Citation Nr: 1301576 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-44 654 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Propriety of adjustments of improved pension with special monthly pension based on housebound status payments from February 1, 2008, to December 31, 2009. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 administrative decision of the RO in Milwaukee, Wisconsin, which increased the Veteran's pension benefits for 2008 while reducing the Veteran's pension benefits in 2009. The Veteran is a resident of the state of Missouri and the St. Louis, Missouri, RO has original jurisdiction as reflected on the cover page. The Board has reviewed the Veteran's physical claims file and the Veteran's file on the "Virtual VA" system. The Board must define the scope of the appeal before proceeding on the merits. The Veteran files annual improved pension eligibility reports as part of his participation in the pension program. He challenges only those adjustments made to his award in 2008 and 2009. Virtual VA records show that he has continued to make annual filings and declarations of medical expenses but these are for 2010 and onward. This additional evidence and his statements made in support are not relevant to the instant appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. From January 1, 2008, and prior to December 1, 2008, the Veteran's reported annualized total family income, less unreimbursed medical expenses, was $7,508 or $6,156 below the maximum rate of pension payable for a veteran without dependent but with housebound status. 2. The Veteran's monthly pension payments for January through November 2008 should have been $513 per month. 3. For December 2008, the Veteran's reported annualized total family income, less unreimbursed medical expenses, was $7,866 or $6,591 below the maximum rate of pension payable for a veteran without dependent but with housebound status. 4. The Veteran's monthly pension payment for December 2008 should have been $549. 5. On and after January 1, 2009, the Veteran's reported annualized total family income, without medical expenses, is $8,892 or $5,565 below the maximum rate of pension payable for a veteran without dependent but on housebound status. 6. The Veteran's monthly pension payments for calendar year 2009 should have been $463 per month. CONCLUSIONS OF LAW 1. An increase of the Veteran's non service-connected pension benefits to $513 per month for January through November 2008 is warranted. 38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). 2. An increase of the Veteran's non service-connected pension benefits to $549 per month for December 2008 is warranted. 38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). 3. The reduction of the Veteran's monthly pension award to $456 per month for calendar year 2009 was not warranted; restoration of the $463 monthly benefit is warranted. 38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has obligations in terms of duties to notify and assist claimants. When there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, the duties to notify and assist do not apply. 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In this case, the facts of this case are not in dispute. There is no amount of notice or assistance that can alter the Veteran's reported income and expenses for 2008 and 2009. The Board concludes that any error related to the duties to notify and assist can have no impact on the outcome of this case. Sabonis v. Brown, 6 Vet. App. 426 (1994). Adjustments of Improved Pension Benefits The Veteran appeals a February 2010 administrative decision which adjusted his 2008 and 2009 pension payments. The crux of his appeal is that he received an $813.00 check although the decision claimed to have reduced his pension. For the reasons that follow, the Board finds that the Veteran's award was not properly adjusted for 2008 or 2009 and that the Veteran is owed pension benefits. Improved pension is a benefit payable by VA to a veteran of a period of war because of permanent and total disability or who is beyond 65 years of age. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting the veteran's annual family countable income from the maximum annual pension rate applicable to the veteran's circumstances. 38 U.S.C.A. § 1521(a); Martin v. Brown, 7 Vet. App. 196, 198 (1994). In determining annual income for nonservice-connected pension benefits, all payments of any kind or from any source, including salary, retirement or annuity payments, or similar income shall be included. 38 U.S.C.A. § 1503(a)(West 2002 & Supp. 2012). Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received except for listed exclusions. 38 C.F.R. § 3.271. The Veteran's reported family income consists of Social Security Administration (SSA) disability payments and a private pension. SSA disability and retirement income are not specifically excluded under 38 C.F.R. § 3.272. All such income is therefore included as countable income. Basic entitlement to such pension exists if, among other things, the Veteran's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 (2012). 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). 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 published in VA regulations. 38 C.F.R. § 3.21 (2012). The maximum annual pension rate (MAPR) is set by Congress. That rate, which may change yearly, is published in Appendix B of the Veterans Benefits Administration Manual M21-1. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3), 3.23. The MAPR used in any given case is based on certain status determinations. In this case, the Veteran has no dependents and is entitled to special monthly pension based on housebound status. The Board notes that, although the MAPR rates are changed effective December 1 of each year, total income for calendar years governs payment of benefits. See 38 C.F.R. § 3.260(f)(2012). Similarly, fractions of a dollar are disregarded for the purposes of the calculations below regarding the annual rates. See 38 C.F.R. § 3.260(g). After determining the monthly or other periodic rate of improved pension under 38 C.F.R. §§ 3.273 and 3.30, the resulting rate, if not a multiple of one dollar, will be rounded down to the nearest whole dollar amount. 38 C.F.R. § 3.29. 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. See 38 C.F.R. § 3.272(g)(1)(iii) (2012). The five percent threshold is calculated based on the Veteran and any dependents, but not considering housebound status. See id. The threshold is $559 for the December 2007 MAPR and $591 for the December 2008 MAPR for a veteran without dependents. The Veteran appeals a February 2010 administrative decision on appeal here adjusting the 2008 award upward and the 2009 award downward. The Board will address the 2008 award before turning to the 2009 award. Because of changes in the MAPR rate and increases in income in December 2008 and January 2009, the Board will break the analysis into three time periods below. The Board begins with the period of January to November 2008. At that time, the maximum annual pension rate for a veteran without dependents with the housebound rate in effect in 2008 was $13,664. VA Manual M21-1, Appendix B, Dec. 1, 2007. Apart from VA benefits, the Veteran's annual income comes from SSA and from a private pension. As of January 1, 2008, the monthly SSA payment was $486. His private pension payment was $222.18. He clearly marked the amount for 2008 in the column marked January 1 to December 31, 2008. He just as clearly marked $227.24 in the column for 2009. The RO applied the 2009 amount to the 2008 pension calculation. As a result, the RO overstated the Veteran's 2008 income, improperly reducing his award for 2008. Based on the correct numbers and disregarding fractions of a dollar, the Veteran's annualized income prior to December 2008 was $8,496. The RO limited consideration of the period to February through December 2008. This appears to be based on when the RO thought that the private pension increased to $227.24 per month. The Board finds, however, that the pension did not increase until January 2009. In light of the requirement that income and excludable expenses must be considered on a calendar year basis, the January 2008 amount must also be considered. The Veteran reported $469 in medical expenses in his January 2009 submission. The RO added up the expenses and mistakenly entered one as $90.96 when it appeared as $80.96 on the Veteran's January 2009 report of medical expenses, overstating his medical expenses. In the original determination of VA pension benefits, neither amount exceeded the applicable five percent threshold for deduction from his annualized income. Following an April 2009 administrative decision, the Veteran submitted an April 2009 report of additional medical expenses, outlining approximately $1,078 in additional medical expenses in February and December 2008. This raised his medical expenses to $1547 for 2008. Prior to December 2008, only medical expenses exceeding $559 could be excluded from income. As adjusted, $988 worth of medical expenses may be excluded from the Veteran's annualized income prior to December 2008. Thus, the Veteran's reported annualized total family income, less unreimbursed medical expenses, was $7,508 or $6,156 below the maximum rate of pension payable for a veteran without dependent but with housebound status for the January to November 2008 period. A monthly VA pension benefit of $513 should have been paid to the Veteran. The MAPR rose to $14,457, effective December 1, 2008. VA Manual M21-1, Appendix B, Dec. 1, 2008. The Veteran's SSA payments also increased in December 2008 to $514. Combined with the $222.16 private pension payment and disregarding fractions of a dollar, his annualized income for December 2008 was $8,832. For December 2008, only medical expenses exceeding $591 were excludable from income. The Veteran could deduct $966 worth of medical expenses from his annualized income in December 2008. For December 2008, his annualized income was $7,866 or $6,591 on an annualized basis below the MAPR for December 2008. A monthly VA pension benefit of $549 should have been paid to the Veteran. The Board finds that the RO increased the Veteran's monthly award for February 2008 to November 2008 from $425 to $508. This award should have been set at $513 for January to November 2008. His monthly award for December 2008 was increased from $463 to $544. It should have been increased to $549. The RO reduced the Veteran's award for 2009 in the February 2010 decision on appeal. The Veteran submitted another improved pension eligibility verification form in January 2010. The Veteran reported SSA payments of $514 and private pension payments of $234.22 per month. He did not specify when the increase was effective. As opposed to his January 2009 income verification report, he did not complete the income columns for 2009 and 2010 separately. Given that he had already reported $227.24 in income for 2009 and the 2010 report showed only $234.22 without stating it was retroactive, the Board finds that the Veteran's monthly private pension income was $227.24 for 2009. As a result, his total income for 2009 consisted of $514 of monthly SSA payments and $227.24 of monthly pension payments. He denied having any medical expenses for 2009. His SSA payments were not modified in December 2009. Although the MAPR was published again in December 2009, no revision to the pension levels was made. Based on the incorrect monthly pension amount, the RO overstated his income for 2009. The RO reduced his monthly benefit from $463 to $456. Based on the correct numbers and disregarding fractions of a dollar, the Veteran's annual income was $8,892. After subtracting his annual income from the MAPR, a total annual benefit of $5,565 of VA pension benefits was payable. On a monthly basis, the Veteran's monthly benefit should have been $463, the amount he was being paid prior to the February 2010 decision. The Board concludes that reduction of the Veteran's non service-connected pension for 2009 was not warranted; restoration is required. In light of the foregoing, the Board concludes that increased monthly pension of $513 per month for January to November 2008, $549 for December 2008 and $463 per month for 2009 are warranted. The reduction of the Veteran's pension for 2009 was not appropriate and his 2009 pension rate should be restored. The Board finds that the evidence is at least in equipoise in favor the Veteran's claim. Consequently, the benefit-of-the-doubt rule applies, and the claim must be granted to the extent possible. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An increase of the Veteran's non service-connected pension benefits to $513 per month for January through November 2008 is granted. An increase of the Veteran's non service-connected pension benefits to $549 per month for December 2008 is granted. Reduction of the Veteran's non service-connected pension award from $463 to $456 per month for calendar year 2009 was not warranted; restoration of the $463 monthly award is granted. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs