PREC 1-00 Countable Income for Death Pension Purposes--Deduction of Expenses Paid for Veteran's Last Illness Subsequent to Veteran's Death, but Prior to Date of Entitlement Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-00, VAOPGCPREC 1-00, 2000 QUESTIONS PRESENTED: a. Is the last sentence of 38 C.F.R. § 3.272(h) consistent with 38 U.S.C. § 1503(a)(3) in providing that expenses of a veteran’s last illness paid by a surviving spouse subsequent to the veteran’s death, but prior to the date of entitlement to improved death pension, may not be excluded from countable income for the purpose of determining death pension entitlement? b. If so: (1) what is the basis for the differing treatment accorded by section 3.272(h) to expenses paid prior to the date of death and those paid after the date of death but before the date of entitlement; and, (2) does Congress’ intent in enacting Pub. L. No. 98-369 to limit retroactive payments of pension in the case of claimants who file claims more than 45 days after the date of a veteran’s death provide an adequate basis for prohibiting consideration of expenses in determining prospective entitlement for the period following the date of claim? HELD: a. The last sentence of 38 C.F.R. § 3.272(h) is inconsistent with 38 U.S.C. § 1503(a)(3) in providing that expenses of a veteran’s last illness paid by the veteran’s surviving spouse subsequent to the veteran’s death, but prior to the date of the surviving spouse’s entitlement to death pension, may not be deducted from countable income for the purpose of determining entitlement to improved death pension. VA may not rely upon the last sentence of 38 C.F.R. § 3.272(h) as a basis for denying a death pension claim or reducing the amount of benefits payable. b. (1) There is no basis for the differing treatment currently accorded under 38 C.F.R. § 3.272(h) for expenses of a veteran’s last illness paid prior to the date of a veteran’s death and those paid after the date of death but before the date of a surviving spouse’s entitlement to death pension. (2) Congress’ intent in enacting Pub. L. No. 98-369 to limit retroactive payments of pension in the case of claimants who file claims more than 45 days after the date of a veteran’s death does not provide an adequate basis for prohibiting consideration of expenses of a veteran’s last ill- ness in determining prospective entitlement for the period following the date of a claim for improved death pension. |
