Citation Nr: 1120108	
Decision Date: 05/24/11    Archive Date: 06/06/11

DOCKET NO.  09-41 912	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to nonservice-connected pension benefits, to include the question of whether the Veteran's annualized countable annual income exceeds the maximum annual income limit for receipt of payment of such benefits.

2.  Entitlement to special monthly pension.

3.  Entitlement to an effective date prior to March 17, 2008 for the grant of eligibility for nonservice-connected pension benefits.


ATTORNEY FOR THE BOARD

A. C. Mackenzie, Counsel




INTRODUCTION

The Veteran served on active duty from September 1971 to October 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Philadelphia, Pennsylvania Regional Office and Insurance Center (RO), which denied entitlement to special monthly pension and granted eligibility for nonservice-connected pension benefits, although the October 2008 cover letter indicates that such benefits were denied because the Veteran's family income exceeded the maximum annual limit set by law.  

The Veteran was scheduled for a Travel Board hearing in October 2010, but he failed to report for such hearing without explanation.  The hearing request is accordingly deemed withdrawn.  38 C.F.R. § 20.704(d) (2010).

The issues of entitlement to special monthly pension and entitlement to an effective date prior to March 17, 2008 for the grant of eligibility for nonservice-connected pension benefits are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  The evidence of record indicates that the Veteran's annual income exceeds the maximum annual income limit for receipt of payment of nonservice-connected pension benefits.

2.  The Veteran has not responded to the RO's efforts to obtain additional financial information in conjunction with this claim.




CONCLUSION OF LAW

The Veteran's annualized countable annual income exceeds the maximum annual income limit for receipt of payment of nonservice-connected pension benefits.  38 U.S.C.A. §§ 501, 1521, 1522 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.3, 3.23, 3.262, 3.271, 3.272 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a general matter, VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). However, these laws and regulations do not apply to all types of claims.  For example, in Barger v. Principi, 16 Vet. App. 132 (2002), the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Claims Assistance Act of 2000 (VCAA), with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA).  Similarly, the statute at issue in this appeal is not found in Chapter 51.  Thus, because the law as mandated by statute, and not the evidence, is dispositive of this particular claim, the noted laws and regulations are inapplicable.  See Mason v. Principi, 16 Vet. App. 129 (2002).

Pursuant to 38 U.S.C.A. § 1521(a), 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.  Basic entitlement exists if, among other things, the Veteran's income is not in excess of the applicable maximum allowable pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register.  See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3(a)(3).  The maximum annual pension rate (MAPR) is periodically increased from year to year.  38 C.F.R. § 3.23(a).  The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the Veteran.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b). In addition, payment of a Veteran's pension shall be denied or discontinued based upon consideration of the annual income of the Veteran, the Veteran's spouse, and the Veteran's children.  38 U.S.C.A. § 1522(a); 38 C.F.R. §§ 3.262, 3.274.

In determining annual income, 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.  38 U.S.C.A. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a).  Income from the Social Security Administration (SSA) 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 MAPR, 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).

Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits; payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses in excess of five percent of the MAPR, which have been paid.

The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations.  See 38 C.F.R. § 3.21. 

The Veteran submitted his current claim for VA nonservice-connected disability pension benefits in March 2008.  The record indicates that the Veteran is divorced and has no other dependents.  In terms of income, the Veteran reported $469.00 biweekly unemployment compensation.  

In the October 2010 letter accompanying the appealed September 2010 rating decision, the RO notified the Veteran that his claim for nonservice-connected disability pension, to which he was otherwise eligible, was being denied because his family income exceeded the maximum annual limit set by law.  The income limit for a Veteran with no dependents was noted to be $11,181.00, but the Veteran had annual earnings (unemployment benefits) of $12,194.00.  (The Board notes that, as of December 1, 2008, the income limit was raised to $11,830.00, and this limit amount remains in effect.)

In his April 2009 Notice of Disagreement, the Veteran contested the Board's conclusion.  He indicated that his only income for 2008 was $6034.00 in unemployment benefits that he received in error, resulting in an overpayment.  He attached a copy of a Pennsylvania Unemployment Compensation Board of Review decision indicating that the $6034.00 amount constituted an overpayment.  He also provided letters from the Social Security Administration (SSA), dated in January and February of 2009.  The second letter indicates that the Veteran was to receive $410.00 in February 2009, representing additional money due for October through December of 2008, and that he was to receive $816.00 on or about the third day of each subsequent month.  This letter further indicates that the Veteran was receiving both Social Security and Supplemental Security Income (SSI) benefits.  

For purposes of clarification, the RO sent letters to the Veteran in February and April of 2010, in which he was requested to complete and return a VA Form 21-527 (Income-Net Worth and Employment Statement).  He was specifically requested to provide information for all income beginning on March 17, 2008.  The Veteran never responded to these requests, however.  In this regard, the Board notes that a claimant seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Accordingly, in light of the Veteran's lack of a response to VA's efforts to assist him with the factual development of his claim, no further effort will be expended to assist him in this regard.  The claim must be evaluated solely on the evidence currently of record.  

Overall, the Board finds that the Veteran has not cooperated with VA's requests and has not provided evidence to show that his income does not exceed the noted statutory limits.  Therefore, he is not legally entitled to payment of VA pension benefits.  As such, his claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The Veteran's countable income is excessive for purposes of nonservice-connected disability pension benefits, and his appeal is denied.


REMAND

As noted above, the Veteran has been shown to be in receipt of SSI benefits.  The records upon which the determination of SSI eligibility was made are not pertinent to the nonservice-connected pension issue, as that issue turns on income levels and not medical evidence, but such records could well contain findings relevant to the special monthly pension claim.  See 38 C.F.R. §§ 3.351, 3.352.  Accordingly, those records must be obtained prior to a final determination of that claim.  See 38 C.F.R. § 3.159(c)(2).

Also, in the appealed September 2008 rating decision, the RO established eligibility to nonservice-connected pension benefits as of March 17, 2008.  In his May 2009 Notice of Disagreement, the Veteran asserted that he should have been "eligible for pension benefits and retroactive payments back to April 2007."  In the September 2009 Statement of the Case, the RO noted (in the discussion of the nonservice-connected pension benefits issue) that the Veteran's effective date was March 17, 2008, the date of claim, but this matter was not addressed as a separate issue.  The Board views the comments from the May 2009 Notice of Disagreement as indicative of an intent to appeal the assigned effective date, and, as such, a Statement of the Case must be issued with regard to this matter.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38 C.F.R. § 19.26.

Accordingly, the case is REMANDED for the following action:

1.  SSA should be contacted and requested to provide all records pertaining to the Veteran, particularly with regard to the grant of SSI.  All records received by the RO/AMC must be added to the claims file.  If the search for such records has negative results, documentation to that effect must be added to the claims file.

2.  The claim for special monthly pension must then be readjudicated.  If the determination remains unfavorable, the Veteran must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board.

3.  The Veteran should also be furnished with a Statement of the Case addressing the claim for an effective date prior to March 17, 2008 for the grant of eligibility for nonservice-connected pension benefits.  This issuance must include a complete description of the Veteran's rights and responsibilities in perfecting an appeal as to this claim.

The Veteran has the right to submit additional evidence and argument on this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).


______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs