Citation Nr: 1320046 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-47 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether the Social Security Administration income of the Veteran's daughter should be countable as income for the purpose of calculating the Veteran's nonservice-connected Department of Veterans Affairs (VA) pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from October 1962 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Boise, Idaho, Regional Office (RO). That decision found that the RO had found that the Veteran's daughter was in receipt of Social Security Administration (SSA) compensation and that because she was in the Veteran's custody it was reasonable to assume that such child's income was reasonably available to and for the Veteran. The Veteran has addressed the delay in his appeal being forwarded to the Board and notes that although the RO had scheduled him for a hearing, he had never requested a hearing. In this regard, there is correspondence, dated November 9, 2009, from his service representative indicating that the Veteran "still" requested a hearing before a Decision Review Officer concerning the reduction his monthly pension benefit, even though an overpayment of pension benefits in excess of $11,000.00 had been waived. In the May 2013 Informal Hearing Presentation the Veteran's service representative indicated that that it might be reasonable to believe that because the Veteran's daughter was under 18 years of age, that she might be considered a "helpless" child and, so, a claim for this was inextricably intertwined with the issue on appeal and thus the case should be remanded. The Board does not agree as the Veteran has reported that his daughter is in an accelerated junior high program. In any event, this matter must be addressed and it is referred to the RO for clarification as to whether the Veteran is seeking to have his daughter found to be a helpless child under 38 C.F.R. §§ 3.57, 3.356 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In this case, the Veteran was paid VA pension benefits which were calculated without including SSA income received by his daughter. Upon learning of this, the RO informed the Veteran that there was an overpayment and also started to include the daughter's income for the purpose of calculating the Veteran pension benefits. The Veteran disagrees. A previously established overpayment in excess of $11,000.00 was subsequently waived by the RO, but the Veteran contests the reduction of his VA pension benefits by the inclusion of his daughter's SSA income. He points out that he was in receipt of VA pension benefits at the higher amount (which did not count his daughter's SSA income) for a period of 23 months. As a result, he incurred certain obligations which have continued and that because he was not at fault in this matter, a recognized by the waiver of overpayment of pension benefits, this has created a hardship upon himself and his daughter. The Veteran avers that the RO has not adjudicated the matter of whether the inclusion of the daughter's SSA income constitutes a hardship upon the Veteran and his daughter. The Board agrees that the matter of hardship must be adjudicated. Exclusions from income do not include Social Security disability benefits. 38 C.F.R. § 3.272. Such income is therefore included as countable income. There are several stated exceptions to this rule in VA regulations: Under 38 C.F.R. § 3.272(m): Hardship exclusion of child's available income. When hardship is established under the provisions of § 3.23(d)(6) of this part, there shall be excluded from the available income of any child or children an amount equal to the amount by which annual expenses necessary for reasonable family maintenance exceed the sum of countable annual income plus VA pension entitlement computed without consideration of this exclusion. The amount of this exclusion shall not exceed the available income of any child or children, and annual expenses necessary for reasonable family maintenance shall not include any expenses which were considered in determining the available income of the child or children or the countable annual income of the veteran or surviving spouse. 38 C.F.R. § 3.23(d)(4) provides that: Veteran's annual income. This term includes the veteran's annual income, the annual income of the veteran's dependent spouse, and the annual income of each child of the veteran (other than a child for whom increased pension is not payable under 38 U.S.C. § 1522(b)) in the veteran's custody or to whose support the veteran is reasonably contributing (to the extent such child's income is reasonably available to or for the veteran, unless in the judgment of [VA] to do so would work a hardship on the veteran.) There is a rebuttable presumption that all of such a child's income is reasonably available to or for the veteran. Under 38 C.F.R. § 3.23(d)(6): Reasonable availability and hardship. For the purposes of paragraphs (d)(4) and (d)(5) of this section, a child's income shall be considered ''reasonably available'' when it can be readily applied to meet the veteran's or surviving spouse's expenses necessary for reasonable family maintenance, and ''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. In this case, there has been no determination of whether "hardship" exists in the Veteran's case. Thus, the case must be remanded to determine whether the annual expenses necessary for reasonable family maintenance exceed the sum of countable annual income plus VA pension entitlement, to 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. In correspondence in August 2009 the RO requested that the Veteran complete, sign, and return VA Form 21-527, Income, New Worth and Employment Statement. However, the claim file does not show that the Veteran executed and returned VA Form 21-527. A review of the VA Virtual paperless claims processing system reflects that the Veteran was notified by letters in December 2009, December 2010, December 2011, and January 2013 that he was required to complete an annual Eligibility Verification Report (EVR) to continue receiving VA pension benefits. The Veteran should be asked to submit such financial information as is needed in order to determine (1) hardship exists in this case; and, (2) whether the presumption that all of such a child's income is reasonably available to or for the veteran is rebutted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to submit financial information to determine whether the annual expenses necessary for reasonable family maintenance exceed the sum of countable annual income plus VA pension entitlement, to 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. 2. Then, the RO should readjudicate the claim and specifically address whether (1) hardship exists in this case; and, (2) whether the presumption that all of such a child's income is reasonably available to or for the veteran is rebutted. 3. If the claim remains denied, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and afford them the appropriate period of time within which respond. Then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MARJORIE A. AUER 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).