**Veterans Benefits Administration M21-1, Part IV**

**Department of Veterans Affairs Change 212**

**Washington, DC 20420 December 30, 2004**

Veterans Benefits Manual M21-1, Part IV, "Authorization Procedures," is
changed as follows:

**Pages 16-IX-3 through 16-IX-4:** Remove these pages and substitute
pages 16-IX-3 through 16-IX-4 attached.

Paragraph 16.41b(18) has been revised to state that payments received
under Annuities for Certain Military Surviving Spouses (ACMSS) is
countable income for VA purposes.

**Pages 26-IV-1 through 26-IV-2:** Remove these pages and substitute
pages 26-IV-1 through 26-IV-2 attached.

Paragraph 26.24d has been added to provide general information regarding
payments received under Annuities for Certain Military Surviving Spouses
(ACMSS). The previous paragraph 26.24d has been moved to 26.24e.

Paragraph 26.24e has been revised to state that payments received under
ACMSS will be considered income for VA purposes.

By Direction of the Under Secretary for Benefits

Renée Szybala, Director

> Compensation and Pension Service

Distribution: RPC: 2068

FD: EX: ASO and AR (included in RPC 2068)

LOCAL REPRODUCTION AUTHORIZED

# 

# 

**December 30, 2004 M21-1, Part IV**

**Change 212**

\(18\) **Survivor Benefit Annuity Under Section 653, Public Law
100-456.** Amounts paid by the Department of Defense under Public Law
100-456 to the surviving spouse of a veteran who died prior to November
1, 1953, are not countable. However, Survivor Benefit Plan (SBP) annuity
payments, SBP Minimum Income Widower/ers Annuity Plan (MIW-SBP)
payments, and Annuities for Certain Military Surviving Spouses (ACMSS)
are countable. See paragraph 26.25.

\(19\) **California State Renter\'s Credit.** This is considered to be a
welfare payment under 38 CFR 3.272(a) and is not countable.

\(20\) **Relocation Expenses.** Relocation expenses paid under the
Uniform Relocation Assistance Act (42 U.S.C. 4601) to assist persons
displaced by Federal and Federally-assisted projects are not countable.

\(21\) **Disaster Relief Payments.** Voluntary payments in the nature of
relief after widespread national disaster such as floods and hurricanes
are considered to be welfare under 38 CFR 3.272(a) and are not
countable. This exclusion does not apply to disaster relief payments
made in a commercial context (e.g., drought relief to farmers). If the
operator of a business receives disaster relief, it must be treated as
any other business income. See paragraph 16.35a.

\(22\) **Farmers Home Administration Construction Grants.** Grants made
by the Farmers Home Administration to needy families in rural areas for
repairs or improvements to structures are not countable.

\(23\) **Insurance Dividends.** Insurance dividends are considered to be
a return of excess premium payments and are not countable income.
However, if insurance dividends are left on deposit, any interest earned
is countable. Also, Total Disability Insurance payments (cash payments
to totally disabled policyholders) are countable income.

\(24\) **Timber Sales.** Occasional sales of timber are considered a
conversion of assets unless the claimant is in the business of selling
timber in which case proceeds from the sale of timber constitute
business income.

\(25\) **Payments to Foster Parents.** Do not count as income payments
made by a state or subdivision of a state to foster parents for care of
foster children.

\(26\) **Joint Accounts.** If a joint owner of property (such as a bank
account) acquires the other joint owner\'s share because of the death of
that person, the amount acquired is not countable income. See 38 CFR
3.272(f). However, if one joint owner transfers his or her share of
property to another joint owner (Improved pension claimant) during the
transferor\'s lifetime, the amount acquired is countable as a gift of
property. See subparagraph c(8) below.

\(27\) **Distributions to Members of the Seminole Nation under Public
Law 101-277.** These distributions are not countable since they
represent compensation paid to the Seminole Nation for the cession of
land.

\(28\) **Redress Payments to WW II Japanese Internees.** These payments
are not countable income.

\(29\) **Proceeds of Cashed-In Life Insurance Policies.** These payments
are not countable to the extent that they represent return of premiums.
However, they are countable to the extent that they represent interest
on the policy holder\'s contributions. Ask the claimant to furnish a
statement from the insurance company breaking down the payment between
interest and return of premiums. If the claimant does not furnish the
statement, count the entire amount.

**16-IX-3**

**M21-1, Part IV December 30, 2004**

**Change 212**

\(30\) **VA Burial Benefits.** VA burial benefits are not countable
income. However, if a beneficiary claims a final expense deduction
(paragraph 16.32) and subsequently receives VA burial benefits as
reimbursement for paying those same expenses, adjust the award under
paragraph 16.32i.

\(31\) **Interest on Irrevocable Burial Trusts.** Certain prepaid burial
plans (often characterized as irrevocable burial trusts) earn interest
which is added to the value of the policy to offset the effects of
inflation. Typically, the interest earned is not available to the holder
of the policy. If interest on such a burial plan is not available to the
VA claimant, do not count it as income.

\(32\) **Pension as an Accrued Benefit**. In [Martin v.
Brown]{.underline}, 6 Vet. App. 272 (1994), the Court held that when
pension benefits are paid as an accrued benefit, that payment meets the
pension-income-exclusion provision of 38 U.S.C. 1503(a)(2), and,
therefore, is not income for VA purposes.

\(33\) **RECA Payments**. Payments received under the Radiation Exposure
Compensation Act (RECA), Public Law 101-426, are not income for VA
purposes.

c\. **Inclusions.** Income from earnings, retirement or survivors\'
programs, interest, dividends, life insurance, unemployment compensation
and operation of a business are all countable income for Improved
pension. The following are additional sources of income which have been
determined to be countable.

\(1\) **Benefits Subject to Garnishment.** If a claimant\'s benefits
(such as Social Security) are subject to involuntary withholding due to
legal action initiated by a third party, count the entire amount even
though the claimant does not receive it all. Note that if benefits are
withheld to recoup an overpayment of the benefit, only the actual amount
received is countable.

\(2\) **Social Security Lump-Sum Death Benefit.** This is countable like
any other Social Security benefit.

\(3\) **Individual Retirement Account (IRA) Distributions.** When an IRA
or similar instrument starts paying benefits, the entire amount is
countable even though it represents a partial return of principal.

\(4\) **Withdrawal of Contributions to Retirement Fund.** If a claimant
receives a distribution of retirement benefits, the entire amount
received is countable. This is the case even though all or part of the
distribution might represent a return of withheld wages which were
previously counted as IVAP as part of the claimant\'s gross wages.

\(5\) **Department of Labor Employment Programs.** Income received by
participants in programs operated by the Department of Labor such as the
Green Thumb Program and the Older Americans Community Service Employment
Program is countable.

\(6\) **VA Benefits**

\(a\) VA education or compensation (including DIC) benefits are
countable. Also, VA benefits paid to a claimant as accrued amounts based
on the entitlement and death of another beneficiary are countable as
income, **EXCEPT** for pension benefits paid as an accrued amount. See
subparagraph b(32) above.

**16-IX-4**

# 

# December 30, 2004 M21-1, Part IV

###  Change 212

**SUBCHAPTER IV. SERVICE DEPARTMENTS - THE**

**SURVIVOR BENEFIT PLAN**

**26.24 SCOPE**

a\. **General.** Effective September 21, 1972, the Survivor Benefit Plan
(SBP) was established under Public Law 92-425 for retired service
personnel and commissioned officers of the Public Health Service and the
National Oceanic and Atmospheric Administration.

b\. **SBP Annuity.** Eligible persons can designate all or a part of
retired pay as a basis for survivors\' annuity, payable to a surviving
spouse, children, or persons having an insurable interest in the
retiree. The designated beneficiary will receive 55 percent of the base
amount selected.

c\. **SBP Minimum Income Annuity Plan.** The SBP alternatively provided
for a guaranteed minimum income for the limited class of eligible
surviving spouses of military retirees who did not participate in the
Plan and who died prior to September 21, 1973. This plan is identified
as an annuity paid to Minimum Income Widow/ers and referred to as the
MIW-SBP. To be eligible, the surviving spouse must not be remarried,
must be eligible for VA death pension, and must have income for VA
purposes, excluding any SBP annuity, of less than the MIW-SBP annuity
limitation.

d\. **Annuities for Certain Military Surviving Spouses (ACMSS).**
Certain widow(er)s of military retirees are eligible to draw an annuity
under this program which was established under Public Law 105-85 on
November 18, 1997. The program was established because a portion of the
widows(ers) of military retiree population were "forgotten" when SBP was
created. Hence, ACMSS is often referred to as the "forgotten widows
annuity." There are two categories of surviving spouses who qualify for
ACMSS:

(1) A surviving spouse of a retired (regular or reserve) member who died
    before March 21, 1974,

    and who was already drawing retired pay at the time of death.

(2) A surviving spouse of a qualified reserve member (i.e., one who had
    completed 20 qualifying

years of service toward retired pay) who was not yet in receipt of
retired pay because he/she had not reached age 60. The qualified reserve
member must have died prior to October 1, 1978.

e\. **SBP Relationship to VA Benefits**

\(1\) **Pension Entitlement.** Any payments under SBP, MIW-SBP, and
ACMSS will be considered \"Retirement or Annuity\" income for VA pension
purposes (38 CFR 3.261(a)(14)).

\(2\) **DIC Entitlement.** Payment of SBP survivor\'s annuity to a
surviving spouse or payment of ACMSS is subject to reduction or
discontinuance if he or she becomes entitled to DIC. Concurrent payment
of SBP and DIC to children and parents is not prohibited.

**26.25 DEATH PENSION CASES - SBP MINIMUM INCOME PLAN**

a\. **Referrals by Service Department for Eligibility Determination**

\(1\) If a surviving spouse meets eligibility requirements for the SBP
minimum income plan (par. 26.24c) and has applied to the Defense
Department for such benefits, the service department will forward an
original and one copy of DD Form 1895, Request for Veterans
Administration Pension and Annual Income Information, together with a
copy of DD Form 1985, Survivor Benefit Plan, Minimum Income Claim.

\(2\) If Retired Servicemen\'s Family Protection Plan (RSFPP) benefits
are payable, the service department will partially complete the
\"Eligibility Determination\" portion of DD Form 1895, showing
subtraction of the RSFPP annuity (which is not counted in VA income
computations for Section 306 or

**26-IV-1**

**M21-1, Part IV December 30, 2004**

**Change 212**

Old Law cases - 38 CFR 3.261(a)(14)) from the basic income limitation,
and establishing the actual income limit which can be supplemented by
the MIW-SBP annuity.

\(3\) In Improved Pension cases, RSFPP benefits are countable as income
for VA purposes. Enter RSFPP annuities as type M retirement (type 0 if
more than one retirement benefit is involved) and use special law code
06.

b\. **Eligibility Determinations by Adjudication**

\(1\) **Surviving Spouse Not Entitled to VA Pension.** Appropriately
complete the items, \"Is Widow Entitled to VA Pension?\" and \"Reason
Widow Not Entitled to VA Pension\" of DD Form 1895, checking the box
\"Income Exceeds,\" when VA pension is not payable because of income in
excess of the applicable annual income limitation. If \"other\" is
checked, briefly state the reason for the nonentitlement to VA pension
in \"Remarks,\" e.g., \"Excessive Net Worth,\" \"Relationship Not
Established.\"

\(2\) **Surviving Spouse Entitled to VA Pension.** In addition to
showing entitlement to VA pension on DD Form 1895, complete the
\"Entitlement Computation\" part of the form.

**NOTE:** Use this form only in Improved Pension cases. Use locally
generated letters in Section 306 or Old Law cases.

\(a\) In the \"Current Year\" column, insert the four-digit net
countable income for VA purposes (IVAP) on which pension payments are
currently being made. Subtract this amount from the dollar amount as
previously entered by the service department. Enter the balance as the
MIW-SBP payable. If the amount entered as the IVAP equals or exceeds the
limit entered by the service department, enter \"none\" on the line for
MIW-SBP payable.

\(b\) If a change in the surviving spouse\'s income is anticipated for
the following year, complete these lines for IVAP and MIW-SBP payable,
inserting the year in the caption under the \"next year\" column as
under subparagraph (a) above.

**EXAMPLE:** Surviving spouse\'s 1992 income for VA purposes is \$1000.
Anticipated countable income for 1993 is \$4,500. The eligibility
determination of DD Form 1895 would be completed as follows:

+---+---+--------------------------+-----------+-----+-----------------+
| E |   |                          |           |     |                 |
| L |   |                          |           |     |                 |
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| A |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| D |   |                          |           |     |                 |
| 1 |   |                          |           |     |                 |
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| B |   |                          |           |     |                 |
| Y |   |                          |           |     |                 |
| V |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| ) |   |                          |           |     |                 |
| * |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 1 |   |                          | 2\.       |     |                 |
| \ |   |                          | REASON    |     |                 |
| . |   |                          | WIDOW NOT |     |                 |
| I |   |                          | ENTITLED  |     |                 |
| S |   |                          | TO VA     |     |                 |
| W |   |                          | PENSION   |     |                 |
| I |   |                          |           |     |                 |
| D |   |                          | ![]       |     |                 |
| O |   |                          | (media/im |     |                 |
| W |   |                          | age3.emf) |     |                 |
| E |   |                          | INCOME    |     |                 |
| N |   |                          | EXCEEDS   |     |                 |
| T |   |                          | ![]       |     |                 |
| I |   |                          | (media/im |     |                 |
| T |   |                          | age4.emf) |     |                 |
| L |   |                          | OTHER     |     |                 |
| E |   |                          | (SPECIFY  |     |                 |
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| ( |   |                          |           |     |                 |
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| F |   |                          |           |     |                 |
| \ |   |                          |           |     |                 |
| " |   |                          |           |     |                 |
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| \ |   |                          |           |     |                 |
| " |   |                          |           |     |                 |
| C |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| M |   |                          |           |     |                 |
| P |   |                          |           |     |                 |
| L |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
| T |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| T |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
| M |   |                          |           |     |                 |
| 2 |   |                          |           |     |                 |
| ) |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| E |   |                          | CURRENT   |     | NEXT YEAR       |
| N |   |                          | YEAR IF   |     | (1993) OR       |
| T |   |                          | CHANGED   |     | CURRENT AND     |
| I |   |                          | NEXT YEAR |     | CONTINUING      |
| T |   |                          | OR LESS   |     |                 |
| L |   |                          | THAN FULL |     |                 |
| E |   |                          | YEAR      |     |                 |
| M |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| T |   |                          |           |     |                 |
| C |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| M |   |                          |           |     |                 |
| P |   |                          |           |     |                 |
| U |   |                          |           |     |                 |
| T |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| T |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 1 | L |                          | \$4,918   |     | \$4918          |
| A | I |                          |           |     |                 |
|   | M |                          |           |     |                 |
|   | I |                          |           |     |                 |
|   | T |                          |           |     |                 |
|   | O |                          |           |     |                 |
|   | N |                          |           |     |                 |
|   | I |                          |           |     |                 |
|   | N |                          |           |     |                 |
|   | C |                          |           |     |                 |
|   | O |                          |           |     |                 |
|   | M |                          |           |     |                 |
|   | E |                          |           |     |                 |
|   | T |                          |           |     |                 |
|   | O |                          |           |     |                 |
|   | B |                          |           |     |                 |
|   | E |                          |           |     |                 |
|   | S |                          |           |     |                 |
|   | U |                          |           |     |                 |
|   | P |                          |           |     |                 |
|   | P |                          |           |     |                 |
|   | L |                          |           |     |                 |
|   | E |                          |           |     |                 |
|   | M |                          |           |     |                 |
|   | E |                          |           |     |                 |
|   | N |                          |           |     |                 |
|   | T |                          |           |     |                 |
|   | E |                          |           |     |                 |
|   | D |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 1 |   | LESS RSFPP               | \- 480    |     | \- 480          |
| B |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 1 | D | LIMIT ON INCOME (EXCEPT  | \$4438    |     | \$4438          |
| C | O | PENSION) FOR SBP         |           |     |                 |
|   | D | PURPOSES (LINE A MINUS   |           |     |                 |
|   |   | B)                       |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 1 | V | INCOME FOR VA PURPOSES   | \- 1000   |     | -4500           |
| D | A | BEFORE SBP               |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 1 |   | SBP PAYABLE (LINE C      | \$3438    |     | \$ NONE         |
| E |   | MINUS D)                 |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 3 |   |                          |           |     |                 |
| \ |   |                          |           |     |                 |
| . |   |                          |           |     |                 |
| R |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
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| A |   |                          |           |     |                 |
| R |   |                          |           |     |                 |
| K |   |                          |           |     |                 |
| S |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| 5 |   |                          |           | 4A. |                 |
| \ |   |                          |           | VA  |                 |
| . |   |                          |           | OFF |                 |
| R |   |                          |           | ICE |                 |
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| P |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| Y |   |                          |           |     |                 |
| D |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| V |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| S |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| U |   |                          |           | 4B. |                 |
| . |   |                          |           | SIG |                 |
| S |   |                          |           | NAT |                 |
| . |   |                          |           | URE |                 |
| A |   |                          |           |     |                 |
| R |   |                          |           |     |                 |
| M |   |                          |           |     |                 |
| Y |   |                          |           |     |                 |
| F |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| C |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
| S |   |                          |           |     |                 |
| U |   |                          |           |     |                 |
| P |   |                          |           |     |                 |
| P |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| R |   |                          |           |     |                 |
| T |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| G |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| C |   |                          |           |     |                 |
| Y |   |                          |           |     |                 |
|   |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| D |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| P |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| L |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| S |   |                          |           |     |                 |
| , |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| D |   |                          |           |     |                 |
| I |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| N |   |                          |           |     |                 |
| A |   |                          |           |     |                 |
| 4 |   |                          |           |     |                 |
| 6 |   |                          |           |     |                 |
| 2 |   |                          |           |     |                 |
| 4 |   |                          |           |     |                 |
| 9 |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+
|   |   |                          |           | 4C  |                 |
|   |   |                          |           | D   |                 |
|   |   |                          |           | ATE |                 |
+---+---+--------------------------+-----------+-----+-----------------+
| * |   |                          |           |     |                 |
| * |   |                          |           |     |                 |
| D |   |                          |           |     |                 |
| D |   |                          |           |     |                 |
| F |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| R |   |                          |           |     |                 |
| M |   |                          |           |     |                 |
| 1 |   |                          |           |     |                 |
| 8 |   |                          |           |     |                 |
| 9 |   |                          |           |     |                 |
| 5 |   |                          |           |     |                 |
| * |   |                          |           |     |                 |
| * |   |                          |           |     |                 |
| O |   |                          |           |     |                 |
| / |   |                          |           |     |                 |
| P |   |                          |           |     |                 |
| , |   |                          |           |     |                 |
| 1 |   |                          |           |     |                 |
| D |   |                          |           |     |                 |
| E |   |                          |           |     |                 |
| C |   |                          |           |     |                 |
| 7 |   |                          |           |     |                 |
| 2 |   |                          |           |     |                 |
+---+---+--------------------------+-----------+-----+-----------------+

**26-IV-2**