Citation Nr: 1302215 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-10 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether the Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2007 pension year. 2. Whether the Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2008 pension year. 3. Whether the Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2009 pension year. 4. Whether the Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2010 pension year. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to April 1975. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO). This case was remanded by the Board in September 2009 and March 2012 for additional development. Claims to establish eligibility for nonservice-connected disability pension benefits for the 2011 and 2012 pension years have been raised by the record. These claims were referred to the Agency of Original Jurisdiction (AOJ) by the Board in March 2012. The evidence of record does not demonstrate that these claims have since been adjudicated. As such, they are once again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's total countable annual income in pension year 2007 was (1) $12,882.45 if he had no dependents; (2) $16,611 if he had a single dependent and that dependent was P.S.; (3) $16,246 if he had a single dependent and that dependent was M.S.; and (4) $19,851 if he had two dependents. 2. The Veteran's total countable annual income in pension year 2008 was (1) $13,308 if he had no dependents; (2) $18,012 if he had a single dependent and that dependent was P.S.; (3) $15,247 if he had a single dependent and that dependent was M.S.; and (4) $19,951 if he had two dependents. 3. The preponderance of the evidence of record demonstrates that M.S. was not a school child for VA purposes for the 2009 and 2010 pension years. 4. The Veteran's total countable annual income in pension year 2009 was (1) $14,076 if he had no dependents; and (2) $21,108 if he had a single dependent and that dependent was P.S. 5. The Veteran's total countable annual income in pension year 2010 was (1) $14,076 if he had no dependents; and (2) $21,108 if he had a single dependent and that dependent was P.S. CONCLUSIONS OF LAW 1. The Veteran's countable annual income is in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2007. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272, 3.273 (2012). 2. The Veteran's countable annual income is in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2008. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272, 3.273 (2012). 3. The Veteran's countable annual income is in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2009. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272, 3.273 (2012). 4. The Veteran's countable annual income is in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2010. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272, 3.273 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although VA has statutory and regulatory duties to notify and assist claimants who submit claims, those provisions are not applicable here where resolution of the claim is as a matter of law. Manning v. Principi, 16 Vet. App. 534 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Improved 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. 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2012). Basic entitlement to pension exists if, among other criteria, the Veteran's income is not in excess of the specified maximum annual pension rate (MAPR). 38 U.S.C.A. § 1521(a), (b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4) (2012). In this case, a May 2006 rating decision found that the Veteran was entitled to nonservice-connected pension, effective from November 30, 2005. The Veteran's appeal arises from the determination that his income exceeded the maximum annual disability pension limit for the years 2007 through 2010. The maximum annual rates of pension and death pension payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. In determining annual income for payment of pension, all payments of any kind or from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1). Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(1)-(3). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). The Veteran's annual income includes the annual income of the Veteran, his dependant spouse, and children in the Veteran's custody or to whose support the Veteran is reasonably contributing. 38 C.F.R. § 3.23(d)(4). 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 which have been paid in excess of five percent of the MAPR. 38 C.F.R. § 3.272. Income from Social Security Administration (SSA) disability benefits is not specifically excluded and therefore is included as countable income. 38 C.F.R. § 3.272. Exclusions from countable income include unreimbursed medical expenses that are in excess of five percent of the applicable maximum annual pension rate and that have been paid within the 12-month annualization period regardless of when the indebtedness was incurred. 38 C.F.R. § 3.272(g). The evidence shows that the Veteran has been in receipt of SSA benefits since April 2005. Therefore, the Board must take those monthly SSA payments into account when calculating the Veteran's countable annual income. The issues on appeal are impacted by uncertainty regarding the number of dependents the Veteran had, for VA purposes, for the years 2007 through 2010. Specifically, the Veteran had reported in December 2005 that he had three children, and paid child support for one of them. In March 2007, the Veteran reported that he paid child support, but did not list his number of dependents. Then, in April 2011, the Veteran reported that he had only two children, both of whom lived with him as dependents from 2007 to 2010; with one child (P.S.) qualifying due to being a helpless child and the other (M.S.) qualifying due to being a child over the age of 18 and under the age of 23 who was attending school. In March 2012, the Board remanded the claims on appeal, in part, to clarify the number of dependents that the Veteran had during the relevant years. In April 2012, the Veteran submitted a statement indicating that all identifying records for his dependents had been destroyed in a fire in 2004 and that he was unable to obtain additional information because his ex-wife and all of his children had cut off all means of communication with him and he was unable to locate or contact them. While this statement clearly demonstrates that the Veteran's children were not living with him in 2012, the statement does not clarify the situation for the years 2007 to 2010. As the Veteran has reported that he cannot provide the necessary information for reasons beyond his control, the Board shall provide the Veteran with the benefit of the doubt and adjudicate his claims under all possible scenarios. These scenarios are (1) the Veteran had no dependents; (2) the Veteran had a single dependent, P.S.; (3) the Veteran had a single dependent, M.S.; and (4) the Veteran had two dependents. 2007 Effective December 1, 2006, the maximum annual rate of improved pension for permanent and total disability for a Veteran with no dependents was $10,929; for a Veteran with one dependent was $14,313; and for a Veteran with two dependents was $16,179. See VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. The evidence of record shows that, for pension year 2007, the Veteran received a monthly payment of $1082 from SSA in December 2006 and monthly payments of $1,084 from SSA from January through November 2007. Based on those figures, the Veteran's annual income before deductions was $13,006. In addition, the evidence of record shows that, for pension year 2007, P.S. received $3,605 in SSA benefits while M.S. received $3,240 in SSA benefits. Accordingly, the Veteran's total countable annual income in pension year 2007 was (1) $13,006 if he had no dependents; (2) $16,611 if he had a single dependent and that dependent was P.S.; (3) $16,246 if he had a single dependent and that dependent was M.S.; and (4) $19,851 if he had two dependents. In an April 2011 improved pension eligibility verification report, the Veteran reported that he had paid $670.00 in medical expenses in pension year 2007. Medical expenses are only excluded from countable income for the purpose of determining entitlement to improved pension if they are in excess of five percent of the MAPR. 38 C.F.R. § 3.272. For pension year 2007, five percent of the MAPR was $546.45 for Veterans with no dependents, $715.65 for Veterans with one dependent, and $808.95 for Veterans with two dependents. Accordingly, the Veteran's reported medical expenses only qualified for exclusion from his countable income for the scenario where he had no dependents in pension year 2008. Id. For that scenario, the Veteran is entitled to a deduction of $123.55. As such, the Veteran's total countable income for the scenario with no dependents in pension year 2007 is properly adjusted to $12,882.45. The Veteran's total countable income in all four of these scenarios exceeds the applicable MAPR for each of those scenarios for pension year 2007. Therefore, the Board finds that the Veteran's total countable annual income has exceeded the MAPR for pension year 2007, regardless of which of the dependency scenarios is correct. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for improved pension purposes for pension year 2007, and entitlement to payment of improved pension benefits for pension year 2007 is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2008 Effective December 1, 2007, the maximum annual rate of improved pension for permanent and total disability for a Veteran with no dependents was $11,181; for a Veteran with one dependent was $14,643; and for a Veteran with two dependents was $16,552. See VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. The evidence of record shows that, for pension year 2008, the Veteran received a monthly payment of $1,109 from SSA from December 2007 through November 2008. Based on those figures, the Veteran's annual income before deductions was $13,308. In addition, the evidence of record shows that, for pension year 2008, P.S. received $4,704 in SSA benefits while M.S. received $1,939 in SSA benefits. Accordingly, the Veteran's total countable annual income in pension year 2008 was (1) $13,308 if he had no dependents; (2) $18,012 if he had a single dependent and that dependent was P.S.; (3) $15,247 if he had a single dependent and that dependent was M.S.; and (4) $19,951 if he had two dependents. In an April 2011 improved pension eligibility verification report, the Veteran reported that he had paid $490.00 in medical expenses in pension year 2008. For pension year 2008, five percent of the MAPR was $559.05 for Veterans with no dependents, $732.15 for Veterans with one dependent, and $827.60 for Veterans with two dependents. Accordingly, the Veteran's reported medical expenses did not qualify for exclusion from his countable income for any scenario in pension year 2008. 38 C.F.R. § 3.272. The Veteran's total countable income in all four of these scenarios exceeds the applicable MAPR for each of those scenarios for pension year 2008. Therefore, the Board finds that the Veteran's total countable annual income has exceeded the MAPR for pension year 2008, regardless of which of the dependency scenarios is correct. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for improved pension purposes for pension year 2008, and entitlement to payment of improved pension benefits for pension year 2009 is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. 2009 Effective December 1, 2008, the maximum annual rate of improved pension for permanent and total disability for a Veteran with no dependents was $11,830; for a Veteran with one dependent was $15,493; and for a Veteran with two dependents was $17,513. See VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. The evidence of record shows that, for pension year 2009, the Veteran received a monthly payment of $1,173 from SSA from December 2008 through November 2009. Based on those figures, the Veteran's annual income before deductions was $14,076. In addition, the evidence of record shows that, for pension year 2009, P.S. received $7,032 in SSA benefits while M.S. did not receive SSA benefits. However, the reduction in SSA benefits for M.S. in pension year 2008 and the total discontinuance of SSA benefits for M.S. in pension year 2009 indicates that SSA ceased to regard M.S. as a school child from approximately September 2008. As the Veteran has not submitted any evidence of record to demonstrate that M.S. remained in school from September 2008 through the end of pension year 2010, the preponderance of the evidence of record demonstrates that she was not a school child for VA purposes during this time period. As such, the Board shall not consider M.S. to be a dependent of the Veteran for the purposes of this decision with respect to pension years 2009 and 2010. Accordingly, the Veteran's total countable annual income in pension year 2009 was (1) $14,076 if he had no dependents; and (2) $21,108 if he had a single dependent and that dependent was P.S. In an April 2011 improved pension eligibility verification report, the Veteran reported that he had paid $350.00 in medical expenses in pension year 2009. For pension year 2009, five percent of the MAPR was $591.50 for Veterans with no dependents and $774.65 for Veterans with one dependent. Accordingly, the Veteran's reported medical expenses did not qualify for exclusion from his countable income for either scenario in pension year 2009. 38 C.F.R. § 3.272. The Veteran's total countable income in both of the remaining scenarios exceeds the applicable MAPR for each of those scenarios for pension year 2009. Therefore, the Board finds that the Veteran's total countable annual income has exceeded the MAPR for pension year 2009, regardless of which of the dependency scenarios is correct. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for improved pension purposes for pension year 2009, and entitlement to payment of improved pension benefits for pension year 2009 is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. 2010 No cost of living increase was provided for pension year 2010. Accordingly, for that year, the maximum annual rate of improved pension for permanent and total disability for a Veteran with no dependents was $11,830; for a Veteran with one dependent was $15,493; and for a Veteran with two dependents was $17,513. See VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. The evidence of record shows that, for pension year 2010, the Veteran received a monthly payment of $1,173 from SSA from December 2009 through November 2010. Based on those figures, the Veteran's annual income before deductions was $14,076. In addition, the evidence of record shows that, for pension year 2010, P.S. received $7,032 in SSA benefits. Accordingly, the Veteran's total countable annual income in pension year 2010 was (1) $14,076 if he had no dependents; and (2) $21,108 if he had a single dependent and that dependent was P.S. In an April 2011 improved pension eligibility verification report, the Veteran reported that he had paid $120.00 in medical expenses in pension year 2010. For pension year 2010, five percent of the MAPR was $591.50 for Veterans with no dependents and $774.65 for Veterans with one dependent. Accordingly, the Veteran's reported medical expenses did not qualify for exclusion from his countable income for either scenario in pension year 2010. 38 C.F.R. § 3.272. The Veteran's total countable income in both of the remaining scenarios exceeds the applicable MAPR for each of those scenarios for pension year 2010. Therefore, the Board finds that the Veteran's total countable annual income has exceeded the MAPR for pension year 2010, regardless of which of the dependency scenarios is correct. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for improved pension purposes for pension year 2010, and entitlement to payment of improved pension benefits for pension year 2010 is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. (CONTINUED ON NEXT PAGE) ORDER The Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2007 pension year, and his appeal is denied. The Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2008 pension year, and his appeal is denied. The Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2009 pension year, and his appeal is denied. The Veteran's annual family countable income is excessive for the purposes of establishing eligibility for nonservice-connected disability pension benefits for the 2010 pension year, and his appeal is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs