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Title 38 Part 3 → Subpart A → §3.274

Title 38 → Chapter I → Part 3 → Subpart A → §3.274

Electronic Code of Federal Regulations e-CFR

Title 38 Part 3 → Subpart A → §3.274

e-CFR data is current as of August 20, 2019

Title 38Chapter IPart 3Subpart A → §3.274


Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation


§3.274   Net worth and VA pension.

(a) Net worth limit. For purposes of entitlement to VA pension, the net worth limit effective October 18, 2018 is $123,600. This limit will be increased by the same percentage as the Social Security increase whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of title II of the Social Security Act (42 U.S.C. 415(i)). VA will publish the current limit on its website at www.benefits.va.gov/pension/.

(b) When a claimant's or beneficiary's net worth exceeds the limit. Except as provided in paragraph (h)(2) of this section, VA will deny or discontinue pension if a claimant's or beneficiary's net worth exceeds the net worth limit in paragraph (a) of this section.

(1) Net worth. Net worth means the sum of a claimant's or beneficiary's assets and annual income.

(2) Asset calculation. VA will calculate a claimant's or beneficiary's assets under this section and §3.275.

(3) Annual income calculation. VA will calculate a claimant's or beneficiary's annual income under §3.271, and will include the annual income of dependents as required by law. See §§3.23(d)(4), 3.23(d)(5), and 3.24 for more information on annual income included when VA calculates a claimant's or beneficiary's pension entitlement rate. In calculating annual income for this purpose, VA will subtract all applicable deductible expenses, to include appropriate prospective medical expenses under §3.272(g).

(4) Example of net worth calculation. For purposes of this example, presume the net worth limit is $123,600. A claimant's assets total $117,000 and annual income is $9,000. Therefore, adding the claimant's annual income to assets produces net worth of $126,000. This amount exceeds the net worth limit.

(c) Assets of other individuals included as claimant's or beneficiary's assets—(1) Claimant or beneficiary is a veteran. A veteran's assets include the assets of the veteran as well as the assets of his or her spouse, if the veteran has a spouse.

(2) Claimant or beneficiary is a surviving spouse. A surviving spouse's assets include only the assets of the surviving spouse.

(3) Claimant or beneficiary is a surviving child. (i) If a surviving child has no custodian or is in the custody of an institution, the child's assets include only the assets of the child.

(ii) If a surviving child has a custodian other than an institution, the child's assets include the assets of the child as well as the assets of the custodian. If the child is in the joint custody of his or her natural or adoptive parent and a stepparent, the child's assets also include the assets of the stepparent. See §3.57(d) for more information on child custody for pension purposes.

(d) How a child's net worth affects a veteran's or surviving spouse's pension entitlement. VA will not consider a child to be a veteran's or surviving spouse's dependent child for pension purposes if the child's net worth exceeds the net worth limit in paragraph (a) of this section.

(1) Dependent child and potential dependent child. For the purposes of this section—

(i) “Dependent child” refers to a child for whom a veteran or a surviving spouse is entitled to an increased maximum annual pension rate.

(ii) “Potential dependent child” refers to a child who is excluded from a veteran's or surviving spouse's pension award solely or partly because of this paragraph (d). References in this section to “dependent child” include a potential dependent child.

(2) Dependent child net worth. A dependent child's net worth is the sum of his or her annual income and the value of his or her assets.

(3) Dependent child asset calculation. VA will calculate the value of a dependent child's assets under this section and §3.275. A dependent child's assets include the child's assets only.

(4) Dependent child annual income calculation. VA will calculate a dependent child's annual income under §3.271, and will include the annual income of the child as well as the annual income of the veteran or surviving spouse that would be included if VA were calculating a pension entitlement rate for the veteran or surviving spouse.

(e) When VA calculates net worth. VA calculates net worth only when:

(1) VA has received—

(i) An original pension claim;

(ii) A new pension claim after a period of non-entitlement;

(iii) A request to establish a new dependent; or

(iv) Information that a veteran's, surviving spouse's, or child's net worth has increased or decreased; and

(2) The claimant or beneficiary meets the other factors necessary for pension entitlement as provided in §3.3(a)(3) and (b)(4).

Note to paragraph (e): If the evidence shows that net worth exceeds the net worth limit, VA may decide the pension claim before determining if the claimant meets other entitlement factors. VA will notify the claimant of the entitlement factors that have not been established.

(f) How net worth decreases. Net worth may decrease in three ways: Assets can decrease, annual income can decrease, or both assets and annual income can decrease.

(1) How assets decrease. A veteran, surviving spouse, or child, or someone acting on their behalf, may decrease assets by spending them on any item or service for which fair market value is received unless the item or items purchased are themselves part of net worth. See §3.276(a)(4) for the definition of “fair market value.” The expenses must be those of the veteran, surviving spouse, or child, or a relative of the veteran, surviving spouse, or child. The relative must be a member or constructive member of the veteran's, surviving spouse's, or child's household.

(2) How annual income decreases. See §§3.271 through 3.273.

(3) Example 1. For purposes of this example, presume the net worth limit is $123,600 and the maximum annual pension rate (MAPR) is $12,000. A claimant has assets of $115,000 and annual income of $9,000. Adding annual income to assets produces a net worth of $124,000, which exceeds the net worth limit. However, the claimant is a patient in a nursing home and pays annual unreimbursed nursing home fees of $29,000. Reasonably predictable unreimbursed medical expenses are deductible from annual income under §3.272(g) to the extent that they exceed 5 percent of the applicable MAPR. VA subtracts the projected expenditures that exceed 5 percent of the applicable MAPR (here, $28,400) from annual income, which decreases annual income to zero. The claimant's net worth is now $115,000; therefore, net worth is within the limit to qualify for VA pension.

(4) Example 2. For purposes of this example, presume the net worth limit is $123,600 and the MAPR is $12,000. A claimant has assets of $123,000 and annual income of $9,500. Adding annual income to assets produces a net worth of $132,500, which exceeds the net worth limit. The claimant pays reasonably predictable annual unreimbursed medical expenses of $9,000. Unreimbursed medical expenses are deductible from annual income under §3.272(g) to the extent that they exceed 5 percent of the applicable MAPR. VA subtracts the projected expenditures that exceed 5 percent of the applicable MAPR (here, $8,400) from annual income, which decreases annual income to $1,100. This decreases net worth to $124,100, which is still over the limit. VA must deny the claim for excessive net worth.

(g) Effective dates of pension entitlement or increased entitlement after a denial, reduction, or discontinuance based on excessive net worth—(1) Scope of paragraph. This paragraph (g) applies when VA has:

(i) Discontinued pension or denied pension entitlement for a veteran, surviving spouse, or surviving child based on the veteran's, surviving spouse's, or surviving child's excessive net worth; or

(ii) Reduced pension or denied increased pension entitlement for a veteran or surviving spouse based on a dependent child's excessive net worth.

(2) Effective date of entitlement or increased entitlement. The effective date of entitlement or increased entitlement is the day net worth ceases to exceed the limit. For this effective date to apply, the claimant or beneficiary must submit a certified statement that net worth has decreased and VA must receive the certified statement before the pension claim has become finally adjudicated under §3.160. This means that VA must receive the certified statement within 1 year after its decision notice to the claimant concerning the denial, reduction, or discontinuance unless the claimant appeals VA's decision. Otherwise, the effective date is the date VA receives a new pension claim. In accordance with §3.277(a), VA may require the claimant or beneficiary to submit additional evidence as the individual circumstances may require.

(h) Reduction or discontinuance of beneficiary's pension entitlement based on excessive net worth—(1) Effective date of reduction or discontinuance. When an increase in a beneficiary's or dependent child's net worth results in a pension reduction or discontinuance because net worth exceeds the limit, the effective date of reduction or discontinuance is the last day of the calendar year in which net worth exceeds the limit.

(2) Net worth decreases before the effective date. If net worth decreases to the limit or below the limit before the effective date provided in paragraph (h)(1) of this section, VA will not reduce or discontinue the pension award on the basis of excessive net worth.

(i) Additional effective-date provisions for dependent children—(1) Establishing a dependent child on veteran's or surviving spouse's pension award results in increased pension entitlement. When establishing a dependent child on a veteran's or surviving spouse's pension award results in increased pension entitlement for the veteran or surviving spouse, VA will apply the effective-date provisions in paragraphs (g) and (h) of this section.

(2) Establishing a dependent child on veteran's or surviving spouse's pension award results in decreased pension entitlement. (i) When a dependent child's non-excessive net worth results in decreased pension entitlement for the veteran or surviving spouse, the effective date of the decreased pension entitlement rate (i.e., VA action to add the child to the award) is the end of the year that the child's net worth decreases.

(ii) When a dependent child's excessive net worth results in increased pension entitlement for the veteran or surviving spouse, the effective date of the increased pension entitlement rate (i.e., VA action to remove the child from the award) is the date that VA receives a claim for an increased rate based on the child's net worth increase.

(Authority: 38 U.S.C. 1522, 1543, 5110, 5112)

[83 FR 47269, Sept 18, 2018]