1,258 in annualized Medicare premiums. The applicable MAPR was $9,224. After reducing the Medicare premiums by $461 (5 percent of the applicable MAPR), the payable survivor pension rate was $133 per month, which was the rate paid to the appellant. (Continued on the next page)   Since February 2020, the appellant received $8,455.20 in annualized SSA income and paid $1,735 in annualized Medicare premiums. The applicable MAPR was $9,224. After reducing the Medicare premiums by $461 (5 percent of the applicable MAPR), the payable survivor pension rate was $170 per month, which was the rate paid to the appellant. Thus, the appellant’s survivor pension rate is properly calculated throughout the appeal period. Therefore, a higher rate for survivor pension benefits is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.