Citation Nr: 0814254 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 07-22 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the veteran's countable income constituted a bar to receipt of non-service-connected pension with aid and attendance benefits. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The appellant is the spouse and court-appointed conservator of the veteran, who served on active duty from February 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case has been advanced on the Board's docket due to the advanced age of the appellant. See 38 U.S.C.A. §7107 (West 2002 & Supp. 2007); 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT The veteran's countable annual income for 2006, 2007, and 2008 exceeds the maximum annual income for VA improved disability pension benefits for a veteran with one dependent at the aid and attendance rate. CONCLUSION OF LAW The veteran's annual countable income exceeds the annual statutory maximums for the receipt of non-service-connected disability pension with aid and attendance benefits. 38 U.S.C.A. §§ 1521, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.3, 3.23, 3.159, 3.271, 3.272 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). Collectively, VA notice and duty to assist letters dated in June and August 2006 satisfied VA's duty to notify under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159, as they informed the appellant of what evidence was needed to establish the benefits sought, of what VA would do or had done, and what evidence the appellant should provide, informed the appellant that it was the appellant's responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim, and asked the appellant to send to VA all evidence he had that related to the claim. In responses received in July 2006 and December 2007, the veteran, including through his conservator, indicated that he did not have any other information or evidence to give to VA. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by the representative organization. Additionally, in cases such as this where the law is dispositive (reported annual income exceeds guidelines), so the basis of denial of the claim is legal, the duty to notify and assist the veteran is more limited. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Mason v. Principi, 16 Vet. App. 129 (2002). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Excessive Income as a Bar to Pension Benefits Improved disability pension is a benefit payable by VA to a veteran of a period of war because of permanent and total disability. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting the veteran's annual family countable income from the maximum annual pension rate (MAPR) applicable to the veteran's circumstances. 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2007); Martin v. Brown, 7 Vet. App. 196, 198 (1994). The MAPR, which was previously published in Part I, Appendix B, of VA Manual M21-1, is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23 (2007). According to the MAPR, the maximum income allowed for a veteran with one dependent spouse and entitled to aid and attendance $20,924 for the period beginning December 1, 2005; and $21,615 for the period beginning December 1, 2006. VA Manual M21-1, Part I, Appendix B. One prerequisite to entitlement to pension benefits is that the veteran's household income not exceed the applicable MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a) (2007). Pension benefits are paid at the maximum annual rate reduced by the amount of annual income received by the veteran. 38 U.S.C.A. § 1521(b); 38 C.F.R. §§ 3.3(a) (3) (vi), 3.23(a), (b), (d)(4) (2007). In determining countable annual income for improved pension purposes, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a) (West 2002 & Supp. 2007); see also 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a) (2007). Unreimbursed medical expenses will be excluded when all of the following requirements are met: (i) they were or will be paid by a veteran or spouse for medical expenses of the veteran, spouse, children, parents and other relatives for whom there is a moral or legal obligation of support; (ii) they were or will be incurred on behalf of a person who is a member or a constructive member of the veteran's or spouse's household; and (iii) they were or will be in excess of 5 percent of the applicable MAPR or rates for the veteran (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) as in effect during the 12-month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.272. In this case, in the August 2006 claim for non-service- connected pension benefits, the veteran reported that, for the one year period from August 2005 to August 2006, his total annual earnings were $91,232. On a December 2006 Improved Pension Eligibility Verification Report, the veteran reported sources of $7,483 per month - his retirement income of $6,549 from various sources, and his wife's Social Security monthly income of $934. This reflects an expected 12 month annual income of at least $89,796 from retirement income alone, and the veteran also reported the expected receipt of other lesser amounts of income such as from bank accounts. The medical expenses reported as incurred for the 12 month annualized period from August 2005 to August 2006, and for any 12 month annualized period thereafter, do not remotely approximate the amounts that would be required to offset the veteran's income to reduce the income from over $90,000 to $20,924 for the period beginning December 1, 2005, or to $21,615 for the period beginning December 1, 2006. Even after excluding reported medical expenses, the Board finds that the veteran's countable annual income for VA improved pension purposes is far in excess of the established income limits for receipt of payment for improved disability pension benefits. The veteran's family income far exceeded the MAPR allowed for a veteran with one dependent spouse and with aid and attendance benefits. The controlling regulation does not permit, as the appellant asserts, that all past medical bills paid for any year should be considered in any one 12 month annualized period. The regulation specifically provides that unreimbursed medical expenses will be excluded when specific requirements are met, including payment or incurrence of expenses in excess of 5 percent of the applicable MAPR or rates for the veteran during a 12-month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.272. Notwithstanding the appellant's disagreement with the statutory and regulatory income-based requirement for eligibility for non-service-connected pension, the legal requirements are clearly stated. VA has not authority to alter the clear statutory and regulatory income-based requirement for eligibility for non-service-connected pension benefits. For these reasons, the Board finds that the veteran's annual countable income has for the period of claim exceeded the statutory maximum for the receipt of non- service-connected disability pension benefits. 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. ORDER The appeal is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs