Citation Nr: 1111997 Decision Date: 03/25/11 Archive Date: 04/06/11 DOCKET NO. 08-29 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the determination that the Veteran's annual income exceeded the maximum annual pension rate was correct. WITNESSES AT HEARING ON APPEAL Veteran; Veteran's Daughter-In-Law ATTORNEY FOR THE BOARD S. Pflugner INTRODUCTION The Veteran served on active duty from October 1939 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2010). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Generally, in order for a claim of entitlement to a nonservice connected pension to be granted, the evidence of record must demonstrate that the veteran: (1) had qualifying military service; (2) is either 65 years old or older or is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willful misconduct; and (3) meets net worth requirements and does not have an annual income in excess of the applicable maximum annual pension rate. See 38 C.F.R. § 3.3 (2010). Here, the evidence of record demonstrated that the Veteran had qualifying military service and is 65 years old or older. The salient issue is, thus, whether the Veteran's annual income is in excess of the maximum annual pension rate. The Veteran's annual income is calculated by adding his annual income to the annual income of his dependant spouse. See 38 C.F.R. § 3.23(b)(4) (2010). With that said, however, excluded from his annual income will be any unreimbursed amounts that have been paid within the 12-month annualization period for medical expenses regardless of when the indebtedness was incurred. 38 C.F.R. § 3.272(g) (2010). The record included evidence demonstrating that the Veteran and his spouse each receive monthly payments from the Social Security Administration. Based on the combined amount of these payments, the Veteran's annual income exceeded the maximum annual pension rate, rendering him ineligible for a nonservice-connected pension. 38 C.F.R. § 3.3. However, the Board finds that the evidence of record is incomplete as to the amount of unreimbursed medical costs that the Veteran and his spouse have incurred during the pendency of this appeal. Given that the Veteran did not secure representation, and in the interest of fairness and due process, the Board finds that a remand is warranted in order to obtain documentation of the Veteran's and his spouse's unreimbursed medical expenses during the pendency of this appeal. Accordingly, the case is remanded for the following action: 1. The RO must send the Veteran the appropriate forms for appointing representation, including a list of accredited representatives and service organizations. The Veteran must be afforded a reasonable period of time to respond. If the Veteran submits a VA Form 21-22 in favor of an accredited representative or service organization, the appointed representative or service organization must be provided with an opportunity to review the case and submit a VA Form 646, Statement of Accredited Representative. 2. The RO must then contact the Veteran and, if one is appointed, the Veteran's representative, and afford him/them the opportunity to identify or submit any additional pertinent evidence in support of his claim. The RO must specifically request that the Veteran submit or identify evidence documenting unreimbursed medical costs for care that he and/or his spouse received on and after April 13, 2006, including any hospitalizations and physical and occupational therapists. This evidence must (a) identify the medical care provider; (b) identify who received the medical care; (c) distinguish between monthly and annual costs; (d) include the exact amount paid; and (e) include the date of each payment. 3. After undertaking reasonable efforts to obtain the evidence identified by the Veteran, the RO must then (a) identify the information the RO was unable to obtain; (b) explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing information. The Veteran and his representative, if one is appointed, must then be given an opportunity to respond. 4. The RO must then provide the Veteran and his representative, if one is appointed, with the following forms: (a) VA Form 21-0516-1, entitled, "Improved Pension Eligibility Verification Report (Veteran With No Children)"; (b) VA Form 21-0510, entitled, "Eligibility Verification Report Instructions"; and (c) VA Form 21-8416, entitled, "Medical Expense Report." The RO must request the Veteran to complete and submit these forms prior to the readjudication of his claim. 4. After completing the above actions, and any other indicated development the claim must be re-adjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, should one be appointed. After the Veteran and his representative, if appointed, have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).