Citation Nr: 21025484 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-53 693A DATE: April 28, 2021 ORDER Entitlement to survivors’ pension benefits is denied. FINDING OF FACT The Appellant’s countable income exceeded applicable maximum annual pension rates (MAPR) for a surviving spouse with no dependents. CONCLUSION OF LAW The criteria for entitlement to payment of survivors’ pension benefits based on the Appellant’s countable income have not 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1945 to October 1948, and from November 1949 to February 1953. The Veteran died in July 1998. The Appellant is his surviving spouse. In August 2020, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to survivors’ pension benefits Survivors’ pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) 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 maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 C.F.R. § 3.3(b)(4). Here, the Veteran served in the United States Army from November 1945 to October 1948, and from November 1949 to February 1953. Accordingly, the Veteran served for longer than 90 days during the World War II era, thus meeting the service requirement. The remaining question is whether the Appellant’s income exceeds the MAPR. The MAPR is published in Appendix B of the Veterans Benefits Administration Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.24. 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 claimant. 38 U.S.C. §§ 1503, 1521; 3 8C.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, 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 calculation is repeated 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 MAPR for a surviving spouse with no dependents was $8,630.00, effective December 1, 2014. In her November 2015 VA Form 21-534 (Application for DIC, Death Pension, and/or Accrued Benefits), the Appellant reported receiving income from Social Security Administration (SSA) benefits in the amount of $1,255.00 per month. A May 2016 SSA Inquiry shows that the Appellant received $1,382.90 per month prior to deduction of a supplemental medical insurance (SMI) premium of $104.90 per month. Because unreimbursed medical expenses are only deducted when they are in excess of five percent of the applicable MAPR, the Board has calculated the Appellant’s annualized income based on the benefit amount shown on the SSA benefit statement prior to any SMI premium deduction. Therefore, the Appellant had an annualized income of $16,594.80. Unreimbursed medical expenses included monthly SMI premiums, and totaled $1,258.80. The Appellant also reported paying $5,845.00 for the Veteran’s funeral expenses. See Funeral Bill/Expenses. When reduced by five percent of the MAPR (or $431.00), the allowable medical expenses are $6,672.80. Accordingly, the Appellant’s countable income was $9,922.00, which exceeded the MAPR for a surviving spouse with no dependents. Here, the undisputed facts in this case establish that the Appellant’s countable annual income exceeds the MAPR for a surviving spouse with no dependents. Accordingly, the Board finds that, even approaching this claim as sympathetically as the evidence will allow, it must be denied based on a lack of entitlement under the law. 38 U.S.C. § 1541; 38 C.F.R. § 3.1000(c); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Appellant is informed that if her income decreases, or if she incurs additional unreimbursed medical expenses, she may reapply for survivors’ pension benefits. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tracy O. Joseph, 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.