Citation Nr: 1308775 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-14 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin THE ISSUE Whether the reduction of nonservice-connected pension was proper for the period since September 30, 2008. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to January 1966. This matter is on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. This rating decision reduced the Veteran's nonservice-connected pension effective December 1, 2006. However, according to information contained on his Virtual VA file, the Veteran submitted a claim for waiver of overpayment for the period from December 1, 2006 to September 30, 2008, which was granted by the Pension Management Center in March 2009. As a result, whether or not the reduction was improper for this period of time is moot, since there is no change to the benefit the Veteran actually received for this period of time. Therefore, the issue is recharacterized as above. 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 will be 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 non-service-connected disability not the result of willful misconduct. 38 U.S.C.A. §§ 1502, 1503, 1521, 38 C.F.R. § 3.3. The purpose of VA pension benefits is to provide a subsistence income for veterans of a period of war who are either totally disabled or 65 years of age or older, and who are otherwise unable to maintain a basic, minimal income level. Id. 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. Recipients of pension income are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C.A. §§ 1521, 1522. The rate of pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12-month annualized basis. 38 U.S.C.A. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. The maximum annual rate of pension is established by statute every year and is reduced by the veteran's countable annual income. The term "annual income" includes the veteran's own annual income and, where applicable, the annual income of a dependent spouse. It will also include the income of a child in the veteran's custody (or to whose support the veteran is reasonably contributing) to the extent that such child's income is "reasonably available" or, in VA's judgment, counting such income would result in a hardship to the veteran. 38 C.F.R. § 3.323(d)(4). A child's income shall be considered "reasonably available" when it can be readily applied to meet the veteran's expenses necessary for reasonable family maintenance. The term "hardship" shall be held to exist when annual expenses necessary for reasonable family maintenance exceed the sum of countable annual income plus VA pension entitlement. Expenses necessary for reasonable family maintenance include expenses for basic necessities (such as food, clothing, shelter, etc.) and other expenses, determined on a case-by-case basis, which are necessary to support a reasonable quality of life. 38 C.F.R. § 3.323(d)(4). In an August 2004 rating decision, the Veteran was granted entitlement to nonservice-connected pension. At the time this benefit was granted, the calculated payment was based on his having two minor children as dependents. The children's status as dependents has not been disputed. Approximately two years later, VA received a report from the Social Security Administration (SSA) indicating that, beginning in October 2006, the Veteran began receiving SSA benefits, informed the Veteran that such income is included as "countable income" for purposes of rate of pension calculations. See 38 C.F.R. § 3.272 (2012) (listing what forms of income are excluded from "countable income"). VA also learned from the SSA that each of the Veteran's two children have also been receiving SSA benefits due to the death of their mother, the Veteran's ex-spouse. The Veteran does not appear to dispute that he is receiving SSA benefits or that such benefits are countable income for VA purposes, and it appears to be no disagreement that his daughter is no longer a dependent. Rather, his primary argument on appeal is that his son's SSA benefits should not be included in his annual income, despite his status as a dependent, because such income is not "reasonably available." He has also argued, in the alternative, that the reduction in benefits presents a hardship that prevents a reasonable quality of life. In support of his argument, the Veteran's representative submitted an informal hearing presentation in February 2013, requesting that this issue be remanded in order to allow the Veteran to submit additional evidence that his son's income was not "reasonably available." According to a February 2010 Statement of the Case (SOC), the Veteran did not submit any evidence in support of his argument before reducing his annual rate in October 2008. However, his failure to submit evidence at that time does not preclude him from submitting evidence now. This especially so in this case where, as was noted above, the relevant period on appeal is for the period since September 30, 2008. Thus, information from prior to that date is of limited relevance. Moreover, it is understood that the Veteran's annual rate will continue to be subject to a number of dynamic variables, including the status and age of his dependents, whether such dependents are seeking additional education, and his own income. As it stands now, there is very little information in the claims file regarding the Veteran's financial situation since 2008. Therefore, it is appropriate that the issue be remanded in order to obtain a current picture of his financial and family situation before considering what his countable income and appropriate annual pension should be. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter that fully informs him as to how his annual rate for pension is calculated, to include factors such as what constitutes countable income and what sources of income are excluded from this calculation. 38 C.F.R. § 3.159. 2. Acquire all relevant income information for both the Veteran and any dependents for the period since 2008. The RO should consider performing an income verification match with the Internal Revenue Service if it deems appropriate. For the periods of time which any of the Veteran's dependents received income, he should be provided an opportunity to submit evidence as to whether such income is "reasonably available." He should also be afforded the opportunity to explain whether any reduction in pension will result in a "hardship" as defined by 38 C.F.R. § 3.24(d)(6). 3. Perform an audit and generate a written account of all monies paid and withheld related to the Veteran's pension for the period since September 30, 2008. This audit should clearly reflect, on a month-by-month basis, the amounts actually paid to the Veteran, as well as the amounts properly due. A copy of the written audit should be associated with the claims file and another provided to the Veteran and his representative. The Veteran must be informed of the amount of any debt he owes, if any, and how the debt was calculated. The Veteran should be afforded a reasonable amount of time to challenge the existence or amount of any debt should be provided. 4. After the completion of the above, readjudicate the issue on appeal. If any benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time for response. 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). _________________________________________________ F. JUDGE FLOWERS 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).