BVA9508338 DOCKET NO. 92-10 165 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the expenses of the veteran's last illness have been properly excluded from the computation of his surviving spouse's income for the purpose of death pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. E. Smith INTRODUCTION The veteran had active military service from May 1953 to May 1955. The appellant is the widow of the veteran who died in April 1987. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 1992 notice of an administrative determination by the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). This determination found that the appellant was not entitled to nonservice-connected death pension benefits due to receipt of income in excess of the statutory limits for receipt of this award. At the time this case was remanded to the RO in May 1994, the Board characterized the issue as whether the appellant's annual countable income was at a level which would permit payment of improved death pension benefits, an issue which included that developed for appellate review by the RO. Because the appellant did not comply with VA's request for income information, certain action requested by the Board, to include consideration of her claim for death pension, could not be undertaken. Therefore, the Board will confine this decision to the issue stated on the preceding page. The Board does not find that another remand in this case, to obtain copies of the appellant's Federal income tax returns, is necessary. First, the appellant has claimed that she did not file tax returns for the years in question. Second, a request to the Internal Revenue Service for such information is not appropriate in this case in light of restrictions placed on that agency in releasing taxpayer information. CONTENTIONS The appellant contends, in effect, that she should be entitled to have recurrent monthly payments of $816 to a mortgage company deducted from her countable income for the purpose of computing her running award of death pension benefits. In this regard, the appellant argues that these monthly payments represent repayment of a $54,000 loan used to pay the medical expenses associated with the veteran's terminal illness. DECISION OF THE BOARD The 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 has not submitted evidence sufficient to justify a belief by a fair and impartial individual that her claim to have the recurrent monthly payments of $816 deducted from her countable income as an unreimbursed medical expense for the purpose of improved death pension benefits is well-grounded and, accordingly, her claim is dismissed. FINDING OF FACT The appellant has not submitted evidence sufficient to justify a belief by a fair and impartial individual that the monthly payment of $816 represented payment of an unreimbursed medical expense which should be deducted from her countable income for the purpose of receipt of death pension benefits. CONCLUSION OF LAW The appellant has not submitted a well-grounded claim for consideration of monthly payments of $816 as an unreimbursed medical expense. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.271, 3.272(g) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An appellant who applies for benefits has the initial burden of presenting a plausibly valid claim. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The applicant must submit evidence "sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded." 38 U.S.C.A. § 5107(a). The Board does not have jurisdiction to adjudicate any claim which is not well grounded. Boeck v. Brown, 6 Vet. App. 14, 17(1993). A well-grounded claim has been defined as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Following a thorough review of the record in this case, the Board concludes that the appellant has not met this initial burden. In computing income for improved pension purposes, payments of any kind from any source will be counted as income in the annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. There will be excluded from the computation of annual income any unreimbursed amounts which have been paid during the 12-month annualization period for medical expenses regardless of when the indebtedness was incurred. Such expenses must be in excess of the 5 percent of the applicable maximum annual pension rate or rates for the surviving spouse. 38 C.F.R. § 3.272(g). Expenses of the veteran's last illness, burials and just debts, which are paid during the calendar year following that in which death occurred may be deducted from annual income for the 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. Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. Any expenses paid subsequent to death, but before the date of entitlement are not deductible. 38 C.F.R. § 3.272(h). Many of the basic facts of this case are not in dispute. The appellant was awarded improved death pension benefits in 1988; effective in April 1988 she was paid benefits at the maximum rate based on her report that she had no income from any source. On her Eligibility Verification Reports (EVRs) filed in February 1990 and May 1991, the appellant reported that she had no income from any source, including Social Security or wages. She reported payment of no unreimbursed medical expenses. After it was learned by the RO that she had been in receipt of Social Security benefits of more than $600 monthly (an amount which exceeds the maximum income limit for a widow without dependents), she reported in June 1991 various unreimbursed medical expenses, for herself and the veteran, which she claimed were paid by her. Included was the report of a payment in the amount of $816 monthly to UCLA Medical Center (UCLA), beginning in March 1989. In July 1991, the Social Security Administration reported that the appellant received her first disabled widow's payment in April 1989, which included an award of retroactive benefits of more than $8,000, and that, thereafter, her benefits started at the monthly rate of $634 in May 1989. In July 1991, the RO took action to retroactively adjust her death pension award, due to the evidence received concerning her previously unreported income. That month the appellant responded that she was paying to UCLA Medical Center directly a monthly amount of $816 for the cost of the veteran's last illness. She explained that that facility had a lien on her home and that she owed approximately $37,800. Received from the appellant was a copy of a check written to that institution in April 1989 in the amount of $8,050. Her service representative explained, in a letter of September 1991, that this check represented proof that the appellant had used her retroactive Social Security check toward payment of medical expenses. The RO, in July 1991, took action to retroactively adjust the appellant's award of death pension; in pertinent part she was awarded these benefits at the maximum rate, effective from May 1, 1990 through February 28, 1991, based on the deduction from her countable income of the veteran's "last" expenses and unreimbursed medical expenses. The sole income considered by the RO consisted of Social Security benefits. In September 1991, the appellant was advised by VA that death pension had been reinstated at the maximum rate, due to the finding that unreimbursed medical expenses reduced her countable income to $0. In September 1991 the appellant wrote that she had taken out a loan against her home to pay the veteran's medical expenses of $54,000. She stated that this amount was paid to UCLA Medical Center and that she had to repay the amount at the rate of $816 or risk losing her home. The appellant specifically directed attention to the attached copy of a loan application from "Transamerica," reflecting that the purpose of the loan was to pay off medical expenses. Under "General Comments" was noted "$54,000 to UCLA Medical Center." That loan application, dated in September 1989, contains the following relevant information. The appellant requested a loan in the amount of $54,000. Her total monthly income was reported to be $2,594, consisting of $634 from Social Security benefits, $360 from VA pension benefits and $1,600 net income from wages. On the application it was noted that this amount did not include an additional $250 monthly from government bonds. It was also noted on the form that the wage income, from Superstition Industries, had been verified from check stubs in the file. Reportedly the appellant was employed as a bookkeeper. Among her liabilities was listed a loan in the amount of $25,000 for an automobile purchased in April 1989. In her EVR of November 1991, the appellant reported paying $816 monthly to a mortgage company for medical expenses incurred. As a result of such information, in January 1992 the RO advised the appellant that the payment of $816 could no longer be deducted from her countable income, so as to permit payment of death pension. She was told, moreover, that payment to her of this benefit based on a finding that this payment qualified as an unreimbursed medical expense, for the period beginning in March 1991, was due to error on the part of VA. In response the appellant and her service representative submitted statements to the effect that the monthly payments on the loan should be treated as if they were being made directly to the Medical Center. In accordance with the Board's remand action, the RO wrote to the appellant at her address of record in July 1994 and requested that she provide copies of her 1988, 1989, 1990, and 1991 Federal income tax returns. She was told that if she did not have copies, she should contact the Internal Revenue Service and request that these be provided to her. She was also requested to furnish a statement from UCLA Medical Center reflecting the amount of unreimbursed medical expenses of the veteran's last illness paid by her, beginning in 1989, to include the amounts actually paid and the dates of payment. Of record is a report of contact between the appellant and her service representative, who indicated that she had telephoned him in October 1994, claiming that she had filed no income tax returns for the years in question. The Board suspects that this is not true, inasmuch as the appellant herself submitted information in the form of the mortgage application, dated in September 1989, showing that she was employed as a bookkeeper, earning a salary of $1,600 monthly. (This was at a time when she had reported to VA that she had no income from any source.) As well, other income also not reported to VA was listed on that form. The appellant has also asserted that she had written to the medical facility numerous times for an accounting of funds paid, which she believed to be in the neighborhood of $50,000 to $75,000. She stated that she had refinanced her home to pay the bills, and later she claimed that the home had been repossessed based on her inability to repay the debt. Again, the Board can only point out that while the appellant wishes to have her claimed payment of $816 monthly deducted from her countable income as payment of unreimbursed medical expenses, she has submitted insufficient evidence to establish not only the existence of such debt but also that she ever actually attempted to repay it, with the exception of a payment of approximately $8,000 in 1989. She has reported to her service representative that she has contacted UCLA Medical Center numerous times without success, but the Board finds it highly unlikely that she would not have in her possession bills from that facility or other documentary evidence of such debt or its repayment. The record in this case suggests that once the appellant was aware that her monthly income from Social Security was excessive for the purpose of continued receipt of death pension, she sought to have monthly payments of $816 paid to a mortgage company deducted from her annual countable income. It appears from her statements and the loan application filed in 1989 that the purpose of the loan was to pay off medical debts. Whether the loan proceeds were applied to such purpose is unknown on the basis of the record available to the Board. As noted above, this case was remanded, in part, to obtain such information. The appellant has reportedly been unable to secure such information. Because of the numerous inconsistencies relating to her income in the record, the Board is unwilling to accept her statements alone as to such payments as constituting sufficient evidence. Her failure to submit credible documentation of the payment of claimed unreimbursed medical expenses persuades the Board that she has not met the burden of submitting a well-grounded claim. Thus there is no need for the Board to reach the underlying question of whether the repayment of the mortgage loan, purportedly made to repay a large medical debt, must be treated as "payment" of unreimbursed medical expenses, deductible from countable income during the life of the mortgage. Finally, the Board observes that even if there had been presented sufficient information to establish that the monthly payment of $816 constituted payment of an unreimbursed medical expense, the extent of her income for at least part of the period in question, as noted on the loan application that she herself furnished, makes it highly unlikely that her income would have been within the permissible limit for receipt of death pension. Inasmuch as the appellant has not submitted a well-grounded claim, her appeal must be dismissed. ORDER The appellant's claim to have monthly payments of $816 deducted from her countable income as an unreimbursed medical expense for the purpose of receipt of death pension is dismissed. N. R. ROBIN 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.