BVA9507472 DOCKET NO. 93-13 503 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether the income of the appellant’s older child, [redacted], is countable for purposes of determining the appellant’s entitlement to payment of death pension for the period prior to July 1992. REPRESENTATION Appellant represented by: The Am[redacted]an Legion ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from January 1951 to January 1954. He died in December 1986. The appellant in this case is the veteran’s surviving spouse. This case came before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, in March 1992 which denied the appellant’s claim for death benefits on the basis that her income exceeded the maximum allowable amount. In addition, the RO found that, although the appellant’s son, [redacted], had attained the age of 18 years, he must still be considered to be her dependent and his income must be included with hers as countable. The record reflects that, effective in July 1992, the appellant was awarded death pension, based on income received by [redacted], her younger son, prior to his 18th birthday. Since the evidence from that date does not establish whether or not [redacted] met the definition of "child" for VA benefits, he was not found to be her dependent, nor was his income, if any, considered. For this reason, the Board amends the issue as set forth on the preceding page. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the income of her older son, [redacted], received during the period at issue, was solely for his benefit and so should not be countable in determining her entitlement to payment of death pension. She also contends that inclusion of his income as countable would work a financial hardship on her. The appellant refers to 38 U.S.C.A. § 1543(a)(2) in support of her contention. 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 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 older son’s income must be included as countable for purposes of determining the appellant’s entitlement to payment of death pension benefits for the period prior to July 1992. FINDINGS OF FACT 1. The appellant’s older son, [redacted], was born August [redacted] 1973, and reached the age of 18 years on August [redacted] 1991. 2. After reaching the age of 18 years, [redacted] continued to reside with the appellant, at least until his graduation from high school in May 1992. During this period, he received monthly Social Security income of $381 initially, increased to $499, effective in January 1992. 3. [redacted]’s Social Security income from August 1991 through May 1992 was reasonably available to or for the veteran’s surviving spouse. CONCLUSION OF LAW The income of the appellant’s son, [redacted], is countable in determining her entitlement to death pension, during the period prior to July 1992. 38 U.S.C.A. §§ 1541(g) 1543(a), 5107 (West 1991); 38 C.F.R. §§ 3.23(d), 3.57(a), 3.271 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the appellant has met her burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the appellant in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background The record reflects that the appellant in this case is the veteran’s surviving spouse, who has custody of the veteran’s two sons. The older son, [redacted], was born August [redacted] 1973. At the time he reached the age of 18 years, in August 1991, [redacted] was living with the appellant and was in high school; he graduated in May 1992. He also was receiving monthly Social Security income of $381; this amount apparently increased to $499 in 1992, but was terminated in June 1992 upon his graduation. In addition, both the appellant and her younger son were each receiving monthly Social Security income of $381 in 1991. According to the appellant’s claim for VA death pension benefits, received in December 1991, her entire income for the year 1991 consisted solely of her and her sons’ shares of Social Security benefits, and amounted to $1,143 monthly, or $13,716 annually. Also submitted was information to the effect that the Social Security benefits paid to the appellant were terminated, effective in January 1992, when her younger son, [redacted], attained age 16. However, his benefits were increased to $499 monthly, effective in January 1992. Following the termination of Social Security benefits to [redacted], upon his graduation from high school, the appellant was awarded death pension benefits, effective in July 1992, based solely on [redacted]'s dependency and his Social Security income. In November 1992, the appellant submitted a list of her monthly expenses as of January 1991. She indicated that her monthly living expenses amounted to $588. Analysis In determining the annual income of a surviving spouse for the purpose of death pension, if there is a child of the veteran in the custody of the surviving spouse, that portion of the annual income of the child that is reasonably available to or for the surviving spouse shall be considered as the surviving spouse's income unless to do so would work a hardship on the surviving spouse. 38 U.S.C.A. § 1541(g). In the computation of income for pension purposes, payments of any kind from any source will be counted as income during the 12 month annualization period in which received unless specifically excluded. 38 C.F.R. § 3.271. Payment of death pension shall be denied to a surviving spouse when the corpus of the estate of the surviving spouse is such that, under the circumstances, including consideration of the income of the surviving spouse and the income of any child from whom the surviving spouse is receiving increased pension, it is reasonable that some part of the corpus of such estate be consumed for the surviving spouse’s maintenance. 38 U.S.C.A. § 1543(a)(1). In addition, death pension on account of a child shall be denied when the corpus of such child’s estate is such that under all the circumstances, including consideration of the income of the surviving spouse and such child and the income of any other child for whom the surviving spouse is receiving increased pension, it is reasonable that some portion of the child’s estate be consumed for the child’s maintenance; i.e., such child’s income is countable to the extent that it is reasonably available to or for the surviving spouse, unless to do so would work a hardship on the surviving spouse. During the period such denial remains in effect, such child shall not be considered as the surviving spouse’s child for purposes of this chapter. 38 U.S.C.A. § 1543(a)(2); 38 C.F.R. § 3.23(d)(5). Income shall be considered to be "reasonably available" when it can be readily applied to meet the surviving spouse’s expenses necessary for reasonable family maintenance. "Hardship" shall be held to exist when annual expenses necessary for reasonable family maintenance exceed the sum of annual countable income plus VA pension entitlement. 38 C.F.R. § 3.23(d)(6). The term child means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death, or an illegitimate child, and (1) who is under the age of 18 years, or (2) who, before the reaching age of 18 years, became permanently incapable of self-support; or (3) who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 C.F.R. § 3.57(a)(1). The appellant argued in her substantive appeal that the Social Security income of her son, [redacted], which he received until June 1992, when he graduated from high school, was intended solely for his benefit and support and was not available to her, and so should not be counted with her income in determining her entitlement to death pension. She also contended that the applicable statute, 38 U.S.C.A. § 1543(a)(2), supports her argument, in that it "provides that the corpus of a child’s estate be used for the child’s maintenance." She indicated that that is precisely what [redacted]’s Social Security income was used for. The appellant further argued that the code section further states that while such estate is being used for the child’s maintenance, the child should not be considered to be the surviving spouse’s child for VA purposes. She believes that those provisions indicate that she and her minor child should be considered separately from [redacted], and that only her and her minor child’s income should be counted. In addition, she claims that, counting [redacted]’s income, her total income exceeds the maximum allowable for payment of VA death pension benefits, and so works a financial hardship on her. Initially, the Board notes that, during the period from his eighteenth birthday in August 1991, until he graduated from high school in May 1992, [redacted] met the criteria for status as a child of the veteran: he was over 18 years of age and there is no evidence that he was permanently incapable of self support, but he was still attending school. The provisions of 38 C.F.R. § 3.23(d)(5) state that there is a rebuttable presumption that all of such a child’s income is available to or for the surviving spouse. In this case, the record reflects that [redacted] was living with the appellant and that the appellant was providing total support for him. There is no indication that [redacted] required separate maintenance during the period in question or that his income should be considered differently from that received by the appellant on behalf of his minor brother. The evidence clearly indicates that [redacted]’s income was "reasonably available" to the appellant: it could readily have been applied to meet the appellant’s expenses which were necessary for reasonable family maintenance, and there is no evidence, despite the appellant’s contentions, that his income was not, in fact, so applied. Neither does the evidence support her claim that § 1543 requires use of [redacted]’s income solely for his maintenance; as stated above, there is no indication that separate maintenance was necessary for [redacted], e.g., he was not attending college, with separate, additional expenses for room and board. In regard to the appellant’s contention that inclusion of [redacted]’s income (and denying her death pension) would work a financial hardship on her and her family, the Board notes that her monthly income in 1991, even without counting the death pension benefit to which she might have been entitled as set forth in 38 C.F.R. § 3.23(d)(6), and by her own calculations submitted in November 1992, exceeded her claimed monthly expenses by more than $500. It is clearly evident, therefore, that inclusion of [redacted]’s income would work no financial hardship on her. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the appellant’s claim. Accordingly, the Board concludes that the income of the appellant’s older child, [redacted], is countable for purposes of determining the appellant’s entitlement to payment of death pension for the period prior to July 1992. ORDER The income of the appellant’s child, [redacted], is countable for purposes of determining the appellant’s entitlement to payment of death pension for the period prior to July 1992. (CONTINUED ON NEXT PAGE) 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. It appears from the record that [redacted]’s Social Security income was terminated status as a child of the veteran subsequent to that date and the issue of whethe received after his graduation should be counted with the appellant’s income are time.