Citation Nr: 1305706 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 09-29 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin THE ISSUE Whether the reduction of VA pension benefits based upon the Veteran's countable income for the period commencing May 1, 2007, was correct. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating action of a Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. In a VA Form 9 received in July 2009, the Veteran requested a hearing before the Board to be held at the RO (a Travel Board hearing). In July 2010, the Veteran was sent notice of the Travel Board hearing scheduled for August 2010, and was informed that if he failed to appear or request a postponement, the case would proceed as though the request for a hearing had been withdrawn. The Veteran failed to appear for the hearing and did not request postponement. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Disability pension is paid to a Veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements, and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct. 38 U.S.C.A. §§ 1502, 1503, 1521 (West 2002). The purpose of VA pension benefits is to provide a subsistence income for Veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the Veteran supports. 38 U.S.C.A. §§ 1521, 1522. The rate of pension payable to an entitled payee is based on the amount of countable income received. The maximum annual rate of pension is established by statute every year and is reduced by the Veteran's countable annual income. "Annual income" includes the Veteran's own annual income, and, where applicable, the annual income of a dependent spouse and, with certain exceptions, the annual incomes of each child of the Veteran in his or her custody or to whose support he or she is reasonably contributing. 38 C.F.R. § 3.23(d)(4) (2012). Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which it was received unless it is specifically excluded by regulation. 38 C.F.R. §§ 3.271, 3.272 (2012). 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. Medical insurance premiums, as well as the Medicare deduction, may be applied to reduce countable income. Social Security Administration (SSA) income is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Donations from public or private relief, welfare, or charitable organizations are excluded from countable income for the purpose of determining entitlement to improved pension. 38 C.F.R. § 3.272. Pursuant to the M21-1MR, Supplementary Security Income (SSI) is not considered countable income for improved pension purposes. See M21-1MR Part V, subpart iii, Chapter 1, Section I, Part 58.b. This is also consistent with 38 C.F.R. § 3.262(f), which states "[b]benefits received under noncontributory programs, such as . . . supplementary security income are subject to the rules contained in paragraph (d) of this section applicable to charitable donations." Charitable donations from public or private relief or welfare programs will not be considered income except as to claims for pension under laws in effect on June 30, 1960. 38 C.F.R. § 3.362(d). The improved pension laws were not in effect on June 30, 1960. The RO has reduced the Veteran's pension based on a conclusion that his wife receives countable income. In a statement in support of claim dated in March 2008, the Veteran asserted that the only income which his wife receives is SSI. In September 2008, the Veteran submitted a letter from the Social Security Administration indicating that his spouse received SSI benefits between January 2007 and September 2008. In the Veteran's Notice of Disagreement dated in November 2008, the Veteran indicated that he has been misled regarding the types of Social Security Benefits. The Veteran further stated that the VA is confusing the issue of the types of Social Security income his wife is receiving. Review of the claims file reveals that the reduction of the Veteran's VA pension benefits based upon the Veteran's countable income for the period commencing May 1, 2007, is based upon the verification of the Veteran's spouse's Social Security benefits in a SHARE Print Screen dated in August 2008. Although the rating action indicates that this report provides information regarding payments for Social Security Disability Insurance (SSDI), the segments of the form regarding "Disability Onset Date" and "SSI Disability Payment Code" are blank. As such, the Board is unclear from review of the record and of this document what type of SSA benefits the Veteran's spouse is receiving. (i.e., whether she receives Social Security Disability benefits, SSI benefits, Social Security retirement benefits, or some combination of different types of benefits). As the case turns on the type of SSA benefits that the Veteran's spouse is receiving, the Board finds it necessary to remand for clarification of the Veteran's spouse's SSA benefits. Accordingly, the case is REMANDED for the following action: 1. Take any and all appropriate action to clarify the type(s) and amount(s) of SSA benefits the Veteran's spouse has been receiving during the appellate period, to include contacting the Social Security administration for clarification. If possible, the Social Security Administration should be requested to provide a month by month breakdown of the type and amount of benefits that have been paid to the Veteran's spouse. 2. Then, after conducting any further development deemed warranted, readjudicate the appeal. If the benefits sought on appeal are not granted, the AMC should issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. 2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).