Citation Nr: 1313308 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-27 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to special monthly pension based upon the need for aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. Following the Veteran's April 2010 notice of disagreement, however, the Nashville, Tennessee, VA Regional Office (RO) has handled the Veteran's claim. The Nashville RO is, therefore, deemed the Agency of Original Jurisdiction (AOJ). In February 2013, the Veteran contacted VA via telephone indicating that he does not wish for his appeal to continue and requesting that all action be stopped. Because this statement was indicative of a withdrawal of the appeal, but not in writing as required by VA regulation, the Board obtained clarification from the Veteran's representative as to whether the Veteran indeed wished to withdraw his appeal. In April 2013, the Veteran's representative submitted a written statement unequivocally indicating that the Veteran does not wish to withdraw his appeal before the Board. Thus, the Board is continuing with its adjudication of this claim. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. 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 Veteran if further action is required. REMAND The Board's review of the claims files reveals that further development is required before the issue on appeal is decided. The Veteran filed a claim for special monthly pension based on the need for aid and attendance. He submitted a statement from a Nurse Practitioner in July 2009, followed by a VA Form 21-526 claim for pension benefits in November 2009. He contends that he has disabilities rendering him unable to protect himself from the hazards or dangers incident to his daily environment. However, entitlement to pension benefits, including such benefits based on the need for aid and attendance, may only be granted if a Veteran's income is not in excess of the specified maximum annual pension rate (MAPR). 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4). In the instant case, the Pension Management Center determined in April 2010 that the Veteran's income of $34,548.00 effective from June 2, 2009, exceeded the MAPR of $19,736 for Veterans with no dependents and with the aid and attendance allowance. 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 (2012). 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) (2012). 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) (2012). 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) (2012). A 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) (2012). 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 (2012). 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 (2012). The Veteran has argued that his countable income was inaccurately calculated by VA, primarily arguing that alimony paid from his military retirement to his ex-spouse should not be counted. He also reported in his notice of disagreement that he, at the time, was 86 years of age and requires an electric chair to get around, and also that he has "8 different diseases" and consumes "21 pills every 24 hours." Again, exclusions from countable income include unreimbursed medical expenses that are in excess of five percent of the applicable MAPR 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) (2012). A review of the claims file reveals, however, that the Veteran has not been notified of the various aspects of countable income, or the permissible deductions. In fact, the Veteran has been provided no notice as the evidence necessary to establish eligibility for his pension claim. Moreover, VA has not sought detailed information from the Veteran as to his income, assets, and various expenses, to include unreimbursed medical expenses, all of which may impact his countable income. The Board finds that a remand is necessary in order to afford the Veteran notice as to the information and evidence necessary to establish his claim for pension benefits. Once the Veteran is notified and provided with the opportunity to submit relevant evidence related to his income and pertinent expenses, the RO should then thoroughly consider whether the costs of any relevant expenses, to include any unreimbursed medical expenses, may be deducted under the regulations applicable to Veterans entitled to special monthly pension based on the need for aid and attendance. If it is determined that some or all of the expenses in question are deductible under these provisions, the RO will be asked upon remand to recalculate the Veteran's income based on such a deduction to determine if his income exceeds the MAPR. 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. Provide the Veteran with notice of the evidence necessary to establish his claim for special monthly pension due to the need for aid and attendance, to include provision of any relevant forms utilized by VA to assess countable income and relevant deductions. This should include income and expenses since 2009. 2. Once all relevant evidence is collected, recalculate the Veteran's countable income for pension purposes, effective June 2, 2009. 3. After completing remand directives 1 and 2, and undertaking any additional development deemed appropriate, the RO should readjudicate the Veteran's claim. If the claim remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).