Citation Nr: 18160502
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 12-28 175
DATE:	December 28, 2018
ORDER
The decision to terminate the appellant’s nonservice-connected death pension benefits effective June 1, 2009, was proper.
FINDING OF FACT
For the relevant period on appeal from June 1, 2009, the appellant’s countable annual income exceeds the maximum annual death pension rate (MAPR) that applies to a surviving spouse with no dependent children.
CONCLUSION OF LAW
The decision to terminate the appellant’s nonservice-connected death pension benefits effective June 1, 2009, was proper.  38 U.S.C. §§ 101, 1503, 1541 (West 2014); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.271, 3.272, 3.274, 3.275 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1965 to October 1973, and died in August 1997.  The appellant is the Veteran’s surviving spouse.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania.
In September 2016, the Board remanded the case in order to schedule the appellant for a Board hearing.  The appellant was scheduled for a hearing before a member of the Board in May 2017, but did not appear for the hearing.  As such, the appellant’s hearing request is deemed withdrawn.  38 C.F.R. § 20.704 (d).  
In July 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development, to include obtaining a report of the appellant’s income and expenses for calendar years 2009 and 2010.  The AOJ requested that the appellant provide this information, and the appellant provided some of the requested information.  Accordingly, the Board finds that the AOJ substantially complied with the July 2017 Board remand directives, and the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).
Termination of nonservice-connected death pension
The appellant seeks restoration of her nonservice-connected death pension benefits, which were terminated effective June 1, 2009. 
Historically, an October 2004 decision granted nonservice-connected death pension benefits, effective May 1, 2004.  In August 2010, the AOJ requested updated income and net worth information from the appellant.  The September 2010 decision on appeal terminated the appellant’s death pension benefits, effective January 1, 2009, because the appellant failed to furnish the requested income and net worth information.  The appellant filed a notice of disagreement with the termination of her nonservice-connected death pension benefits.  In October 2018, the AOJ restored the appellant’s death pension benefits from January 1, 2009, to June 1, 2009, based on information received the from the appellant that she was granted Social Security Administration (SSA) benefits in April 2009.  Accordingly, the Board will address whether the decision to terminate the appellant’s death pension benefits, effective June 1, 2009, was proper. 
Relevant to this appeal, a surviving spouse is entitled to death pension benefits if, among other things, the appellant’s income is not in excess of the applicable MAPR, and specified at 38 C.F.R. § 3.23, as changed periodically, and reported in the Federal Register.  See 38 U.S.C. § 1521.  The maximum pension rate is reduced dollar for dollar by the amount of the countable income of the appellant and any dependent.  38 U.S.C. § 1521; 38 C.F.R. § 3.23(d).  In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded.  38 U.S.C. § 1503; 38 C.F.R. § 3.271.  The MAPRs are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312.  
Effective June 2009, for death pension purposes, the MAPR for a surviving spouse with no dependent child was $7,933.  See Pension Rate Tables, Effective December 1, 2008, available at https://www.benefits.va.gov/PENSION/rates_survivor_pen08.asp (accessed on December 18, 2018).  The MAPR was increased to $8,219, effective December 1, 2011; $8,359, effective December 1, 2012; $8,485, effective December 1, 2013; $8,630, effective December 1, 2014; $8,656, effective December 1, 2016; $8,830 effective December 1, 2017; and $9,078 effective December 1, 2018.
Unreimbursed medical expenses reduce countable income for VA pension purposes.  Unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, may be excluded from an individual’s income for the same 12-month annualization period to the extent they were paid.  38 C.F.R. § 3.272(g)(1)(iii).  
Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); VA pension benefits; payments under Chapter 15 of Title 38, United States Code, including accrued pension benefits; reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner).  38 C.F.R. § 3.272.
In this case, the record reflects that the appellant has been in receipt SSA benefits amounts well above the relevant MAPR amounts.  A June 2009 Form SSA-1099 shows that the appellant’s SSA income was $6,816 for calendar year 2009.  This reflects SSA benefit payments for the period from April 2009 to December 2009.  Accordingly, the monthly SSA benefit was $757; therefore, effective June 1, 2009, the annualized SSA benefit amount was $9,088 ($757 per month multiplied by 12 months), which is in excess of the relevant MAPR amount of $7,933.  The record also shows that the appellant was in receipt of annual SSA income of $10,224 for 2010; $10,218 for 2011; $10,582.80 for 2012; $10,762.80 for 2013; $10,930.80 for 2014; $11,110.80 for 2015; $11,110.80 for 2016; and $11,148 for 2017.  See 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017 Forms SSA-1099. 
Unreimbursed medical expenses that are over five percent of the relevant MAPR are used to reduce countable income.  In this case, the 2011 Form SSA-1099 shows that $1,154 was deducted from the appellant’s SSA benefits for Medicare Part B premiums.  As noted above, the MAPR effective December 1, 2010 for a surviving spouse with no dependents is $7,933, and 5 percent of that amount is $396.65.  Therefore, in calculating the appellant’s countable income, only unreimbursed medical expenses in excess of $396.65 can be considered.  As such, for 2011, the appellant’s annual unreimbursed medical expenses totaled $1,154.  Deducting the $396.65 (5 percent of MAPR) from $1,154 results in $757.35 in deductible unreimbursed medical expenses for 2011.  After deducting the amount of unreimbursed medical expenses that are over 5 percent of the relevant MAPR ($757.35) from the total income of $10,218 for 2011 results in countable income of $9,460.65, which is above the relevant MAPR amount.  The same analysis applies to subsequent annualization periods.  See 2012, 2013, 2014, 2015, 2016, and 2017 Forms SSA-1099.  
The appellant has not otherwise reported any additional income or net worth information, and has not provided any evidence of eligible unreimbursed medical expenses or any other expenses that may be deducted from her income for purposes of calculating her countable income for nonservice-connected pension purposes.  
Based on the foregoing, the Board finds that, for the initial and subsequent annualization periods starting on June 1, 2009, the appellant’s countable income has exceeded the relevant MAPR.  Accordingly, effective June 1, 2009, the appellant does not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and nonservice-connected pension death pension is, therefore, not warranted.  For these reasons, the Board finds that the decision to terminate the appellant’s death pension benefits effective June 1, 2009, is proper, and the appeal is, therefore, denied.
 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Ragheb, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.