Citation Nr: 1312565	
Decision Date: 04/16/13    Archive Date: 05/02/13

DOCKET NO.  12-30 786A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania


THE ISSUE

Whether the Veteran's countable income is excessive for the purposes of establishing eligibility for nonservice-connected pension benefits.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

James G. Reinhart, Counsel





INTRODUCTION

The Veteran served on active duty from November 1952 to August 1954.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadephia, Pennsylvania.  

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).

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

A remand is necessary in this case to ensure that VA has a complete record upon which to decide the appeal.  In February 2013, the Veteran's representative submitted a statement with the following content:

The September 21, 2012 Statement of the Case states, evidence used to deny my claim was contained on VA Form 21-526.  However, nothing was mentioned about the medical expenses submitted on May 22, 2012 on three VA forms 21-8416 and three caregivers' reports which cover the periods from January 21, 2012 thru May 1, 2012, January 1, 2011 thru December 31, 2011 and August 20, 2010 thru December 31, 2012.

The VA Form 21-8416s that the Veteran's representative referred to are not associated with the claims file.  The September 2012 Statement of the Case does not refer to any such documents.  

The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled.  38 U.S.C.A. §§ 1502, 1521 (West 2002 & Supp. 2012).  Basic entitlement exists if, among other things, the Veteran's income is not in excess of the applicable maximum allowable pension rate 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) (2012).  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) (2012). 

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. §§ 3.260, 3.261, 3.262, 3.271(a) (2012).  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)(2)(iii) (2012)).

The amount of medical expenses paid by the Veteran is relevant to his countable income, and therefore relevant to whether he is entitled to nonservice-connected pension.  Given that the 21-8416s referred to by his representative are not of record, a remand is necessary so that the agency of original jurisdiction (AOJ) can request that the Veteran resubmit the evidence and so the AOJ can consider the evidence in the first instance. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Send a letter to the Veteran and his representative informing them that the evidence referred to by the representative in the February 2013 writing as submitted in May 2012 (the three VA forms 21-8416 and three caregivers reports which cover the periods from January 21, 2012 thru May 1, 2012, January 1, 2011 thru December 31, 2011 and August 20, 2010 thru December 31, 2012) is not of record.  The letter must request that the Veteran or his representative resubmit the evidence.  

2.  After allowing an appropriate opportunity for the Veteran or his representative to submit the evidence described above, readjudicate the issue on appeal.  If the benefit is not granted, provide the Veteran and his representative with a supplemental statement of the case, allow an opportunity for response thereto, and then return the matter to the Board, if in order.  

The Veteran has the right to submit additional evidence and argument on the matter 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 J. Skaltsounis
Acting 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).