Citation Nr: 1143545 Decision Date: 11/29/11 Archive Date: 12/06/11 DOCKET NO. 09-47 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Whether the Veteran's Social Security income should be excluded as countable income for purposes of payment of nonservice-connected Department of Veterans Affairs pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Harryman, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. FINDINGS OF FACT 1. The Veteran has been in receipt of VA pension benefits since March 2004. The Veteran has been in receipt of Social Security income since April 2005. 2. The Veteran's Social Security income consists of recurring monthly payments from the Social Security Administration that are not specifically excluded as countable income by pertinent VA law or regulations. CONCLUSION OF LAW The Veteran's Social Security income was properly included as countable income for purposes of determining entitlement to payment of VA pension benefits. 38 U.S.C.A. §§ 1503, 1521 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.271, 3.272, 3.273 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) and the implementing regulations define and mandate the notice and assistance that VA is required to provide claimants in the development of the factual evidence necessary to advance their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). However, under the circumstances presented in this case, it is not the factual evidence that is dispositive of the present appeal, but rather the application of the law and regulations to the undisputed facts. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (holding that, where the law as mandated by statute, and not the evidence, is dispositive, the VCAA is not applicable); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In this case, the question is limited to the interpretation and application of the statute involved, and therefore, neither the duty to assist nor duty to notify provisions of the VCAA are implicated. Contentions The Veteran maintains that his VA pension should not have been reduced because the income from his Social Security benefits should not have been countable towards his total annual income for VA pension purposes so as to offset his pension. The Veteran contends that he was misled by individuals at the Social Security Administration (SSA) and at VA because they reportedly advised him that his VA pension benefits would not be affected by his receipt of Social Security Benefits. He states that this misled him into thinking that all his Social Security retirement benefits would be excluded from his countable income. The Veteran believes that, therefore, it would be inequitable for VA to reduce his VA disability pension. Analysis Essentially, pension is a periodic payment made by VA to a veteran because of service, age, or nonservice-connected disability, or to a surviving spouse or child of a veteran because of the nonservice-connected death of the veteran. The amount of pension actually received is the difference between the recipient's countable income and the maximum annual rate permitted by VA, given the recipient's circumstances. 38 U.S.C.A. § 1503. Entitlement to payment of nonservice-connected pension benefits is based on income received from all sources, including other family members, except for types of income that are specifically excluded; none of the excluded types is relevant in this case. 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.271, 3.272. The law states that a pension benefit is to be reduced by the amount of the claimant's annual household income. See 38 U.S.C.A. § 1521. Pension is not payable if the recipient's countable annual income exceeds the maximum limitation, given the recipient's circumstances as set forth in the legislation. In determining the recipient's annual countable income, payments of any kind from any source shall be counted as income during the twelve-month annualization period in which received, unless specifically excluded. See 38 U.S.C.A. § 1503; 38 C.F.R. §§ 3.271, 3.272. Whenever there is a change in the maximum annual pension rate, or in the recipient's family income, the monthly rate of pension payable shall be adjusted, effective the date of change. Id. The basic facts in this case are not in dispute. In March 2004, the Veteran filed a claim for VA pension benefits, based upon his service during the Vietnam era. On his VA Form 21-526 application, the Veteran indicated that he was not in receipt of any recurring monthly income, including Social Security income; he stated that he received food stamps as "Supplemental Security (SSI/Public Assistance)." In June 2004, the Veteran was awarded VA pension, effective from March 31, 2004. In the June 2004 letter of notification to the Veteran, it was stated that the benefit was awarded because he had no income from March 31, 2004. The Veteran was advised that it was his responsibility to tell VA "right away" if his "income . . . changes (i.e., earnings, Social Security Benefits, lottery and gambling winnings)." The RO also wrote the Veteran in November 2004 to remind him to tell them "immediately if there is any change in your income []. If you have income now which was not previously reported, please tell us what it is, the monthly rate and the date on which you received the first check." In June 2006, the RO sent a letter to the Veteran that informed him that VA had discovered that he was receiving SSA income. He responded with a request for a hearing. In January 2008, action was taken to reduce the Veteran's pension, effective April 1, 2005; in addition, he was notified of the creation of an overpayment of VA benefits that would have to be repaid. Recovery of the overpayment was later waived. As noted above, the Veteran challenged the basis for the reduction of his pension, specifically claiming that his Social Security income should not be countable for VA pension eligibility purposes. He testified at two hearings at the RO, in November 2007 and November 2009, and before the Board at the RO in April 2011. He stated that in November 2004, when he was applying for SSA retirement benefits, he specifically asked the SSA representative whether the VA pension benefits that he was already receiving would impact his SSA benefits, or vice versa. According to the Veteran, he was advised by the SSA representative that there was no problem with receipt of benefits from both sources. The Veteran also testified that he spoke by telephone with a VA representative that same month, requesting VA's assurance, as well; he indicated that the Veteran's representative provided him similar assurance that the receipt of neither benefit would impact the other benefit. The law governing whether a recipient's income is countable for pension benefits purposes is clear, in that "payments of any kind from any source shall be counted as income . . . unless specifically excluded under § 3.272." 38 C.F.R. § 3.271(a). A detailed review of 38 C.F.R. § 3.272 fails to disclose how Social Security income would qualify for exclusion from countable income for VA pension purposes under any reasonable interpretation. The Veteran maintains that he was was misled by SSA and by VA regarding the necessity to report his Social Security benefits for purposes of qualifying for VA pension benefits. He has further stated that it was his belief that only SSA disability benefits were countable. He argues that it would thus be inequitable to reduce his VA pension benefits. It must be noted, however, that at the time the Veteran was awarded VA pension in June 2004, he was specifically advised that the amount of his pension was based upon his having no income. He was further advised of the necessity to report changes to his income, including from SSA. The RO also sent the Veteran a letter in November 2004, specifically reminding him to report any changes in his income. The record shows that he began receiving SSA retirement benefits in April 2005. To the extent the Veteran is raising an argument couched in equity, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104(c) (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Inclusion of the Veteran's SSA income in determining his countable income for VA nonservice-connected disability pension purposes was proper, and the appeal is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs