Citation Nr: 0621010 Decision Date: 07/18/06 Archive Date: 07/26/06 DOCKET NO. 03-02 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether the veteran's child, K.A.M., is entitled to an apportioned share of the veteran's Department of Veterans Affairs nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active military service from January 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2001 decision letter by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Paul, Minnesota, in which the RO denied apportionment of the incarcerated veteran's VA nonservice- connected disability pension benefits for the benefit of his dependent child on the ground that the income of the veteran's estranged spouse, who was the natural mother and custodian of his child, was excessive. FINDING OF FACT The custodian of the veteran's daughter had an annual income that exceeded the maximum allowable for a spouse and child of an incarcerated veteran. CONCLUSION OF LAW Entitlement to an apportionment of VA nonservice-connected disability pension benefits of an incarcerated veteran is not warranted based upon excessive income. 38 U.S.C.A. §§ 5103A, 5107, 5307 (West 2002); 38 C.F.R. §§ 3.450, 3.666 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the claim of whether the veteran's child, K.A.M., is entitled to an apportioned share of the veteran's VA nonservice-connected disability pension benefits, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2005). In December 2004, the RO sent the veteran a letter in which he was notified of the types of evidence he needed to submit, and the development the VA would undertake. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letter specifically informed the appellant what was needed from him and what VA would obtain on his behalf. Id. For example, as per the Board's October 2004 remand decision, the RO informed the veteran of the maximum allowable annual income for death pension rate for a surviving spouse and child for the years 2000, 2001, 2002, 2003, and 2004. The RO also requested that the veteran complete and return the enclosed Income Net Worth and Employment Statement (VA Form 21-527), with his most current information. In addition, in response to the veteran's December 2005 statement where he noted that in 2002 and 2003, his daughter underwent cancer surgery and treatment which caused economic hardship for his wife and child, the RO sent the veteran a letter in January 2006 and requested that he provide them with his wife's unreimbursed medical expenses for the years 2000, 2001, and 2002. The RO requested that the veteran report the unreimbursed amounts; a form for each year was enclosed. The evidence of record is negative for a response from the veteran. In this regard, the Board wishes to emphasize that "[i]f a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Woody v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). In the present case, the Board notes that it was not until after the original decision letter on appeal was promulgated did the RO provide notice to the appellant regarding the duty to notify him of the evidence he must provide, and the evidence that VA would obtain on his behalf. See Pelegrini v. Principi, 17 Vet. App. 412 (2004). Nevertheless, the Board observes that in regard to the issue on appeal, the veteran has been afforded the opportunity to present evidence and argument in support of the claim. Quartuccio, 16 Vet. App. at 187. Moreover, the statement of the case and supplemental statements of the case have notified the veteran of the issue on appeal, the evidence considered, the adjudicative actions taken, the pertinent law and regulations governing apportionments of pension benefits of incarcerated veterans, as well as income computation, the decision reached, and the reasons and bases for that decision. In addition, by the December 2004 letter from the RO to the veteran, the RO informed the veteran of VA's duty to assist him by obtaining all evidence in the custody of military authorities or maintained by any other Federal, State, or local government agency, as well as any medical, employment, or other non-government records which were pertinent or specific to that claim. Hence, to allow the appeal to continue would not be prejudicial error to the claimant. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran [appellant] regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Thus, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Generally, any or all of the VA disability pension benefits payable on account of a veteran may be apportioned on behalf of a child not residing with the veteran if he is not reasonably discharging his responsibility for that child's support. 38 C.F.R. § 3.450. Special rules govern the apportionment of VA disability pension benefits payable on account of incarcerated veterans. Payment may be made to the spouse or child of an incarcerated veteran only if the annual income of the spouse or child is such that death pension would be payable. 38 C.F.R. § 3.666. The basic facts in this case are not in dispute. In September 2000, the veteran was incarcerated. By a November 2000 rating action, the RO granted the veteran's claim for entitlement to a permanent and total rating for nonservice- connected pension benefits. In February 2001, the veteran filed a claim for an apportionment of his nonservice-connected pension benefits on behalf of his minor child, K.A.M. The veteran noted that his child was living with his estranged wife, who was also the natural mother of his child. In a VA Form 21-527, Income-Net Worth and Employment Statement, received by the RO in June 2000, the veteran listed his wife's total wages as $18,000. In an August 2001 decision letter, the RO denied apportionment of the incarcerated veteran's VA nonservice- connected disability pension benefits for the benefit of his dependent child on the ground that the income of the veteran's estranged spouse was excessive. In this regard, the RO stated that according to the veteran, his estranged spouse's wages were $18,000, and the RO indicated that that amount of income exceeded the annual pension limit of $1586. In an October 2004 decision, the Board remanded this claim. At that time, the Board stated that upon a review of the August 2001 decision letter which denied apportionment of the incarcerated veteran's VA nonservice-connected disability pension benefits for the benefit of his dependent child on the ground that the income of the veteran's estranged spouse was excessive, it was unclear as to whether the RO's listing of $1586 as the annual pension limit was the maximum allowable annual income for death pension rate for a surviving spouse and child. Thus, the Board remanded the veteran's claim and requested that the RO inform the veteran of the maximum allowable annual income for death pension rate for a surviving spouse and child for the years 2000, 2001, 2003, 2003, and 2004. In addition, the RO was requested to ask the veteran to complete and return an updated Income-Net Worth and Employment Statement (VA Form 21-527). In November 2004, the veteran submitted VA Form 21-0516-1, Improved Pension Eligibility Verification Report (Veteran With No Children). In the form, in response to the question as to whether the veteran or his spouse received wages at any time during the past 12 months, the veteran responded "no." In a letter from the RO to the veteran, dated in December 2004, the RO stated that the maximum allowable annual income for death pension rate for a surviving spouse and child was $8,168 in 2000; $8,389 in 2001; $8,507 in 2002; $8,686 in 2003; and $8,921 in 2004. In a VA Form 21-0517-1, Improved Pension Eligibility Verification Report (Veteran With Children), received by the RO in August 2005, the veteran stated that from September 1, 2000 to August 31, 2001, his spouse's gross wages from all employment was $12,000. The veteran also noted that from January 1, 2001 to December 31, 2001, his spouse's gross wages from all employment was $12,000. In a second VA Form 21-0517-1, Improved Pension Eligibility Verification Report (Veteran With Children), also received by the RO in August 2005, the veteran indicated that from January 1, 2002 to December 17, 2002, his spouse's gross wages from all employment was $12,400. In December 2005, the veteran submitted a letter to the RO. In the letter, the veteran stated that the income of his wife and child of $12,000 and $12,400 for the years in question as reported on VA Forms 21-0517-1 was below the poverty line established by both the Federal and State government (Minnesota) for a household size of two. Thus, the veteran maintained that his child should have received an apportionment of his monthly disability pension checks while he was incarcerated from 2000 to 2004. According to the veteran, his daughter underwent cancer surgery and treatment in 2002 and 2003 which caused further economic hardship for his wife and child. In January 2006, the RO sent the veteran a letter and requested that the veteran provide them with his wife's unreimbursed medical expenses for the years 2000, 2001, and 2002. The RO noted that the veteran should use the enclosed VA Form 21-8416 to report the unreimbursed amounts; one form for each year was enclosed. The evidence of record is negative for a response from the veteran. In the instant case, it appears that the veteran was released from prison in early 2005. In addition, by a letter from the VA Medical and Regional Office Center (M&ROC) in Fargo, North Dakota, to the veteran, dated in January 2006, the Fargo VA M&ROC stated that because they had not received the veteran's annual Eligibility Verification Report, they had taken action to suspend his VA pension payments. However, regardless of whether the veteran is currently receiving VA nonservice-connected disability pension benefits, the Board notes that in this case, it is the veteran's contention that his daughter was entitled to an apportioned share of his VA nonservice-connected disability pension benefits while he was incarcerated from 2000 to 2004; thus, the issue at hand is whether an apportionment of VA nonservice-connected pension benefits of an incarcerated veteran is warranted. The facts in this case, as cited above, do not meet the threshold requirements that would permit an apportionment of the veteran's VA nonservice-connected disability pension benefits while he was incarcerated. The veteran's estranged spouse, the custodian of the veteran's daughter, K.A.M., had annual income of $18,000 for the year 2000, which exceeds the maximum allowable annual income for 2000 (or $8,168 in 2000). She also had an annual income of $12,000 for the year 2001, which exceeds the maximum allowable annual income for 2001 (or $8,389 in 2001), and she had an annual income of $12,400 for the year 2002, which exceeds the maximum allowable annual income for 2002 (or $8,507 in 2002). The Board acknowledges the arguments advanced by the appellant; however, the income limits for receipt of an apportionment of VA nonservice-connected disability pension benefits for incarcerated veterans are controlled solely by the above-cited law and regulations. The United States Court of Appeals for Veterans Claims has stated that "[w]here the law and not the evidence is dispositive, the claim should be denied or the appeal to the [Board] terminated because of the absence of legal merit or the lack of entitlement under the law." Shields v. Brown, 8 Vet. App. 346, 351-52 (1995); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based upon the foregoing, the Board finds that the claim for an apportionment of VA nonservice-connected disability pension benefits for incarcerated veterans is legally insufficient. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. Id. ORDER The claim for an apportionment of VA nonservice-connected disability pension benefits of an incarcerated veteran must be denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs