BVA9501104 DOCKET NO. 92-00 148 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether the appellant's income is excessive for the purposes of entitlement to Department of Veterans Affairs improved death pension benefits. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. J. Rolfsen, Jr., Counsel INTRODUCTION The veteran served on active duty from April 1951 to December 1953. The veteran died in June 1988 and the appellant is his widow. This appeal stems from an August 1991 decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she is entitled to VA death pension benefits. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's income exceeds the maximum annual rate of VA death pension benefits. FINDINGS OF FACT 1. All relevant evidence necessary for the disposition of the appellant's appeal has been obtained. 2. The appellant has reported that her monthly income is limited to Social Security disability benefits that, as of August 1991, were $412 a month, and as of August 1992, $428 a month. 3. The maximum annual rate of VA improved death pension benefits as of December 1, 1990, was $4,780, and as of December 1991, $4,957. 4. Unreimbursed medical expenses sufficient to reduce the appellant's annual countable income below the maximum annual rates as of December 1990 and December 1991 have not been reported. CONCLUSION OF LAW The appellant's annual income exceeds the maximum annual rate of VA improved death pension benefits effective December 1, 1990. 38 U.S.C.A. §§ 101(9), 1503, 1521(j), 1541, 5107 (West 1991); 38 C.F.R. § 3.23, 3.271, 3.272 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist the appellant in order to comply with our duty to assist her as mandated by 38 U.S.C.A. § 5107. Governing regulations provide that the Secretary shall pay to the surviving spouse of each veteran who served for ninety days or more during a period of war pension at the rate prescribed by this section and reduced by the surviving spouse's annual income. Effective December 1, 1990, the maximum annual rate of improved death pension for a surviving spouse with no dependents was $4,780. Effective December 1, 1991, the maximum annual rate was $4,957. 38 U.S.C.A. §§ 1521(j), 1541; 38 C.F.R. § 3.23. Also, in determining income, all payments of any kind or from any source shall be included. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. Furthermore, amounts equal to amounts paid by the surviving spouse for unreimbursed medical expenses to the extent that such amounts exceed 5 percent of the maximum annual rate of pension will be excluded from income. 38 U.S.C.A. § 1503(a)(8); 38 C.F.R. § 3.272(g)(2). The veteran served on active duty from April 1951 to December 1953. This service includes service of more than 90 days during a period of war. 38 U.S.C.A. § 101(9). Thus, the appellant will be entitled to VA improved death pension benefits if her income does not exceed the maximum annual rate. Since any pension benefits payable are reduced by the surviving spouse's annual income, 38 U.S.C.A. § 1541, if the surviving spouse's income exceeds the maximum annual rate of pension, the pension benefits that otherwise would be payable would be reduced to zero and pension benefits would not be payable. The appellant submitted an Eligibility Verification Report in August 1991 that indicated that her monthly income was limited to Social Security benefits of $412. This equates to an annual income of $4,944 ($412 * 12). She also reported unreimbursed medical expenses of approximately $4 or $5 a month. In December 1991 and August 1992, the appellant was accorded personal hearings at the RO. On the former occasion she again stated that she received Social Security disability benefits in the amount of $412 per month. She added that the bulk of her medical expenses were covered by Medicaid. At the time of the second hearing the appellant said her monthly Social Security check was $428 or $5,136 annually. She was requested to report her unreimbursed medical expenses in detail. In September 1992 the appellant said that it was impossible to provide an itemization of her unreimbursed medical expenses. In March 1993 she advised that during the period under consideration she had spent $200 on over the counter medication in January and February 1992. Since, per the provisions of 38 U.S.C.A. § 1503(a)(8), only such unreimbursed medical expenses that exceed 5 percent of the maximum allowable rate of pension may be excluded and, as noted above, the maximum allowable rate of pension effective December 1, 1990, was $4,780, and effective December 1991 $4957, any unreimbursed medical expenses exceeding $239 ($4,780 * 5%) or after December 1991 $248 ($4,957*5%), may be excluded from her countable annual income. However, the appellant's unreimbursed medical expenses, as reported, are not sufficient to reduce her annual countable income below the maximum annual rate; therefore, she has no entitlement to VA death pension benefits. The appellant may reopen her claim for VA death pension benefits at any time should she experience a reduction in countable income and/or increased unreimbursed medical expenses. With respect to this determination, the evidence is not so evenly balanced so as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER The appeal is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.