Citation Nr: 1314912 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 08-23 174A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the Veteran's income is excessive for nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to August 1975. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). FINDING OF FACT The evidence shows that since December 1, 2006, the Veteran's countable annual income has exceeded VA's maximum annual pension rate for permanent and total disability for a veteran with no dependants who required the regular aid and attendance of another person. CONCLUSION OF LAW The Veteran's countable annual income since December 1, 2006, is in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Improved nonservice-connected pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct. 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2012). Basic entitlement to pension exists if, among other criteria, the 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) (2012). The Veteran's appeal arises from the determination that his income exceeds the maximum annual disability pension limit. The maximum annual rates of pension and death pension payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21 (2012). Effective December 1, 2006, the maximum annual rate of improved pension for permanent and total disability for a Veteran with no dependants who required the regular aid and attendance of another person was $18,234. The maximum annual rate was increased to $18,654, effective December 1, 2007; $19,736, effective December 1, 2008; and $20,447, effective December 1, 2011. Veterans Benefits Administration Manual M21-1, Part I, Appendix B. 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. 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) (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. 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. 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). The evidence shows that the Veteran has been in receipt of SSA benefits since February 2007, with benefits retroactively granted back to February 2005. Therefore, the Board must take those monthly SSA payments into account when calculating the Veteran's countable annual income. The evidence of record shows that, beginning December 1, 2005, the Veteran received monthly payments of $1,247.00 from SSA. Based on that figure, the Veteran's annual SSA income before deductions was $14,964.00. Effective December 1, 2006, the Veteran received monthly SSA payments of $1,288.00, resulting in annual SSA income before deductions of $15,456.00. Effective December 1, 2007, the Veteran received monthly SSA payments of $1,317.40, resulting in annual SSA income before deductions of $15,808.80. Effective December 1, 2008, the Veteran received monthly SSA payments of $1,394.40, resulting in annual SSA income before deductions of $16,732.80. Effective December 1, 2009, the Veteran received monthly SSA payments of $1,394.50, resulting in annual SSA income before deductions of $16,734.00. Effective December 1, 2011, the Veteran received monthly SSA payments of $1,443.90, resulting in annual SSA income before deductions of $17,326.80. In addition, the evidence of record shows that, beginning October 1, 2004, the Veteran received monthly retirement income of $495.00, resulting in annual retirement income before deductions of $5,940.00. Accordingly, the Veteran's total countable annual income was $21,396.00 for the year beginning December 1, 2006; $21,748.80 for the year beginning December 1, 2007; $22,672.80 for the year beginning December 1, 2008; $22,674.00 for the year beginning December 1, 2009; and $23,266.80 for the year beginning December 1, 2011. These combined incomes exceed the applicable MAPR for all periods relevant to the appeal. The evidence of record indicates that the Veteran has received private medical treatment and thus that he may have medical expenses which could be excluded from his countable income for the purpose of determining entitlement to improved pension. 38 C.F.R. § 3.272. However, the Veteran has never provided VA with any information regarding the amount of any medical expenses he has accrued. In this regard, the Board notes that the Veteran's claim was remanded in January 2011 specifically so that the Veteran could be provided with a letter informing him of the types of unreimbursed medical expenses that may be claimed in conjunction with his claim. In accordance with this remand, the Veteran was provided with a letter detailing this information in June 2011. The Veteran did not reply to this letter and to date VA has not received any information regarding the amount of any unreimbursed medical expenses that the Veteran has accrued at any point relevant to this appeal. "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that the Veteran does not have any medical expenses which can be excluded from his countable income for the purpose of determining entitlement to improved pension. Therefore, the Board finds that the Veteran's total countable annual income has exceeded the MAPR from December 1, 2006, to the present. There has been no evidence of record to show that the Veteran's income has changed or been reduced from the levels discussed above. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for improved pension purposes, and entitlement to payment of improved pension benefits is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The Veteran's income is excessive for nonservice-connected disability pension benefits, and his appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs