Citation Nr: 22015403 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-20 663 DATE: March 17, 2022 ORDER The termination of VA death (survivors') pension benefits from November 1, 2017 was proper. Entitlement to payment of pension benefits from November 1, 2017 to February 28, 2018 is denied. Entitlement to payment of VA survivors' pension benefits from March 1, 2018 is granted. FINDINGS OF FACT 1. From November 1, 2017 to March 31, 2018, the Appellant's countable income exceeded applicable maximum annual pension rates. 2. From March 1, 2018, the Appellant's countable income did not exceed the applicable maximum annual pension rate. CONCLUSIONS OF LAW 1. The criteria for payment of VA survivors' pension benefits from November 1, 2017 to March 31, 2018 are not met. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. 2. The criteria for payment of VA survivors' pension from March 1, 2018 are 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 FINDINGS AND CONCLUSIONS This matter comes on appeal from a December 2017 decision which granted initial entitlement to VA survivors' pension from August 1, 2017 and terminated benefits effective November 1, 2017 based on the Appellant's countable income. In a January 2018 notice of disagreement, the Appellant appealed the termination of benefits. The Appellant was scheduled for a February 2022 videoconference hearing. She did not appear for the scheduled hearing and the appeal will proceed as though her hearing request has been withdrawn. See 38 C.F.R. § 20.704(d). Whether the termination of VA survivors' pension benefits from November 1, 2017 was proper Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(a)(3). The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. § 1503; 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. 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). The expense of the veteran's last illness, and amounts paid for the just debts and expenses of last illness and burial, paid by the veteran's spouse, will be deducted from the income of the surviving spouse for any 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). The record shows that survivors' pension benefits were initially awarded effective August 1, 2017, the month after the Veteran's death. Pension benefits were terminated from November 1, 2017 based on the Appellant's receipt of income in excess of the MAPR. The MAPR for a surviving spouse without dependents on November 1, 2017 was $8,656.00. The MAPR was increased to $8,830.00 effective December 1, 2018. In the September 2017 Application for Survivors Pension, the Appellant reported income from wages in the amount of $3,200.00 a month or $38,400.00 annually. The Appellant is also presumed to be in receipt of a one-time lump sum SSA death benefit in the amount of $255.00, countable for the one-year period beginning on August 1, 2017. In a February 2018 statement, the Appellant clarified that she earned $716.00 a week before taxes ($37,232.00 annually) through September 2017, and that she began receiving unemployment benefits in October 2017 in the amount of $430.00 a week ($22,360.00 annually) until March 24, 2018. An April 2017 Improved Pension Eligibility Verification Report (EVR) shows that the Appellant report receiving $686.00 a week in wages. It is not clear whether this was after taxes as it is inconsistent with her prior reports, thus, the Board has used the reported February 2018 pretax income. She reported receiving $430.00 weekly in unemployment. In an April 2018 substantive appeal, the Appellant reported that she had no income as of February 13, 2018 when she received her last unemployment payment. For the entire appeal period, the Appellant has not identified any unreimbursed medical expenses which may be counted to reduce income. In her September 2017 claim, the Appellant identified $6,000 paid for burial expenses, which may be deducted for the 12-month annualization period from August 1, 2017. From November 1, 2017 the Appellant had an annualized income of $37,232.00 from her wages, reported in the amount of $716.00 a month. A one-time lump sum SSA death benefit in the amount of $255.00 is countable, and her annualized income is reduced by last expenses in the total amount of $6,000.00. Therefore, she had a countable income of $31,487.00. The Appellant's countable income was well in excess of the MAPR of $8,656.00 and was a bar to the receipt of pension benefits. The Appellant stopped working in September 2017, and began receiving unemployment benefits in October 2017. From October 1, 2017, she had an annualized income of $22,360.00. A one-time lump sum SSA death benefit in the amount of $255.00 is countable, and her annualized income is reduced by last expenses in the total amount of $6,000.00. Therefore, she had a countable income of $16,615.00. The Appellant's countable income exceeded the MAPR of $8,830.00 and was a bar to the receipt of pension benefits. Accordingly, from November 1, 2017 to February 28, 2018, the Appellant's countable income exceeded the applicable MAPRs and entitlement to payment of pension benefits is not warranted. From March 1, 2018, the Appellant reported that she was no longer receiving unemployment benefits, that her last payment was in February 2018, and that she had $0.00 in income. A one-time lump sum SSA death benefit in the amount of $255.00 is still countable, and her annualized income is reduced by last expenses in the total amount of $6,000.00. The Board finds, therefore, that from March 1, 2018, the Appellant had a countable income of $0.00 and entitlement to survivor's pension is warranted. A. Odya-Weis Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.