Citation Nr: 1126875 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 10-22 434A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether the appellant's income is a bar to non-service-connected pension benefits with an additional allowance for aid and attendance, effective February 1, 2006. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, G.S. and two observers ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1955. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. The Veteran was afforded a Travel Board hearing in April 2011. A transcript of the testimony offered at this hearing has been associated with the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's countable income, minus unreimbursed medical expenses, for 2006 does not exceed the maximum annual pension rate (MAPR) for the period beginning December 1, 2005. CONCLUSION OF LAW The Veteran's annual countable income for 2006 does not exceed 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); 38 C.F.R. §§ 3.3, 3.23, 3.159, 3.271, 3.272 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As an initial matter, in April 2011, the Veteran was afforded a hearing at the RO. He was present for his hearing, however, he is incapacitated, and he did not testify. Rather, testimony was taken from a family member. In this regard, it appears that the Veteran's legal guardian, his spouse, is also incapacitated. 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 MAPR applicable to the veteran's circumstances. 38 U.S.C.A. § 1521(a) (West 2002); 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 (2010). According to the MAPR, the maximum income allowed for a veteran with one dependent spouse and entitled to aid and attendance was $20,924.00 for the period beginning December 1, 2005. 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) (2010). 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) (2010). 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); see also 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a) (2010). 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. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). According to the April 2010 statement of the case, the PMC found that the Veteran's income exceeded the applicable MAPR of $20,924.00, effective February 1, 2006. The PMC found that the Veteran received $15,474.00 in Social Security Administration (SSA) benefits and that his spouse received $6,162.00 in SSA benefits for the applicable period. In addition, the PMC counted additional income of $99.00 from "Westar," $11.00 from Security Savings Bank, F.S.B., $1,500.00 from Janus Worldwide Fund for the Veteran, and $3,046.00 from this fund for the Veteran's spouse. After taking a deduction for the Veteran's unreimbursed medical expenses, the PMC found that the Veteran's income for the applicable period was $21,163.00, or $239.00 over the MAPR. In reviewing the record, the Board notes that the income for the Veteran's SSA benefits, and his spouse's SSA benefits, appears to have been properly verified with the SSA, and that the SSA's documentation is associated with the claims file. The SSA income for the applicable period totals $21,636.00. However, the claims file is otherwise incomplete; it does not contain the PMC's original decision, nor does it contain any evidence as to the Veteran's other alleged sources of income, as listed in the statement of the case. In this regard, to the extent that the Veteran's family members may have not contested any specific alleged income, the Board declines to find such testimony probative. In addition, to the extent that the Veteran and his spouse appear to concede receipt of $1,690.00 in income (other than SSA benefits) in their notice of disagreement, received in February 2010, this amount does not affect the outcome of the claim. In summary, there is no objective evidence to corroborate the alleged income (other than SSA income) that is listed in the statement of the case. The evidence indicates a gross income of $21,636.00 for the applicable period. When the amount of the Veteran's unreimbursed medical expenses, $5,821.00, is deducted from the applicable gross income, see 38 C.F.R. § 3.272(g)(1)(iii), the Veteran's net income for pension eligibility purposes is below the applicable MAPR of $20,924.00, and does thus not constitute a bar to non-service-connected pension benefits with an additional allowance for aid and attendance, effective February 1, 2006. Accordingly, in resolving all doubt in the Veteran's favor, the Board finds that his income is not a bar to the benefits sought on appeal. Gilbert. The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In this case, as the Board has fully granted the Veteran's claim, the Board finds that a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Entitlement to non-service-connected pension benefits with an additional allowance for aid and attendance from February 1, 2006, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs