Citation Nr: 1314325	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  09-11 284A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Whether the Veteran's income exceeded the limit allowable for pension entitlement prior to August 1, 2009.  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

C. Lawson, Counsel

INTRODUCTION

The Veteran served on active duty from December 1951 to December 1955.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in September 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in April 2009.  The issue of entitlement to special monthly pension had been on appeal but that benefit was granted by the RO in a February 2013 rating decision.

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).


FINDING OF FACT

Prior to August 1, 2009, the Veteran's annualized countable annual income for VA pension purposes exceeded the maximum annual income limit for receipt of payment for non-service-connected disability pension benefits.


CONCLUSION OF LAW

The criteria for payment of non-service-connected pension benefits prior to August 1, 2009 are not met.  38 U.S.C.A. §§ 1502, 1521, 1522 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA) Pub. L. No. 106-475, 114 Stat 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159.

VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim.  VA satisfied this duty through an April 2008 letter to the Veteran.  The instant claim is being denied because the Veteran's income exceeds the limits allowed to receive the requested pension.  Where the law is dispositive, as in this case, the claim must be denied due to a lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  As such, any error in VA's duty to assist is harmless.  Moreover, VA has met its duty to assist the Veteran by obtaining relevant evidence.   In cases such as this, VA has no further requirement to meet the duty to notify or assist a claimant, as the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004.  The notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-43 (2002).

The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal.  Based upon the foregoing, the duties to notify and assist the Veteran have been met, and/or no further action is necessary to assist the Veteran in substantiating this claim.


Pension Laws and Regulations

Improved (non-service-connected) pension is a benefit payable by VA to a Veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of the Veteran's willful misconduct.  38 U.S.C.A. § 1521(a).  Basic entitlement to such pension exists if, among other things, a Veteran's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23.  38 U.S.C.A. § 1521(a)(b); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4).  The Veteran's appeal essentially arises from the RO's determination that his income prior to August 1, 2009 exceeded the maximum annual disability pension limit.

A Veteran's "annual income" includes his annual income and the annual income of his dependent spouse.  38 U.S.C.A. § 1522(a); 38 C.F.R. § 3.23(d)(4).  If a Veteran is married and living with or reasonably contributing to the support of a spouse, the rate payable shall be reduced by the amount of the Veteran's annual income and the amount of annual income of the spouse.  38 U.S.C.A. § 1521.  

The maximum annual rate of improved pension for a Veteran with one dependent spouse effective from December 1, 2008; is $15,493.  The rates have not increased since December 1, 2008 as there has not been a cost of living adjustment since that time.  See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23.

In determining annual income, 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.  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).  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).  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).

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 which have been paid in excess of five percent of the MAPR.  Income from SSA disability benefits is not specifically excluded under 38 C.F.R. § 3.272; therefore, SSA disability benefits are included as countable income.

Pension Eligibility Analysis

The Veteran filed this claim for non-service-connected pension benefits in December 2007.  In August 2008, VA found him to be permanently and totally disabled for pension purposes, but not entitled to special monthly pension.  His spouse died in July 2009.  It appears that he then met the income criteria effective from August 1, 2009 with only his income to consider.

Effective from December 2007, he and his spouse received Social Security income of over  $18,000.00 annually.  A supplementary medical insurance benefit in the amount of $2,312 has been used to reduce the Veteran's countable income.  The maximum pension amount for a Veteran with 1 dependent prior to August 1, 2009 was $15,493.  Based on the income information provided and the laws and regulations, it is clear that the Veteran's income for VA purposes exceeds the limit allowable for pension.  Accordingly, pension is not payable prior to August 1, 2009.

The Board has given the most favorable reading possible to the facts of this case, but finds that there is no interpretation of the facts of this case that will support a legal basis for favorable action with regard to the Veteran's claim for non-service-connected pension benefits prior to August 1, 2009.  The above information shows that the Veteran's countable income exceeded the MAPR prior to August 1, 2009.  In light of the evidence, the benefit of the doubt doctrine does not apply, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  As the law, and not the evidence, is dispositive of this claim, the appeal must be denied because of the absence of legal merit or the lack of entitlement under the law.  See Sabonis, 6 Vet. App. 430.


ORDER

Entitlement to non-service connected pension benefits prior to August 1, 2009 is not warranted.  The appeal is denied. 



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs