BVA9503549 DOCKET NO. 93-10 460 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the value of the appellant's estate is such that it constitutes a bar to her receipt of death pension benefits? REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran, who died in September 1988, had active military service from April 1942 to December 1943. The appellant in this case is his widow. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 1992 determination by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's request for death pension benefits on the ground of excessive net worth. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, essentially, that the RO committed error when it denied her claim for death pension benefits based on a finding of excessive net worth. In support of her claim for VA benefits, the appellant argues that her savings should not be considered in her case, since she has no living relatives and, therefore, she would ultimately be responsible for paying any costs associated with lengthy hospital stays and her funeral. 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 preponderance of the evidence is against the appellant's claim FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. In September 1992, when net worth information was last furnished, the appellant reported a net worth of $35,979, consisting of cash, bank accounts, etc. She has reported monthly expenses which exceed her income. 3. She is currently 71 years of age, and has no dependents. 4. It is reasonable that some portion of the appellant's assets be consumed to pay for her maintenance, in light of her liquid assets of over $35,000, lack of dependents for whom she is personally responsible, and no evidence of unusual expenditures. CONCLUSION OF LAW The corpus of the appellant's estate currently precludes award of death pension benefits. 38 U.S.C.A. §§ 1543, 5107 (West 1991); 38 C.F.R. §§ 3.274, 3.275. REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we have found that the appellant's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that she has presented a claim which is not inherently implausible. Further, after examining the record, we are satisfied that all relevant facts have been properly developed and that the data on file are sufficient for us to render a fair and equitable determination of the matter at hand. Subsequent to the veteran's death in September 1988, the appellant applied for and was awarded improved death pension benefits which continued through August 1991. Benefits were paid at various rates under her award due to changes in income, and her award was terminated effective September 1, 1991, due to excessive income. Thereafter, the appellant filed an eligibility verification report (EVR) in September 1992, which showed that she had over $35, 000 cash in the bank. She also reported $3,281 in medical expenses incurred between September 1991 and August 31, 1992. She also indicated that she received $1,579 in annual interest payments. Monthly Social Security income of $326.80 was reported. The appellant reported that she had no dependents. In response to a VA request, the appellant submitted an additional statement of monthly expenses in October 1992. She reported no monthly expense for housing, $200 for food, $19.28 for taxes, $50 for clothing, $100.00 for utilities, $38.20 for insurance, and a total of $76.66 for heating and automobile fuel. Based on this information, a corpus of estate determination was issued by the RO in October 1992. It was noted that the appellant was then 68 years old and had a life expectancy of 14.4 years. Although the RO found that the appellant's annual expenses exceeded her annual income by $308, it further held that her savings, in the amount of $35,979, would not be depleted within her life expectancy. In view of these facts, the RO denied the appellant's claim for reinstatement of improved death pension benefits, concluding that it was not unreasonable to expect the appellant to use her net worth for her personal maintenance. 38 U.S.C.A § 1543 (West 1991) and 38 C.F.R. § 3.274 (1993) provide for consideration of the corpus of the estate of a claimant in determining entitlement to pension. Payments of pension is not permitted where the claimant's estate is such that under all circumstances, including consideration of his or her income, it is reasonable that some part of the corpus be consumed for the claimant's maintenance. 38 C.F.R. § 3.275 (1993) provides, in pertinent part: (a) General. The following rules are for application in determining the corpus of estate or net worth of a veteran, surviving spouse or child under § 3.274. (b) Definition. The terms corpus of estate and net worth mean the market value, less mortgages or other encumbrances, of all real and personal property owned by the claimant, except the claimant's dwelling (single family unit), including a reasonable lot area, and personal effects suitable to and consistent with the claimant's reasonable mode of life. . . . (d) Evaluation. In determining whether some part of the claimant's estate...should be consumed for the claimant's maintenance, consideration will be given to the amount of the claimant's income together with the following: Whether the property can be readily converted into cash at no substantial sacrifice; life expectancy; number of dependents...; potential rate of depletion, including unusual medical expenses... for the claimant.... The Board has carefully considered the evidence of record, in light of the appellant's contentions and the applicable law and regulations. Documents currently on file show that the appellant was born in November 1923. Therefore, she is now 71 years old. There is no contention or evidence that she has any dependents for whom she is financially responsible. The latest income information reflects that the appellant has over $35,000 of cash reserves in a bank account. The Board recognizes that the appellant's monthly expenses exceed her monthly income from Social Security benefits and interest income. The RO has calculated that her annual expenses exceed her annual income by $308. However, the RO apparently did not take into account any medical expenses, presumably because she did not indicate any on the statement of expenses submitted in October 1992. Nevertheless, since she reported medical expenses of $3,281 paid during the period from September 1, 1991 through August 31, 1992 on her September 1992 EVR, and since previous EVR's also showed medical expenses, the Board concedes that a proper accounting of the appellant's expenses would include medical expenses, since she undoubtedly has such expenses on an ongoing basis. It is therefore quite likely that the appellant's expenses on a monthly basis exceed her income by an amount higher than that as calculated by the RO. The fact remains however that the appellant has a significant net worth consisting of more than $35,000 in liquid assets. She has no dependents, and it is reasonable that some part of the corpus of her estate be consumed to meet her living expenses including her medical expenses. We would point out that should her net worth become significantly depleted by increased expenditures or for other reasons, the appellant may again file a claim for death pension. However, based upon the current record, the Board finds that her net worth is of sufficient size such that some portion of it should be consumed to defray the cost of the appellant's maintenance. We can appreciate the appellant's desire to maintain cash reserves in anticipation of future or unforeseen developments or expenditures. Nonetheless, the underlying purpose for payment of improved death pension is to aid claimants who are in need of financial assistance through lack of resources of their own. The intent of the pension program is not to provide government benefits to those who are financially able to support themselves by virtue of their own income and/or their ability to utilize a portion of their net worth. Accordingly, we find that the corpus of the appellant's estate is a bar to her receipt of improved death pension benefits. The preponderance of the evidence is against the claim. ORDER The appeal is denied. D. C. SPICKLER 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.