BVA9501345 
DOCKET NO.  93-03 280     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUE

1.  Whether the appellant is entitled to recognition as the
veteran's surviving spouse for purposes of improved death pension
benefits.

2.  Whether the veteran's child has excessive income for purposes
of improved death pension benefits.

ATTORNEY FOR THE BOARD

J. Connolly, Associate Counsel

INTRODUCTION

The veteran had active service from August 1971 to August 1974.

This matter came before the Board of Veterans' Appeals (Board) on
appeal from a July 1992, rating decision of the Cleveland, Ohio,
Regional Office (RO) of the Department of Veterans Affairs (VA).
The notice of disagreement was received in July 1992.  The
statement of the case was sent to the appellant in September
1992.  The substantive appeal was received in October 1992.  The
appellant is unrepresented in her appeal.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant, on behalf of herself and her son, asserts that
pension benefits should be granted to both of them.  She contends
that she does not earn enough money to adequately support her
family and/or is not employed, that her rent payments have
increased, and that her son should receive a lump sum payment
since his father never supported him.

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 is not entitled to recognition as the
veteran's surviving spouse, and that the income of the veteran's
child is excessive for purposes of improved death pension
benefits.

FINDINGS OF FACT

1.  The appellant and the veteran were divorced in January 1990,
more than two years before the veteran's death in May 1992.

2.  The surviving child of the veteran derives an annual income
of $4,608 from Social Security payments and the combined annual
income of the surviving child of the veteran and the person with
whom he is residing (his mother) is $9,216 from Social Security
payments.

CONCLUSION OF LAW

1.  The appellant and the veteran were not married at the time of
the veteran's death, and the appellant is not the surviving
spouse of the veteran.  38 U.S.C.A. §§ 101(3), 1541 (West 1991);
38 C.F.R. § 3.1(j), 3.50(a)(c) (1993).

2.  The countable annual income of the minor surviving child of
the veteran exceeds the income limitations for payment of
improved death pension benefits.  38 U.S.C.A. §§ 1542, 5107 (West
1991); 38 C.F.R. §§ 3.3(b)(4), 3.24(c), 3.57(a) and (d), 3.271,
3.272 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board observes that the appellant, on behalf of herself and
the veteran's child, is appealing the July 1992 denial of the
application for improved death pension benefits.  In that
decision, the RO denied the appellant's application based on a
finding that she was not married to the veteran at the time of
his death and also denied the appellant's application on behalf
of the veteran's child based on a finding that her income
combined with the veteran's child's income exceeded the income
limit for improved death pension benefits.

In regard to the appellant's application on her own behalf, the
Board notes that, in order to be entitled to improved death
pension benefits as a "surviving spouse" of a veteran, the
applicant must have been the veteran's spouse at the time of the
veteran's death and have lived continuously with the veteran from
the date of their marriage to the date of the veteran's death,
except where there was a separation due to the misconduct of, or
procured by the veteran without the fault of the spouse.  38
U.S.C.A. § 101(3) (West 1991).  The term "spouse" means a person
of the opposite sex who is a wife or husband.  The term "wife"
means a person whose marriage to the veteran meets the
requirements of 38 C.F.R. § 3.1(j) (1993) and 38 C.F.R. §
3.50(a)(c) (1993)

In this case, the Board observes that the appellant and the
veteran were divorced per a Florida circuit court Final Judgment
dated on January [redacted] 1990.  According to the veteran's death
certificate, he died on May [redacted] 1992.  The appellant has not
asserted nor has she presented any evidence that the appellant
and the veteran were married at the time of his death.  A review
of the evidence reveals that they had been divorced in excess of
2 years at the time of the veteran's death.  Therefore, based on
this uncontradicted evidence, since the appellant was not the
spouse of the veteran when he died, she is not eligible for
improved death pension benefits.  Under these circumstances,
there is no authority in law which would permit the grant of
death pension benefits, and the appeal must be denied or
terminated.  Aguilar v. Derwinski, 2 Vet.App. 21 (1991); Sabonis
v. Brown, 6 Vet.App. 426 (1994).

In regard to the appellant's claim on behalf of the child of the
veteran, the Board notes that the law provides for pension
payments for the surviving child of a wartime veteran providing
the surviving child's income or the income of the surviving child
and any person with whom the child is residing who is legally
responsible for the child's support does not exceed certain
limits.  38 U.S.C.A. § 1542 (West 1991); 38 C.F.R. §§ 3.3(b)(4),
3.24(c) (1993).

The maximum allowable annualized income for a surviving child of
a veteran prior to December 1992 was $1258.  Alternatively, the
maximum allowable annualized joint income for a surviving child
and, in this case, his mother with whom he resides, was $6494.
Effective December 1, 1992, the limits became $1296 for a
surviving child and $6689 for a surviving child residing with a
custodian.  Payments of any kind, from any source, will be
counted as income for the twelve month period in which it is
received, unless excluded elsewhere in the law and regulations.
38 C.F.R. §§ 3.271, 3.272 (1993).  It is noted that Social
Security payments are considered income pursuant to 38 C.F.R. §
3.262(f) (1993).  In addition, rent payments are not an expense
deductible from the computation of income as set forth in 38
C.F.R. § 3.272 (1993).

At the outset it is not disputed that the appellant's son, who is
under the age of 18, is the surviving child of the veteran as
noted in the circuit court Final Judgment dated on January [redacted]
1990.  It is also noted in that decree that the appellant is the
person legally responsible for that child.  Therefore, following
a review of that document, the Board concludes that the
appellant's son is the surviving minor child of the veteran and
that the appellant is the person legally responsible for his
support.  38 C.F.R. § 3.57(a) and(d) (1993).

In this case, in correspondence received in May 1992, the
appellant indicated that she earned $300 a week, indicating a
yearly income of $15,600.  In her notice of disagreement received
in July 1992, the appellant indicated that her son receives $383
a month in Social Security payments, indicating a yearly income
for him of $4,584.  Thereafter, in her substantive appeal, the
appellant indicated that she also receives Social Security
payments in the amount of $384 a month or $4,608 a year.  In
correspondence dated in October 1992, the appellant indicated
that she was no longer working.  She related that the sole source
of family income were her Social Security payments of $384 a
month and the veteran's child's Social Security payments of $384
a month, together totaling $9,216 a year.  She later indicated
that she had returned to work part-time for $180 a week, but then
subsequently indicated that she was not in fact employed.  She
also related that she suffers from an illness.

A review of the earned income as reported by the appellant
indicates that the veteran's surviving child's annual income
alone as derived from Social Security benefits was $4,608.  As
previously noted, the maximum allowable annualized income for a
surviving child of a veteran in 1992 was $1258.  Thus, the
child's income alone exceeds the income limit.  Alternatively,
the Board has considered whether the surviving child's income
combined with his mother's income exceeds the maximum allowable
annualized joint income for a surviving child and the person with
whom he resides who is legally responsible for him.  In this
case, assuming that his mother is not employed, their combined
annual Social Security payments total $9,216, which far exceeds
the 1992 limit of $6494.

Based on the findings set forth above, the Board concludes that
the surviving child of the veteran also is not entitled to
improved death pension benefits.  The Board notes that the
appellant has related that she suffers from an illness.  Although
unreimbursed medical expenses are deductible from income when
certain requirements are met pursuant to 38 C.F.R. §
3.272(g) (1993), the appellant has not specifically indicated
that she incurred unreimbursed medical expenses.  As noted, the
income of the veteran's surviving child and/or his income
combined with the appellant's income derived from Social Security
payments substantially exceeds the applicable income limits for
pension.  If the appellant has paid substantial unreimbursed
medical expenses on behalf of herself and/or on behalf of the
surviving child of the veteran, these may be submitted to the RO
for consideration.

ORDER

The appeal is denied.

          G. H. SHUFELT
          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.

(CONTINUED ON NEXT PAGE)
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.