BVA9505987 DOCKET NO. 93-09 627 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to concurrent payment of Social Security benefits and benefits paid pursuant to Section 156 of Public Law 97-377, the Restored Entitlement Program for Survivors (REPS). ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The appellant appealed that determination to the BVA and the case was received at the Board in May 1993. The veteran, who had active service from April 1945 to December 1948, and from September 1951 to June 1971, died in April 1986 due to a disability which was incurred in service prior to August 13, 1981. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO was incorrect in not granting the benefit sought on appeal. She maintains, in substance, that REPS benefits are payable in addition to any other benefits she is entitled to receive. The appellant reports that her Social Security benefits as a mother terminated when her child reached 16 years of age and that thereafter she was entitled to reduced widows' benefits. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence does not support the appellant's claim for concurrent payment of Social Security benefits and REPS benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant received Social Security mothers' benefits until her child reached 16 years of age and currently receives Social Security widows' benefits. 3. The Social Security widows' benefit is greater than the calculated REPS benefit. CONCLUSION OF LAW The requirements for concurrent payment of Social Security benefits and REPS benefits have not been meet. 38 U.S.C.A. § 5107 (West 1991); 20 C.F.R. §§ 404.335, 404.339, 404.407 (1994); 38 C.F.R. § 3.812 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The basic facts in this case are not in dispute. The appellant received "mothers" benefits from the Social Security Administration pursuant to 20 C.F.R. § 404.339 (1994) as the widow of the veteran having a child in her care who was under 16 years of age. In May 1991 when the appellant's child reached 16 years of age, the appellant's entitlement to mothers' benefits ceased and she became entitled to "widows'" benefits from the Social Security Administration pursuant to 20 C.F.R. § 404.435 (1994). The appellant contends that she is entitled to payment of both REPS benefits and Social Security widows' benefits. While the appellant is entitled to receive VA benefits, such as dependency and indemnity compensation, and REPS benefits, she is not entitled to receive both REPS and Social Security benefits where, as here, the Social Security benefit payable is greater than the calculated REPS benefit. REPS benefits are a replacement for certain Social Security benefits which were either reduced or terminated by Congress. "In making[ ]eligibility determinations [for REPS benefits] VA shall apply the provisions of the Social Security Act, and any regulations promulgated pursuant thereto, as in effect during the claimant's period of eligibility" 38 C.F.R. § 3.812(a)(2) (1994). Under Social Security regulations the appellant is not entitled to payment of both widows' and mothers' monthly benefits. See 20 C.F.R. § 404.407(b) (1994). Under that regulation if an individual is entitled to widows' benefits and any other monthly benefit, except old age insurance benefits, the other monthly benefit "shall be reduced, but not below zero, by an amount equal to such widows' or widowers' insurance benefit...." Id. However, as noted above, in this case, the amount of Social Security widows' benefits payable actually exceeds the amount of calculated REPS benefits. Accordingly, the Board concludes that the appellant is not entitled to concurrent payment of Social Security benefits and any amount of REPS benefits. ORDER Concurrent payment of REPS and Social Security benefits is denied. JACQUELINE E. MONROE 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.