Citation Nr: 21013860 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-52 730 DATE: March 10, 2021 ORDER Entitlement to survivor pension benefits from December 1, 2016, is denied. FINDING OF FACT The Appellant failed to submit the specific requested information regarding her income and assets on forms prescribed by the Secretary; the Board is unable to determine whether she meets the income-eligibility test for survivor pension benefits from December 1, 2016. CONCLUSION OF LAW The denial of survivor pension benefits from December 1, 2016, was proper. 38 U.S.C. § 1541 (2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1943 to August 1943. The Veteran passed away in March 2006 and the Appellant is his surviving spouse. Death pension benefits are available for a surviving spouse pursuant to 38 U.S.C. § 1541 (a) and its implementing regulation 38 C.F.R. § 3.3 (b)(4). A surviving spouse is entitled to such benefits if two criteria are met. First, the veteran had qualifying wartime service as defined in 38 C.F.R. § 3.3 (a)(3)(i), (ii), and (iii). Second, 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 applicable MAPR specified in 38 C.F.R. §§ 3.23 and 3.24. In this case, the record reflects that the Veteran meets the qualifying service criteria as defined in § 3.3(a)(3)(i) based on more than 90 days of active service during World War II.  Entitlement is established if, among other things, the Appellant’s income is not in excess of the applicable MAPR, and specified at 38 C.F.R. § 3.23, as changed periodically, and reported in the Federal Register. See 38 U.S.C. § 1521. The maximum pension rate is reduced dollar for dollar by the amount of the countable income of the Appellant and any dependent.  38 U.S.C. § 1521; 38 C.F.R. § 3.23 (d).  In determining income for this purpose, payments of any kind from any source 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. The MAPRs are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. Medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, 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)(1)(iii).  Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); VA pension benefits; payments under Chapter 15 of Title 38, United States Code, including accrued pension benefits; reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner). 38 C.F.R. § 3.272.  The Appellant applied for survivor pension in May 2016.  In support of her claim, in pertinent part, she submitted various forms. VA Form 21P-8416, Medical Expense Report, was crossed out with no expenses listed. VA Form 21-534EZ listed $600 in Social Security Administration (SSA) income. In July 2016, the regional office (RO) asked that she submit information regarding her annual income and to complete a medical expense report. She did not submit any additional information. Her claim was denied in September 2016 as her income, after Medicare premiums were deducted, exceeded the maximum annual death pension limit. In an October 2016 statement, the Appellant indicated that she had other expenses in addition to Medicare that include life insurance and property taxes. However, as the Appellant has been notified on more than one occasion, those expenses are not proper deductions for purposes of calculating income for survivor pension benefits. In an October 2016 VA Form 21P-0518-1, Improved Pension Eligibility Verification Report, she again reported SSA income, this time in the amount of $800. An October 2016 Medical Expense report lists transportation costs for 2015-2016; however, this was considered in the award for benefits from May 2016 to November 30, 2016. This form did not contain information from December 1, 2016. Additional medical expense reports filed in December 2016 contain expenses for 2013, which are outside the applicable period under consideration. In November 2019, the Board determined that the Appellant was entitled to nonservice-connected death pension from May 25, 2016, through November 30, 2016. The Board then remanded the issue of entitlement to such benefits from December 1, 2016, for further development. In pertinent part, the Board determined that additional information was needed to calculate the Appellant’s income and expenses from December 1, 2016. In February 2020, the Appellant submitted some medical expense reports for expenses incurred in 2019; however, many were undated and had question marks as to the amounts paid and/or dates incurred. Thus, the forms were incomplete. Information received in February 2020 from SSA revealed she was received $898.60, before her Medicare deduction of $144.60. Her monthly benefit was $754. In April 2020, the RO once again sent the Appellant a letter and asked that she complete VA Form 21-534EZ showing her annual income and net worth from December 1, 2016, to December 31, 2016; January 1, 2017, through December 31, 2017; January 1, 2018, through December 31, 2018; January 1, 2019, through December 31, 2019, and from January 1, 2020, through the present. She was further informed that the medical expense reports she submitted were not fully complete. She was asked to complete a separate report for each period indicated above. Moreover, she was notified that while she could submit projected medical expenses for recurring and predictable expenses like medical insurance and Medicare premiums, medications and doctors’ visits were not subject to advance consideration as they were not predictable. In September 2020 the Board remanded the issue once again to clarify whether SSA benefits were the Appellant’s only source of income. The matter was also remanded for the Appellant to provide specific information regarding the date and amount of unreimbursed medical expenses she incurred. She was informed that without accurate expense information VA could not properly calculate benefit eligibility. In September 2020, the RO again asked the Appellant to submit eligibility verification reports for the periods delineated above. She was also notified that prior medical expense reports were not fully completed and must be resubmitted correctly. Notably, she was to instructed to itemize her expenses by listing the purpose, amount paid, specific date paid, provider, and for whom paid. She was informed that she could not approximate the amounts paid but must provide an exact amount. In November 2020, she submitted an Improved Pension Eligibility listing $754 as SSA income. She also submitted Medical Expense Reports that were blank, one that listed $144.60, in Medicare expenses, and one that had transportation costs for her primary doctor but had a “?” as to date traveled. In a November 2020 statement, the Appellant indicated that her income for the past year was $754 and that she had already provided the necessary medical expense information. In October 2020, she stated that she had no additional information or evidence to submit in support of her claim. Information from SSA revealed the Appellant had been in receipt of income as follows: $843 December 2016; $860 December 2017; $884.50 December 2018; $898.60 December 2019; and $909.50 December 2020. A December 2020 Deferred Rating decision notes that verification reports of record did not indicate a specific year and that on each report the Appellant reported $754 per month for SSA, which conflicted with SSA matching records. The RO also noted that the remaining sections for income and net worth were blank. The RO further determined that the medical expense reports were incomplete as they had question marks, claimed the same Medicare amount on each form, and were not dated for the specific year. In December 2020, the RO sent the Appellant a final letter and request for information. She was notified that her eligibility verification reports were incomplete, undated, and didn’t match information from SSA. She was asked to complete the income form for each year and that each form should list the correct amounts of income, including SSA, and that she was not to leave net worth or income questions blank, but instead write zero or none if not applicable. She was asked to submit her SSA statements for each year from 2016 to 2021. She was additionally notified that her medical expense reports submitted in November 2020 were substantially incomplete. She was asked to provide an expense report for each calendar year from 2016 to the present. These forms were to list the specific date range for each calendar year, e.g. January 1, 2017, through December 31, 2017. She was asked to ensure the medical expense, the amount paid, the date paid, the name of the provider, and for whom paid was listed. Finally, she was informed that if she failed to provide the fully completed eligibility verification reports, medical expense reports, and SSA benefit statements, it would result in a denial of her claim. To date, she had not responded. As the Appellant failed to submit the specific information requested clarifying her income and expenses on the forms prescribed by the Secretary, the Board is unable to determine whether she meets the income-eligibility test for survivor benefits from December 1, 2016.    Thus, the Board concludes that the denial of survivor pension benefits was warranted. The preponderance of the evidence is against the Appellant’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and the issue on appeal must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).    V. CHIAPPETTA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.