Citation Nr: 1600777 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 15-13 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Propriety of the reduction in nonservice-connected pension from January 15, 2013, until March 7, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from July 1954 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in Milwaukee, Minnesota. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in October 2015. A transcript of the hearing has been associated with the claims file. The issues of service connection for four disabilities are the subject of a separate decision under a different docket number, and that decision will be sent to the Veteran and his representative under separate cover. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's pension was reduced because he became a resident of VA community living care on January 15, 2013, and notice of the proposed reduction was sent on June 28, 2013. 2. A final rating action was issued on April 9, 2014, nearly one year after the proposed reduction, informing the Veteran that his pension was reduced to $144 on March 1, 2013, which resulted from discontinuance of the aid and attendance allowance, and to $90 effective May 1, 2013. 3. His full pension was restored effective March 7, 2015. CONCLUSION OF LAW The reduction in nonservice-connected pension from January 15, 2013, until March 7, 2015, was proper. 38 U.S.C.A. § 5503 (West 2014); 38 C.F.R. §§ 3.551(e), 3.552 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran maintains that his pension should not have been reduced from January 15, 2013, until March 7, 2015. A. Applicable Law Pension is subject to reduction as specified below when a veteran who has neither spouse, child nor dependent parent is hospitalized, unless the veteran is hospitalized for Hansen's disease. The provisions of this section apply to initial periods of hospitalization and to readmissions following discharge from a prior period of hospitalization. If the veteran is hospitalized for observation and examination, the date treatment began is considered the date of admission. Special rules governing discontinuance of aid and attendance allowance are contained in §3.552. Except as otherwise indicated the terms "hospitalized" and "hospitalization" in §§3.551 through 3.556 mean: (1) Hospital treatment in a Department of Veterans Affairs hospital or in any hospital at Department of Veterans Affairs expense; (2) Institutional, domiciliary or nursing home care in a Department of Veterans Affairs institution or domiciliary or at Department of Veterans Affairs expense. 38 C.F.R. § 3.551(a). Improved pension after January 31, 1990. Where any veteran having neither spouse nor child, or any veteran who is married or has a child and is receiving pension as a veteran without dependents, is furnished domiciliary or nursing home care by VA, no pension in excess of $90 monthly shall be paid to or for the veteran for any period after the end of the third full calendar month following the month of admission for such care. 38 C.F.R. § 3.551(e)(1). Effective February 1, 1990, reductions of improved pension based on admissions or readmissions to VA hospitals or any hospital at VA expense shall no longer be made except when required under the provisions of 38 CFR 3.552. 38 C.F.R. § 3.551(e)(5). When a veteran who is already entitled to the aid and attendance allowance is hospitalized, the additional compensation or increased pension for aid and attendance shall be discontinued as provided in paragraph (b) of this section except as to disabilities specified in paragraph (a)(2) of this section. (See paragraph (k) of this section for rules applicable to a veteran who establishes entitlement to the aid and attendance allowance on or after date of admission to hospitalization). 38 C.F.R. § 3.552(a)(1). The allowance for aid and attendance will be continued during hospitalization where the disability is paraplegia involving paralysis of both lower extremities together with loss of anal and bladder sphincter control, or Hansen's disease, except where discontinuance is required by paragraph (b)(2) of this section. In addition, in pension cases only, the aid and attendance allowance will be continued where the pensionable disability is blindness (visual acuity 5/200 or less) or concentric contraction of visual field to 5 degrees or less. Awards are, however, subject to the provisions of §3.551 (except where the disabling condition is Hansen's disease). 38 C.F.R. § 3.552(a)(2). Where a change in disability or employability warrants a reduction or discontinuance of pension payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that pension benefits should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which the final rating action is approved. 38 C.F.R. § 3.105(f). B. Discussion In this case, the reduction was proper. His pension was reduced because the Veteran became a resident of VA community living care on January 15, 2013. Notice of the proposed reduction was sent on June 28, 2013. A final rating action was issued nearly one year later, on April 9, 2014, informing the Veteran that his pension was reduced to $144 on March 1, 2013, which resulted from discontinuance of the aid and attendance allowance, and to $90 effective May 1, 2013. According to a May 28, 2015 RO email, the Veteran was released from Community Living Center at the Dallas VA on March 7, 2015, and a June 2, 2015 notification letter informed him that his full pension had been restored effective March 7, 2015. These reductions were made consistent with 3.552(b) and 3.551(e). The Veteran was admitted to a VA Community Living Center, which is a VA nursing home. See VA Healthcare, Geriatrics and Extended Care, http://www.va.gov/geriatrics/guide/longtermcare/va_community_living_centers.asp (A Community Living Center (VA Nursing Home) used to be called a nursing home.). The first staged reduction, which was made effective on March 1, 2013, was discontinued effective the last day of the month( February 2013) following the month (January 2013) in which the Veteran was admitted for hospitalization at VA. See 38 C.F.R. § 3.552(b). The second staged reduction, effective on May 1, 2013, was made after the end of the third full calendar month (April 2013) following the month of admission (January 2013) for such care. See 38 C.F.R. § 3.551(e). The April 2014 final rating action made these reductions retroactive as directed by 38 C.F.R. § 3.551(e) and § 3.552(b). Unlike a permanent reduction in pension, these regulations require a temporary withholding of the full amount of pension payable during a nursing home stay. Therefore, the retroactive reductions were not made inconsistent with 38 C.F.R. § 3.105(e). See, e.g., Shephard v. Shinseki, 26 Vet. App. 159, 168 (2013) (reductions or discontinuances of an award are distinct from reductions in payment of awarded compensation); see also Snyder v. Nicholson, 489 F.3d 1213, 1218 (Fed. Cir. 2007) (The difference between awarded compensation and payable compensation is analogous to the difference between gross salary and net salary); Rossiello v. Principi, 3 Vet. App. 430, 433 (1992) (a 100 percent rating ceases to exist by operation of the automatic reduction directed in the diagnostic code). At the Board hearing, the Veteran argued that his pension should not have been reduced because he had paid the debt that was owed. This appears to be a misunderstanding. His pension was not reduced because he owed a debt. Rather, a debt was created because his pension was reduced upon his hospitalization. Therefore, the repayment of the debt has no bearing on the propriety of the initial reductions. Furthermore, the Veteran was notified of the debt in April 2014. He disputed the creation of the debt in April 2015. The AOJ made a decision in July 2015 denying a waiver of the debt because he did not apply for a waiver within 180 days of the April 2014 decision, citing 38 U.S.C.A. § 5302(a). At the Board hearing, the Veteran indicated that he talked to his representative about challenging the debt, but the representative clarified that no waiver request was submitted. See Board Hr'g Tr. 12. As such, the Board has no jurisdictional authority to take any further action on the issues involving the creation or waiver of the overpayment. Because the reduction in nonservice-connected pension from January 15, 2013, until March 7, 2015, was proper, the appeal is denied. The Board must deny the appeal as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) are not for application. The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Here, the law is dispositive of the issue as the facts are not in dispute. Therefore, the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER The reduction in nonservice-connected pension from January 15, 2013, until March 7, 2015, was proper. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs