Citation Nr: 0814630 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-23 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to non-service connected disability pension. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from October 1952 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's countable annual income for VA pension purposes is in excess of the established income limit for receipt of payment for nonservice-connected disability pension benefits. CONCLUSION OF LAW Entitlement to nonservice-connected disability pension is not authorized. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION To implement the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and implementing regulations provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. In this case, the appellant has been notified of the reasons for the denial of this claim, and has been given notice of the laws and regulations governing the claim. In a September 2005 letter, the RO informed the appellant that he needed to show his income did not exceed certain requirements in order to be awarded pension benefits. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant. In any event, as will be explained below, the claim for pension benefits lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994) [where the law and not the evidence is dispositive, the claim must be denied because of a lack of entitlement under the law]. VCAA notice is therefore not required for reasons stated in the paragraph immediately following. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001), the United States Court of Appeals for Veterans Claims held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Similarly, VA General Counsel has held that VA is not required to provide notice of the information and evidence necessary to substantiate a claim, or to assist the claimant in developing evidence to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See VAOGCPREC 5-2004. See also Mason v. Principi, 16 Vet. App. 129, 132 (2002) [VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"]. Pursuant to 38 U.S.C.A. § 1521(a), improved (nonservice- connected) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct. One prerequisite to entitlement is that the veteran's income not exceed the applicable maximum pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a). 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). 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); see also 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a). SSA income is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. Medical expenses in excess of five percent of the maximum annual pension rate, which have been paid, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g) (1) (iii). In this case, the veteran filed his claim for nonservice- connected pension in March 2005, at which time he reported his and his wife's income and assets, including Social Security income. In October 2005, he filed a Medical Expense Report that included his electric bill for air conditioning and heat. Subsequently, he submitted copies of his electric and gas bills claiming them as necessary medical expenses. Calculating the veteran's and his wife's income for the period in question, after deducting allowable medical expenses, it exceeds the total maximum annual pension rate (MAPR) for a veteran with one dependent. See 38 C.F.R. § 3.23(a) (5); VA Manual M21-1, Part I, Appendix B. Thus, the veteran's claim for improved VA pension must be denied for excess yearly income. There is no basis for including utility bills as a medical expense; these are in the nature of basic necessities of life like food, clothing and shelter. While they may have the added benefit of warding off disease or injury or making their residuals more bearable, the same could also be said of other basic necessities, payment for which is not a medical expenditure. There is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the veteran's claim. Thus, the application of the principle of reasonable doubt is not appropriate in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for entitlement to a nonservice connected disability pension benefits must be denied due to the veteran's excessive income. ORDER Entitlement to nonservice-connected disability pension is denied. _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs