Citation Nr: 21028089 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-06 118 DATE: May 10, 2021 ORDER Entitlement to nonservice-connected survivor pension benefits is denied. FINDING OF FACT The Appellant's annual income exceeds the maximum annual income limit for receipt of payment for nonservice-connected survivor pension benefits for a surviving spouse with no dependents. CONCLUSION OF LAW The criteria for entitlement to payment of survivor pension benefits have not been satisfied. 38 U.S.C. § 1521(a), (b); 38 C.F.R. §§ 3.3 (b)(3), 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1973 to February 1976. The Veteran died in February 2013. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Appellant entitlement to nonservice-connected death pension benefits. It was previously before the Board in September 2020, where it was remanded for additional development. It now returns for further appellate review. The Appellant provided testimony before the undersigned Veterans Law Judge in March 2019. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. Survivor pension benefits are generally available for surviving spouses, as a result of the Veteran's non-service-connected death. 38 U.S.C. § 1541(a). An appellant is entitled to these benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). The Veteran's death certificate indicates that his cause of death was arteriosclerotic cardiovascular disease, a disability for which he was not service-connected at the time of his death. Further, the record reflects that he served at least 90 days, during a period of war, specifically, the Vietnam War era. Thus, the remaining question is whether the Appellant meets the specific income and net worth requirements. Here, however, the RO has denied the Appellant's claim based on this latter requirement, determining that her income exceeds the income requirements. The Appellant's claim was received in March 2013. Based on the following, the Board finds the evidence continues to find that the Appellant has not met the pension income requirements for any year since 2013, and that the claim must be denied on those grounds. Analysis of the net worth requirement is, therefore, unnecessary. Basic entitlement to a death pension award exists if, among other things, the surviving spouse's income is not in excess of the applicable maximum annual pension rate (MAPR) MAPR specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3(b)(4), 3.23(a), (b), (d)(5). The MAPR is reduced by the amount of the countable annual income of the surviving spouse. See 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). In determining the surviving spouse's annual countable family income, payments of any kind from any source shall be counted as income during the twelve-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272(a). Recurring income means income which is received or anticipated in equal amounts and at regular intervals (e.g., weekly, monthly, quarterly, etc.) and which will continue throughout an entire 12-month annualization period, such as gross income from salary or wages. The amount of recurring income for pension purposes will be the amount received or anticipated during a twelve-month annualization period. 38 C.F.R. § 3.271 (a)(1). Whenever there is a change in the maximum annual pension rate, or in the surviving spouse's family income, the monthly rate of pension payable shall be adjusted effective as of the date of change. 38 C.F.R. § 3.273. Again, the Appellant's claim was received in March 2013. The MAPR for a surviving spouse with no dependents was $8,359 in 2013. The income limit for a surviving spouse with no dependents is currently $9,334. See 2021 VA Survivors Pension Benefit Rates, https://www.va.gov/pension/survivors-pension-rates. On her March 2013 VA Form 21-534 (Application for Dependency and Indemnity Compensation or death Pension by a Surviving Spouse or Child) the Appellant reported receiving $828.00 in monthly Social Security income. However, as the RO noted in its initial decision, the Social Security Administration (SSA) reported that the Appellant's actual gross rate of entitlement was $832.90 before increasing to $833.00 effective May 2013 when the Appellant stopped paying for Medicare Part B. Assuming, this increase was first received the following June, for VA purposes it would be effective July 1, 2013, the first of the month after its first receipt. SSA also reported that the state has been paying for the Appellant's Medicare Part B premiums since June 2013. Thus, this this expense was deducted for the period between March and June 2013. However, since the Appellant is no longer paying this expense, it could no longer be considered as deductible from her countable income for VA purposes. In sum, at the time of her application, she income exceeded the MAPR for a surviving spouse with no dependents, with annual income for VA purposes of $9,992. During her hearing testimony, she challenged the calculation of her income and expenses. Specifically, she testified that she has medical expenses, to include monthly medical copays, that have not been considered in her reducing her countable income. As such, the Board remanded the claim in September 2020 so the Appellant could identify any unreimbursed medical expenses to ensure that her income and expenses are properly calculated. In correspondence later that month, the RO asked the Appellant to identify any additional unreimbursed medical expenses that were paid that may offset the amount of her countable income for pension calculation purposes for the period in question, and to identify any exclusions from income listed in 38 C.F.R. § 3.272 that are applicable in her case. While the Board notes that the September 2020 letter was returned to VA as undeliverable, a follow-up correspondence was mailed in January 2021 to a corrected address provided by the Appellant's attorney. This correspondence was not returned as undeliverable and, to date, neither the Appellant nor her representative has responded. Thus, there continues to be no evidence of record that the Appellant's annual income has not been above the income limits for a surviving spouse with no dependents during each year of the current appellate period due to any additional medical expenses, as she asserts. Based on the foregoing, the Board finds that the Appellant's countable income exceeds the maximum annual income allowed for the payment of survivor pension benefits. Because her countable income exceeds the statutory limits, entitlement to this benefit is not shown. Therefore, her claim of entitlement to nonservice-connected survivor pension benefits must be denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.