Citation Nr: 1317555 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 11-28 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from August 1944 to November 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his October 2011 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. The scheduled hearing was postponed, and eventually canceled, by the Veteran. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d),(e) (2012). The issues of entitlement to service connection for a heart disability, spine disability, vision disability, and dental disability are addressed in a separate decision. 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 The Veteran's countable annual income for VA pension purposes exceeds the maximum annual income limit for receipt of payment for nonservice-connected disability pension benefits. CONCLUSION OF LAW The criteria for payment of nonservice-connected pension benefits have not been met. 38 U.S.C.A. § §§ 1502, 1521, 1522 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in February 2010, prior to the initial unfavorable AOJ decision issued in April 2010. This notice informed the Veteran of the evidence necessary to support a claim for nonservice-connected pension, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. In addition, the letter addressed the evidence required to substantiate disability ratings and effective dates. Therefore, the Board determines that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. The Veteran's service records and benefits records from the Social Security Administration (SSA) were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Nonservice-connected Pension 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). Basic entitlement to such pension exists if, among other things, the Veteran's income is not in excess of the maximum annual pension rate 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 pension rates are published in Appendix B of VA Manual M21-1 (M21-1) which is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21. The maximum annual rate of improved pension for a veteran with 1 dependent is $15,493. 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 5 percent of the maximum annual rate of improved pension. Income from SSA disability benefits is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. On his VA Form 21-526, Veteran's Application for Compensation and/or Pension, the Veteran reported a monthly income from the SSA of $725 each for him and his spouse. However, VA's internal inquiry into the SSA system found that the Veteran's monthly benefit in December 2009 was $1,220.50 and that his spouse received a monthly benefit of $532.50, for a combined family benefit of $1,753.00 per month. The annual combined family benefit is $21,036.00. In addition, the Veteran reported on his claim form annual income from employment of $3,000.00, bringing the total countable income to $24,036.00. This figure exceeds the maximum annual rate of improved pension by $8,543.00. Unreimbursed medical expenses that exceed 5 percent of the maximum annual pension rate may be used to reduce annual income. To be deducted from the annual income, the Veteran's claimed medical expenses must therefore exceed $774.65 (5 percent of $15,493). The Veteran denied having medical expenses on his claim form. However, the information from SSA showed that he and his spouse pay $96.50 each per month for Medicare, totaling $2,316.00 per year. Subtracting $774.65 from $2,316.00, the amount of deductible medical expenses is $1,541.35. This amount does not exceed the difference between the Veteran's income and the maximum annual rate of improved pension. Thus, the Veteran's countable income exceeds the amount allowed for a grant of nonservice-connected pension, and the claim must be denied. In other words, subtracting $1,541.35 from the household income of $24,036.00, yields a total of $22,494.65 which is above the income limit of $15,493. The Board has also considered the doctrine of reasonable doubt. However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim and the doctrine is not for application in this case. 38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to nonservice-connected pension benefits is denied. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs