Citation Nr: 21022971 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-12 375A DATE: April 19, 2021 ORDER Payment of survivor pension benefits since October 2014 is denied. FINDING OF FACT Since October 2014, the appellant’s countable income has exceeded the applicable maximum annual pension rate (MAPR). CONCLUSION OF LAW The criteria for entitlement to payment of survivor pension benefits since October 2014 are not met. 38 U.S.C. §§ 1503, 1541; 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 May 1959 to May 1963, from October 1963 to August 1966, from October 1967 to February 1968, and from September 1983 to October 1990. He died in May 2014 and the appellant is his surviving spouse. The issue was remanded by the Board for additional development in August 2019 and October 2020. Thereafter, in November 2020, the Pension Center granted survivor pension benefits from May 2014 to September 2014, and denied pension benefits thereafter. Thus, the issue on appeal is now entitlement to survivor pension benefits since October 2014. Turning to the relevant laws and regulations, basic entitlement to a survivor pension exists if, among other things, the claimant’s income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 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, 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, 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. Further, expenses of last illness and burial (to the extent such burial expenses are not reimbursed under chapter 23 of title 38 U.S.C.) paid by a surviving spouse for a veteran will be deducted from the income of the surviving spouse during the calendar year following that in which death occurred from annual income for the 12-month annualization period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant’s advantage. 38 C.F.R. § 3.272(h). Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. Id. 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). The appellant filed a claim for a survivor pension in October 2014, within one year of the Veteran’s death. The claim form indicates annual income from wages of $15,015, but does not report any income from the SSA. In November 2014, information from the SSA was associated with the file that showed the appellant was paid $1,181 in September 2014, which included a monthly benefit of $951 effective August 2014. In a January 2015 decision, a VA Pension Center denied the claim due to income in excess of the applicable MAPR. In a February 2015 notice of disagreement (NOD), the appellant reported income from one job of $9,880 per year and from a second job of $1,014 per year. In November 2015, the appellant submitted a new pension claim. She reported earning $8,863 in wages, but did not report receiving SSA income. She also reported paying $7,000 for the Veteran’s burial expenses in 2014. She also submitted a form indicating $1,542.20 of unreimbursed medical expenses for the year 2015. During the April 2019 Board hearing, the appellant reported working two jobs and receiving SSA income. Later in April 2019, she submitted income statements from the SSA and earning statements from employment for the years 2014 to 2018. In February 2020, SSA profile and benefit information was associated with the file that shows the appellant’s SSA income amounts from August 2014 through November 2020. As noted above, in a November 2020 decision, the Pension Center awarded the appellant pension benefits for June 2014 through September 2014. In a December 2020 supplemental statement of the case (SSOC), the Pension Center explained the calculation of the pension benefits and that the benefits were terminated effective October 1, 2014 due to income in excess of the MAPR. The Board finds that survivor pension benefits are not warranted since October 2014 because the appellant’s countable income exceeded the applicable MAPRs. In this regard, the applicable MAPR from December 2013 through November 2014 is $8,485. For October 2014, the documented annualized income consisted of SSA benefits of $11,412 plus $8,863.76 of earned wages, for a total income of $20,275.76. The appellant reported paying $7,000 for the Veteran’s burial; however, subtracting the burial expense from the documented income leaves $13,275, which was in excess of the applicable MAPR. For January 2015, the appellant’s documented annualized income consisted of SSA benefits of $11,604 plus earned wages for the year of $10,786.91, for a total income of $22,390.91. She reported unreimbursed medical expenses of $1,542.20 for the year 2015. After reducing the claimed medical expenses by $564 (5 percent of the applicable MAPR), results in a total unreimbursed medical expense deduction of $978.20. The total income minus the medical expense deduction and the $7,000 burial expense leaves an income total of $14,412.71, which is in excess of the applicable MAPR of $8,630. For January 2016, the appellant’s documented annualized income consisted of SSA benefits of $11,604 plus earned wages for the year of $9,281.08, for a total income of $20,885.08. She has not reported any unreimbursed medical expenses for 2016 and the Veteran’s burial expense was no longer subtracted from income because it was more than one year since the expense was paid. See 38 C.F.R. § 3.272(h). Thus, the appellant’s income was in excess of the applicable MAPR of $8,630. For January 2017, the appellant’s documented annualized income consisted of SSA benefits of $11,640 plus earned wages for the year of $9,474.43, for a total income of $21,114.43. She has not reported any unreimbursed medical expenses for 2017. Thus, the appellant’s income was in excess of the applicable MAPR of $8,656. For January 2018, the appellant’s documented annualized income consisted of SSA benefits of $11,868 plus earned wages for the year of $8,884.93, for a total income of $20,752.93. She did not report any unreimbursed medical expenses for 2018. Thus, the appellant’s income was in excess of the applicable MAPR of $8,830. For January 2019, the appellant’s documented annualized income consisted of SSA benefits of $12,204. She did not report any earned wages or unreimbursed medical expenses for 2019. However, even without wages, the annualized SSA income alone was in excess of the applicable MAPR of $9,078. For January 2020, the appellant’s documented annualized income consisted of SSA benefits of $12,396. She did not report any earned wages or unreimbursed medical expenses for 2020. However, even without wages, the annualized SSA income alone was in excess of the applicable MAPR of $9,224. Thus, the Board finds that, since October 2014, the appellant’s countable income has exceeded the applicable MAPR. Therefore, the preponderance of the evidence shows that entitlement to a survivor’s pension is not warranted. The Board is bound by the law and cannot grant pension benefits where the claimant’s income exceeds the applicable MAPR. L. HOWELL 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.