Citation Nr: 21010767 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-01 488 DATE: February 25, 2021 ORDER Entitlement to a death pension is denied. FINDING OF FACT The Appellant’s annual countable income exceeds the maximum allowed pension rate. CONCLUSION OF LAW The criteria for death pension have not been met. 38 U.S.C. §§ 101, 1501, 1503, 1521, 1541, 5107; 38 C.F.R. §§ 3.2, 3.3, 3.21, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1967 to December 1968. He died in October 1988; the Appellant contends that she is his surviving spouse. She requested a hearing before the Board but did not show for the hearing scheduled in October 2019. In December 2016, the RO denied the Appellant’s claim on the basis that she was not the Veteran’s surviving spouse. The Appellant appealed this determination in February 2017, and the RO issued a Statement of the Case in July 2017 denying the Appellant’s claim on the basis that her income is excessive for pension purposes. The Board thus remanded the claim in October 2020 to provide the Appellant with proper notice and an opportunity to submit relevant evidence. VA sent the Appellant adequate notice and a request for evidence in November 2020, and the Appellant did not respond. Thus, further remand is unnecessary. The Appellant’s countable income exceeds the maximum annual pension rate (MAPR), which renders her ineligible for death pension. A surviving spouse will be paid the maximum rate of death pension, reduced by the amount of countable income. 38 U.S.C. § 1541; 38 C.F.R. § 3.23. If the surviving spouse’s income exceeds the maximum rate of pension, he or she is ineligible to receive death pension payments. In determining income for this purpose, payments of any kind from any source, including salary, retirement or annuity payments, or similar income, which has been waived, are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Medical expenses in excess of five percent of the maximum income rate allowable, which have been paid, may be excluded from an individual’s income for the same 12-month annualization period, to the extent they were paid. 38 C.F.R. § 3.272(g). SSA records document that the Appellant has received a monthly SSA payment equal to or greater than $1160.90 since September 2016, the date the claim on appeal was received. Annualized, the monthly benefit totals $13,930.80. The Appellant also reported $566.00 per month in retirement benefits, which equals $6,792.00 annually. This equals $20,722.80 in income effective September 2016. At that time, the Appellant was being charged $104.90 per month for Medicare premiums ($1,258.80 annually). Because only the medical expenses in excess of five percent of the maximum income rate allowable may be excluded from an individual’s income, this reduces the Appellant’s income by $827.00. These expenses are then subtracted from the Appellant’s total income in order to identify her countable income. 38 C.F.R. § 3.272. Less than whole dollar figures are decreased to the nearest whole dollar figure. 38 U.S.C. § 1503(b). Once this operation is performed, the Appellant’s countable income equals $19,895.00. In September 2016, maximum annual pension rate for a surviving spouse with no dependents was $8,630.00. See 38 C.F.R. § 3.23 (2015). Thus, the Appellant’s total countable income exceeds VA’s limits by $11,265.00. The Appellant alleged in her Form 9 that she has non-reimbursable medical expenses that would further decrease her countable income, but she has not provided any documentation for these expenses despite VA’s request for such evidence in November 2020. Accordingly, they cannot be subtracted from her income. Furthermore, in subsequent years, the Appellant’s SSA benefit has increased. Consequently, the record indicates that the Appellant’s income would continue to exceed the MAPR in subsequent years. For these reasons, the Board finds that the Appellant is not entitled to a death pension, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, 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.