Citation Nr: 1320342 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 12-07 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the Veteran's countable income exceeds the maximum annual rate permissible for receipt of non-service-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955. He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2012 the Board remanded the claim to allow the RO as the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in developing this claim, including by obtaining his most recent financial status report (FSR) and adjudicating a claim of entitlement to aid and attendance. He supplied additional financial information, as requested, but his claim of entitlement to aid and attendance was denied in a February 2013 rating decision. He has not appealed that decision concerning this other claim, so the only claim at issue concerns his yearly countable income for the purpose of receiving a non-service-connected VA pension. Therefore, the Board finds there has been compliance, certainly substantial compliance, with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Please also 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 The Veteran's countable income for all periods pertinent to his claim exceeds the maximum annual pension rates (MAPRs). CONCLUSION OF LAW The criteria are not met for entitlement to non-service-connected pension benefits. 38 U.S.C.A. §§ 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 In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical file and electronic ("Virtual VA") file. Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). He must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by way of a letter sent to the Veteran in March 2011. The letter advised him of the information and evidence necessary to substantiate his claim, including of his and VA's respective obligations in obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letter also advised him of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (discussing the need to provide notice concerning these "downstream" elements of a claim for service connection, albeit a benefit that instead is intended to provide compensation, so on the premise of disability related to military service, rather than pension which accepts the disability or disabilities are not related to service though nonetheless permanently and totally disabling). Here, as will be explained, although it has been determined the Veteran is entitled to a VA pension, his yearly income exceeds the MAPR, in turn precluding his actual receipt of this benefit. Consequently, at least presently, there is no legal entitlement to this benefit. VA obtained the financial information needed to determine whether his yearly countable income exceeds the MAPR; indeed, as mentioned, this was the reason this claim previously was remanded. Given all that has transpired, it is difficult to discern what additional guidance VA could have provided him as to what further evidence he should submit to substantiate this claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially, as here, another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). Analysis Pursuant to 38 U.S.C.A. § 1521(a), 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 his willful misconduct. Basic entitlement to improved pension exists if, among other things, a Veteran's income is not in excess of the applicable maximum allowable pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3(a)(3). The MAPR is periodically increased from year to year. 38 C.F.R. § 3.23(a). The MAPR is published in Appendix B of VA Manual M21-1 and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b). In addition, payment of a veteran's pension shall be denied or discontinued based upon consideration of the annual net worth or corpus of the estate of the veteran, the veteran's spouse, and the veteran's children. 38 U.S.C.A. § 1522(a); 38 C.F.R. § 3.274. In determining countable annual income for improved pension purposes, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); see also 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a), 3.272. Income received from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. The Veteran filed a claim for entitlement to non-service-connected pension in October 2010. At that time, he reported receiving monthly income of $1,287 from the SSA and a pension of $91.50 a month. He also reported that his wife received $1,266 a month from the SSA. Review of the Veteran's payment schedule from the SSA indicates that he actually received a monthly payment of $1,313.50 per month and his wife received a monthly payment of $1,292.50- a slight difference from the numbers reported by the Veteran in October 2010. Therefore, the Board finds that the Veteran received a yearly income of $15,762 from SSA compensation and his wife received a year income of $15,510 from SSA compensation in 2010. Their combined annual net worth for 2010 was $32,370.00. The Veteran has also submitted lists of annual medical expenses for 2010. Under 38 C.F.R. § 3.272, medical expenses in excess of five percent of the MAPR which have been paid shall be excluded from countable income for the purpose of determining entitlement to improved pension. Effective December 2009, the maximum annual rate of improved pension for a married veteran was $14,643. See VA Manual M21- 1, Part I, Appendix B; 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23. Five percent of this MAPR is $774.00. This amount remained the same through December 2011. Effective December 2011, the MAPR of improved pension for a married veteran was raised to $16,051. Five percent of the 2012 MAPR is $802.00. The Veteran's medical expenses from January 2010 through September totaled $5,546.78. From October 2010 to December 2010 the Veteran's medical expenses totaled $1,172.00. Total medical expenses for the 2010 year were $6,718.78. The Board will therefore exclude $6,718.78 of the Veteran's reported medical expenses from his income (i.e., the amount in excess of five percent of the MAPR). Thus, the Veteran's adjusted countable income for 2010 totaled $25,651.22 and clearly exceeded the MAPR for 2010 of $14,643. For the year 2011, the Veteran reported that he earned a pension of $91.50 a month. His SSA benefits are shown to be $1,313.50 a month in compensation payments for himself and $1,293.10 a month for his wife. Their combined annual net worth for 2011 was $32,377.20. The Veteran has also supplied information on medical expenses for 2011. Included was $115.00 in co-pays for his wife and $4,264.80 in prescriptions and treatment from January 2011 through October 2011. From November 2011 through the end of the year medical expenses totaled $702.36. Total medical expenses for the 2011 year were $5,082.16. The Board will therefore exclude $5,082.16 of the Veteran's reported medical expenses from his income (i.e., the amount in excess of five percent of the MAPR). Thus, the Veteran's adjusted countable income for 2011 totaled $27,295.04 and clearly exceeded the MAPR for 2011 of $14,643. In a November 2012 statement the Veteran indicated that he spent $4,300 in repairs to his car after he was involved in a car accident. He also stated that he spent thousands of dollars in chiropractic care for his spine and neck. In his November 2012 Improved Pension Eligibility Verification Report the Veteran reported he received $1,356.00 a month in SSA benefits and his wife received $1,337.00 a month in SSA benefits. There were also two pensions which totaled $92.35 a month. Their combined annual net worth for 2012 was $33,424.20. The Veteran also provided a list of medical expenses for the 2012 year. These medical expenses totaled $4,529.04 in monthly expenses and $2,040.00 in lump sum payments for a total of $6,569.04 in medical expenses. The Board will therefore exclude $6,569.04 of the Veteran's reported medical expenses from his income (i.e., the amount in excess of five percent of the MAPR). Thus, the Veteran's adjusted countable income for 2012 totaled $26,855.16 and clearly exceeded the MAPR for 2012 of $16,051. Consequently, the Board finds that his annual income clearly exceeded the income limit established by the MAPR for the annualization period beginning in 2010. He therefore is ineligible for payment of non-service-connected pension due to excessive income. Pursuant to the governing legal authority, he does not meet the basic income eligibility requirement to establish entitlement to payment of non-service-connected pension. He should understand that, should his income decrease, or if the amount that he pays out in the form of unreimbursed medical expenses increases, he may reapply for non-service-connected benefits. ORDER In the meantime, however, the Veteran's income is excessive for non-service-connected pension benefits, so his appeal is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs