Citation Nr: 21050020 Decision Date: 08/13/21 Archive Date: 08/13/21 DOCKET NO. 13-22 366 DATE: August 13, 2021 ORDER Entitlement to additional Parents' Dependency and Indemnity Compensation (DIC) benefits is denied. FINDING OF FACT A higher rate of DIC could not be paid because the appellant's countable income exceeded the amounts permitted for a higher rate of pay. CONCLUSION OF LAW The criteria for additional payment of Parents' DIC have not been met. 38 U.S.C. §§ 1310, 1315, 5312; 38 C.F.R. §§ 3.25, 3.251, 3.260, 3.262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from March 1966 to May 1967. He died in combat in the Republic of Vietnam in May 1967. The appellant is his mother. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) October 2010 decision. In May 2013, the appellant testified at an RO hearing before a Decision Review Officer (DRO). The transcript of the hearing is in the claims file. The Board previously remanded the appellant's claim in May 2015 for additional development. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the appellant's claim without prejudice to her. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to additional Parents' Dependency and Indemnity Compensation (DIC) benefits The appellant contends that she should be entitled to more Parents' DIC benefits than what she has been paid (i.e., $5.00 per month). Dependency and Indemnity Compensation (DIC) may be awarded to a surviving spouse, child, or parent of a veteran who dies from a service-connected disability occurring after December 31, 1956. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (a). For Parents' DIC, basic entitlement exists if, among other things, the Parents' annual income is not in excess of the applicable maximum benefit rate. 38 U.S.C. § 1315; 38 C.F.R. §§ 3.25, 3.251. Thus, DIC benefits payable to parents are subject to limitations on annual income. For Parents' DIC, the calculation of annual income is governed by 38 C.F.R. §§ 3.250 to 3.270. 38 C.F.R. § 3.270(a)(4). Income determinations for Parents' DIC purposes are always made on a calendar-year basis. The amount of countable income is calculated by subtracting the value of unusual medical expenses from a value that the Board will refer to as reported annual income. See 38 C.F.R. § 3.262(l)(1) (discussing "reported annual income" as part of the calculation of unusual medical expenses). Reported annual income is equal to the sum of all sources of yearly income after each yearly income value is corrected, if necessary, as required by statute. The basic rule is that "[p]ayments of any kind or from any source will be counted as income unless specifically excluded." 38 C.F.R. §§ 3.252(c), 3.262(a). However, some types of income are reduced by 10 percent (such as commonly received retirement benefits and Social Security benefits based on age, death or disability) and the remaining 90 percent is considered income received. See 38 C.F.R. §§ 3.262(e)(4), (f), (i)(2). Dollar amounts are rounded down to the nearest dollar. See 38 C.F.R. § 3.29(b). Unusual medical expenses are excluded as part of the calculation of the claimant's annual income. 38 C.F.R. § 3.262(l). For Parents' DIC purposes, the term "unusual" means "excessive" referring to the amount expended for medical treatment in relationship to the claimant's resources available for sustaining a reasonable mode of life rather than the nature of the medical condition treated. Id. To that end, VA has defined "unusual medical expenses" as unreimbursed expenditures that exceed five percent of a claimant's reported annual income. Id. Such expenses include "[h]ealth, accident, sickness, and hospitalization insurance premiums." Id. "A claimant's statement as to amounts expended for medical expenses ordinarily will be accepted unless the circumstances create doubt as to its credibility." Id. Mathematically, the value of unusual medical expenses is determined by first calculating the value of five percent of the claimant's reported annual income and then subtracting that value from the amount of reported medical expenses. Countable income is then calculated by subtracting the value of unusual medical expenses from the value of reported annual income. No payments of Parents' DIC may be made if such parents' countable income exceeds the amount specified in 38 U.S.C. § 1315(d)(3) as increased from time to time under 38 U.S.C. § 5312. No payment of Parents' DIC may be less than $5.00 a month. The appellant was initially awarded Parents' DIC benefits effective October 17, 1973. See November 1973 Correspondence. After reviewing the appellant's reported income and medical expenses, the Board unfortunately finds that the appellant is not entitled to any additional benefits. The Board notes that the last adjudication of the appellant's claim in an August 2018 supplemental statement of the case (SSOC) only addressed the appellant's entitlement from 2010 until 2017. Subsequently, the appellant appropriately filed her medical expenses on VA Form 21P-8416 for 2018 and thereafter, which claims the RO has adjudicated separately. Hence, the Board will not consider those years as the appellant has not appealed the decisions made. The appellant's income and medical expenses for VA purposes for 2010 through 2017 are calculated as follows: Calendar Year Annual Income 90% of Income Medical Expenses 5% of Income Countable Income 2010 $11,472.00 $10,324.00 $109.80 $573.00 $10,324.00 2011 $11,472.00 $10.324.00 $109.80 $573.00 $10,324.00 2012 $11,880.00 $10,692.00 $1,150.00 $594.00 $10,136.00 2013 $12,084.00 $10,875.00 $109.80 $604.00 $10,875.00 2014 $12,264.00 $11,037.00 $109.80 $613.00 $11,037.00 2015 $12,468.00 $11,221.00 None reported N/A $11,221.00 2016 $12.468.00 $11,221.00 None reported N/A $11,221.00 2017 $12,504.00 $11,253.00 None reported N/A $11,253.00 The Board notes that the appellant has been in receipt of Social Security retirement income since 1993 and the amount of her monthly benefits was verified through a data match with the Social Security Administration (SSA). The monthly benefit received was multiplied by 12 to obtain her annual income and then reduced to 90 percent as required. With regard to the appellant's medical expenses, the Board acknowledges that appellant testified at the May 2013 RO hearing about her current medical expenses which included transportation expenses, insurance premiums, copays for doctor visits and prescriptions and costs of over-the-counter medications. The record was kept open for her to properly submit her medical expenses on VA Form 21P-8416, Medical Expense Report, which she did in June 2013. However, the June 2013 VA Form 21P-8416 she submitted only related to her medical expenses for 2012. The Board has remanded this appeal to allow the appellant to submit information regarding her income and medical expenses. In September 2015, the appellant submitted additional VA Form 21P-8416s for 2010 through 2014, but only reported allowable expenses of $109.80 per year. To the extent the appellant reported paying Medicare Part B insurance premiums, the SSA data match shows that these premiums have been paid by the State on her behalf since May 2003. Thus, such amounts are not included in the amount used to reduce the appellant's countable income. Furthermore, the Board notes that the additional medical expenses for 2012 reported on the June 2013 VA Form 21P-8416 were also allowed to reduce the appellant's countable income for 2012, which resulted in this year being the only year that the appellant had unusual medical expenses (i.e., expenses that exceeded five percent of her annual income). Based on the appellant's income, her entitlement to Parents' DIC is set forth below. The Board notes that the amounts in the right two columns are taken directly from VA's Parents' DIC rate charts located at https://www.va.gov/disability/parent-dic-rates/. Calendar Year Countable Income Income not over but less than Monthly Rate of Parents' DIC 2010 $10,324.00 $7,850.00 - $13,456.00 $5.00 2011 $10,324.00 $8,113.00 - $13,941.00 $5.00 2012 $10,136.00 $8,250.00 - $14,178.00 $5.00 2013 $10,875.00 $8,375.00 - $14,391.00 $5.00 2014 $11,037,00 $8,500.00 - $14,636.00 $5.00 2015 $11,221.00 $8,500.00 - $14,636.00 $5.00 2016 $11,221.00 $8,513.00 - $14,680.00 $5.00 2017 $11,253.00 $8,663.00 - $14,974.00 $5.00 As clearly shown on the above table, the appellant's countable income has fallen directly within the range of income that only provides a monthly benefit of $5.00. If the appellant had additional medical expenses to reduce her annual income, she was obligated to provide such information to VA in support of her claim. Unfortunately, she has not done so. Moreover, in the one year she did report additional medical expenses, her countable income was still in excess of the amount required to receive a higher rate of pay. In closing, the Board acknowledges the Appellant's son's service in the U.S. Marine Corps. This decision is in no way meant to diminish his honorable combat service and that he made the ultimate sacrifice for our country. Although the Board is sympathetic to the appellant for the loss of her son and her need for additional financial resources, the laws and regulations regarding Parents' DIC benefits are clear and the Board is bound by them. See 38 C.F.R. § 19.5. Unfortunately, they do not provide the appellant with a higher benefit. Therefore, the Board must find that the appellant is not entitled to additional Parents' DIC benefits based upon her countable income, and her appeal must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.