Citation Nr: 1319922 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 12-09 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota THE ISSUE Whether the adjustment of disability pension for the period from February 2006 to January 2007 was valid, thereby creating an overpayment in the amount of $1,008.00. (The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is addressed in a separate decision.) REPRESENTATION Appellant represented by: Virginia Gerard-Brady, Attorney ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1973. This matter is on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. This appeal arises from a dispute in amount of countable income that was brought to VA's attention through the Income Verification Match (IVM) program. The Board recognizes that special security measures are applied in such situations. See 26 U.S.C. § 7213(a) (2012); See also Chairman's Memorandum 01-99-23 (October 8, 1999). However, in this case, the amount of income in dispute has been verified by other adjudicative documents as well as the Veteran's own statements. Moreover, the Board has not disclosed any other return information from the Internal Revenue Service. Therefore, the Board may conclude that the text of this decision is not subject to the additional protections required under the IVM procedures. FINDINGS OF FACT In a May 2011 decision, the VA Debt Management Center granted a waiver of overpayment for VA pension benefits in the amount of $1,008.00, that was incurred during the period from February 2006 to January 2007 and the question of whether this overpayment was valid is now moot. CONCLUSION OF LAW There is no longer a justiciable case or controversy as whether the adjustment of disability pension for the period from February 2006 to January 2007 was valid, thereby creating an overpayment in the amount of $1,008.00. 38 U.S.C.A. § 7105)(d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability pension will be paid to a Veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from non-service-connected disability not the result of willful misconduct. 38 U.S.C.A. §§ 1502, 1503, 1521, 38 C.F.R. § 3.3. The purpose of VA pension benefits is to provide a subsistence income for veterans of a period of war who are either totally disabled or 65 years of age or older, and who are otherwise unable to maintain a basic, minimal income level. Id. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the veteran supports. Recipients of pension income are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C.A. §§ 1521, 1522. The rate of pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12-month annualized basis. 38 U.S.C.A. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. The maximum annual rate of pension is established by statute every year on December 1st, and is reduced by the veteran's countable annual income. The term "annual income" includes the veteran's own annual income and, where applicable, the annual income of a dependent spouse. It will also include the income of a child in the veteran's custody (or to whose support the veteran is reasonably contributing) to the extent that such child's income is "reasonably available" or, in VA's judgment, counting such income would result in a hardship to the veteran. 38 C.F.R. § 3.323(d)(4). The term "hardship" shall be held to exist when annual expenses necessary for reasonable family maintenance exceed the sum of countable annual income plus VA pension entitlement. Expenses necessary for reasonable family maintenance include expenses for basic necessities (such as food, clothing, shelter, etc.) and other expenses, determined on a case-by-case basis, which are necessary to support a reasonable quality of life. 38 C.F.R. § 3.323(d)(4). In this case, the evidence indicates that the Veteran has been in receipt of pension benefits since at least the year 2000. However, the issue on appeal specifically arises from a dispute in the Veteran's income in the years 2006 and 2007. Specifically, during period from December 2005 through November 2006, he was entitled by law to pension in the amount of $10,572.00 ($881 per month) which was to be offset by his reported income (substantially comprised of SSA benefits) of $8,052.00. Thus, his total amount of entitled pension for this period was $2,520.00, or $210 per month. For the period from December 2006 through November 2007, he was entitled by law to pension in the amount of $10,929.00 ($910.75 per month) which was to be offset by his reported income (substantially comprised of SSA benefits) of $8,316.00. This total amount of entitled pension for this period was $2,613.00, or approximately $217 per month. However, VA later received information that he received an additional lump sum of $1,008.00 in unearned income in February 2006 (although it has sometimes been stated as $1,006.00). Such income was amortized over a 12-month period from February 1, 2006 to February 1, 2007, and resulted in an apparent overpayment of $839.00 for the period from February through November 2006, and $169.00 for the period from December 2006 through January 2007. The total amount of overpayment was identical to his unreported income: $1,008.00. In March 2011, the RO proposed to reduce the amount of pension he was entitled to for the years 2006 and 2007 in order to reflect that it should be offset by the $1,008.00 he received in additional income. He submitted a timely notice of disagreement to this determination in October 2011, again asserting that it was incorrect to count the additional $1,006.00 as countable income and that there was no overpayment in pension benefits. However, during the course of this appeal, VA's Debt Management Center (a separate entity from the Pension Management Center) issued a rating decision in May 2011, where it determined that there was no evidence of fraud or misrepresentation on the Veteran's part, and granted a waiver for the entire overpayment. As a result, whether the overpayment was validly created is no longer an issue, since the he is no longer obligated to return these funds regardless of whether he properly received them or not. Moreover, the Veteran has not disputed the validity of his pension amounts for any period outside of February 2006 to January 2007. Therefore, there is no longer an issue to consider, and the appeal is dismissed. ORDER The issue of whether the adjustment of disability pension for the period from February 2006 to January 2007 was valid, thereby creating an overpayment in the amount of $1,008.00, is dismissed. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs