Citation Nr: 1311571	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  11-32 046	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Whether the reduction of VA pension benefits based upon the Veteran's countable income from March 1, 2009, to March 31, 2010, should be affirmed.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel



INTRODUCTION

The Veteran served on active duty in the military from December 1953 to October 1959. 

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which stopped his pension benefits retroactively effective from March 1, 2009, until March 31, 2010.  He subsequently perfected an appeal disagreeing with the computation of his pension payments during this time period.  His pension award was reinstated effective April 1, 2010, so only this preceding period is at issue.

In his December 2011 substantive appeal, the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board, also often and more commonly referred to as a Travel Board hearing.  The hearing was scheduled for September 12, 2012, but he failed to appear for the proceeding, so was a "no show."  He has not provided any reason or justification for his absence or requested to reschedule his hearing, so his hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2012).

The Board, however, has advanced his appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The calculation of the Veteran's countable income from March 1, 2009, to March 31, 2010, was correctly adjusted based upon increased income from a lump-sum retroactive payment from the Social Security Administration (SSA).



CONCLUSION OF LAW

The reduction of the VA pension benefits from March 1, 2009, to March 31, 2010, due to excessive countable income was appropriate.  38 U.S.C.A. §§ 501, 1513, 1521, 1522 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.274 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The facts of this case are not in dispute; resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations used in determining countable income for nonservice-connected pension benefits.  Accordingly, VA's duties to notify and assist are inapplicable.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). 

Under 38 U.S.C.A. § 1513(a), as combined with 38 U.S.C.A. § 1521(a) and (e), a special monthly pension may be paid to a Veteran who is 65 years of age or older, meets the service requirement of 38 U.S.C.A. § 1521, and possesses a minimum disability rating of 60 percent.  See Hartness v. Nicholson, 20 Vet. App. 216 (2006). 

Under 38 U.S.C.A. § 1521(j), a Veteran must have served in the active military, naval, or air service (1) for ninety days or more during a period of war; (2) during a period of war and been discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or, (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 

Basic entitlement exists if, among other things, the Veteran's income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register.  See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3(a)(3).  The MAPR is periodically increased from year to year.  38 C.F.R. § 3.23(a).  The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the Veteran.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b).  In addition, payment of a Veteran's pension shall be denied or discontinued based upon consideration of the annual income of the Veteran, the Veteran's spouse, and the Veteran's children.  38 U.S.C.A. § 1522(a); 38 C.F.R. § 3.274. 

In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions.  38 U.S.C.A. § 1503(a); 38 C.F.R. § 3.271.  Income from the SSA is not specifically excluded under 38 C.F.R. § 3.272.  To the contrary, such income is therefore included as countable income.  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.  38 C.F.R. § 3.272(g)(1)(iii). 

Under 38 C.F.R. § 3.272, exclusions from countable income for the purpose of determining entitlement to improved pension includes:  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. 


Here, in an August 2000 rating decision, the RO granted the Veteran entitlement to pension, as well as special monthly pension (SMP) based on the need for aid and attendance, retroactively effective from March 10, 2000.  At the time, he was 67 years old and had the following service-connected disability:  an appendectomy scar (rated as 0% disabling, i.e., noncompensable).  His nonservice-connected disabilities included coronary artery disease, status post triple bypass (100%); nephrectomy, left post pyelonephritis right (30%); diabetes mellitus (20%); acute pharyngitis (0%); and acute gastritis and residuals of peritonitis (0%).  Service connection since additionally was granted for bilateral hearing loss (60%) in a July 2011 rating decision.

Concerning his pension benefits, in September and December 2010 letters, the RO advised him that it had received information from the SSA that might affect his pension award.  Specifically, SSA had reported that he had received a retroactive lump-sum payment in the amount of $61,088.30 in February 2009.  SSA also had reported that he began receiving monthly benefits of $571 at that time.  So based on that information, the RO proposed to stop his VA pension payments commencing on March 1, 2009.

In the March 2011 determination here on appeal, the RO terminated his pension award retroactively effective as of that date, March 1, 2009.  From that date, his countable income consisted of annual SSA income of $6852 in addition to the retroactive SSA lump-sum payment of $60,517.

Notably, as of December 1, 2008, the MAPR for a Veteran with no dependents and in need of aid and attendance benefits was $18,654.00.  As of December 1, 2009, the MAPR for a Veteran with no dependents and in need of regular aid and attendance was $19,736.  See 38 C.F.R. § 3.23(a)(2).  The MAPR is published in Appendix B of VA Manual M21-1, Part I, and is to be given the same force and effect as if published in VA regulations.  38 C.F.R. §§ 3.21, 3.23.  Thus, his computed countable income of $67,639 clearly exceeded the MAPR for a single Veteran who received aid and attendance during the applicable time period.

Once the retroactive SSA payment was applied to his countable income for one year beginning on March 1, 2009, hiscountable income for the next year greatly reduced, consisting only of his annual SSA income of $6852.  Thus, as of April 1, 2010, his pension award was reopened and his monthly pension benefits were reinstated.  (On July 1, 2010, his countable income remained the same and his spouse was added to his award).

But for the specific one year at issue, as explained, income from the SSA is not specifically excluded under 38 C.F.R. § 3.272.  Therefore, when the RO learned of the retroactive payment from the SSA made to the Veteran in February 2009, it accurately included that additional SSA payment as countable income, and, as a result, correctly computed his countable income from March 1, 2009, to March 31, 2010.

As VA is required by law to adjust pension payments whenever a Veteran's income changes, the adjustment in his pension payment because of the increase in his Social Security income was appropriate as a matter of law.  The Board is sympathetic to his family expenses; however, VA does not take into account expenses such as rent and food when calculating countable income in determining his pension payment.

Therefore, for the reasons and bases discussed, the Board finds that his countable annual income from March 1, 2009, to March 31, 2010, far exceeded the pertinent MAPR for the award of VA disability pension and special monthly pension with no dependents and need for regular aid and attendance.  As his income exceeded the statutory limits, he is not legally entitled to payment of VA pension benefits.  Thus, his claim must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).



ORDER

The Veteran's countable income from March 1, 2009, to March 31, 2010, was excessive for purposes of non-service-connected pension and special monthly pension benefits by reason of need of regular aid and attendance; the reduction of pension benefits during the applicable time period was proper and the appeal is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs