Citation Nr: 1326382 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-30 786A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Whether the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2009 pension year. 2. Whether the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2010 pension year. 3. Whether the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2011 pension year. 4. Whether the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2012 pension year. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to August 1954. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In April 2013, the Board remanded the matters to allow the Veteran to resubmit pertinent evidence. The record shows that the evidence has been associated with the claims file. Please 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). FINDINGS OF FACT 1. The Veteran's total countable annual income in pension year 2009 was $40,434.00. 2. The Veteran's total countable annual income in pension year 2010 was $30,680.00. 3. The Veteran's total countable annual income in pension year 2011 was $27,843.00. 4. The Veteran's total countable annual income in pension year 2012 was $31,888.00. CONCLUSIONS OF LAW 1. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2009. 38 U.S.C.A. §§ 1503, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). 2. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2010. 38 U.S.C.A. §§ 1503, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). 3. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2011. 38 U.S.C.A. §§ 1503, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). 4. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2012. 38 U.S.C.A. §§ 1503, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although VA has statutory and regulatory duties to notify and assist claimants who submit claims, those provisions are not applicable here where resolution of the claim is as a matter of law. Manning v. Principi, 16 Vet. App. 534 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521 (West 2002 & Supp. 2012). Basic entitlement exists if, among other things, the veteran's income is not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3(a) (2012). 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) (2012). In determining annual income, 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. 38 U.S.C.A. § 1503(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a) (2012). Medical expenses in excess of five percent of the maximum annual pension rate (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(iii) (2012). On an August 2010 claim for pension, the Veteran reported receiving a monthly payment of $1267.50 in Social Security Administration (SSA) benefits and $402.56 and $631.60 in retirement benefits. He also reported that his wife received $622.50 in monthly SSA benefits and had monthly work income of $134.45. He indicated that his wife would be retiring in the next 12 months. A September 2010 report of contact shows that his wife earns around $1200.00 per month before taxes and deductions. Thus, $1200.00 will be used as the wife's monthly work income. Based on the above information, the Veteran's annual income was $49,490.00. Although he indicated that his wife would be retiring soon, he has not advised VA that she has in fact retired. Thus, her work income remains included for each year. Similarly, he has not indicated any change in the amount of SSA benefits. Thus, those amounts remain constant. 2009 Effective December 1, 2008, the maximum annual pension rate for a veteran with one dependent was $15,493.00, and $23,396.00 if receiving aid and attendance benefits. VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. Along with his claim for pension, the Veteran submitted a form with various medical expenses for the year 2009. The amounts included $2313.60 in Medicare Part B insurance payments, $4,440.00 in private insurance payments, and $3,076.00 ($897.00, $236.00, $359.00, $320.00, $250.00, $314.00, and $700.00) in other expenses, for a total of $9829.60. Subtracting 5 percent of the maximum annual pension rate, or $774.00, results in $9,055.60 in deductible medical expenses. Subtracting that from the Veteran's income results in a total countable income of $40,434.00. That amount exceeds the maximum annual pension rate of $23,396.00. Thus, the Veteran was not eligible for pension in 2009. 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 the purposes of establishing eligibility for nonservice-connected pension benefits for the 2009 pension year, and entitlement to payment of improved pension benefits for the 2009 pension year is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2010 No cost of living increase was provided for pension year 2010. Thus, the maximum annual pension rate remained $23,396.00 for a veteran with one dependent receiving aid and attendance benefits. The Veteran's income remained $49,490.00. Medical expenses included $2,364.00 in Medicare Part B insurance payments, $4,680.00 in private insurance payments, $10,800.00 in caregiver costs, and $1,740.00 ($630.00, $395.00, $30.00, $50.00, $35.00, and $600.00) in other expenses, for a total of $19,584.00. Subtracting 5 percent of the maximum annual pension rate, or $774.00, results in $18,810.00 in deductible medical expenses. Subtracting that from the Veteran's income results in a total countable income of $30,680.00. That amount exceeds the maximum annual pension rate of $23,396.00. Thus, the Veteran was not eligible for pension in 2010. The Board notes that the Veteran only reported medical expenses for the months of August through December. Even if the Board were to use prorated figures for those five months, his income would still exceed the maximum annual pension rate. The prorated figures are derived by dividing each number by 12 (number of months in a year) and multiplying that by 5 (number of months being considered). His income would be $20,620.00 and medical expenses would be $8,825.00 (only the monthly recurring expenses related to Medicare and private insurance, caregiver costs, and transportation fees were prorated). The maximum annual pension rate for medical expense purposes would be $6,455.00, 5 percent of which is $322.00. Subtracting that results in $8,502.00 in deductible medical expenses. Subtracting that from the Veteran's prorated income results in a total countable income of $12,118.00. That amount exceeds the prorated maximum annual pension rate of $9,748.00. Thus, the Veteran would still not have been eligible for pension. As above, where the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. 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 the purposes of establishing eligibility for nonservice-connected pension benefits for the 2010 pension year, and entitlement to payment of improved pension benefits for the 2010 pension year is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. 2011 With no cost of living increase in pension year 2011, the maximum annual pension rate remained $23,396.00. The Veteran's income remained $49,490.00. Medical expenses included $2,316.00 in Medicare Part B insurance payments, $4,410.00 in private insurance payments, $10,800.00 in caregiver costs, and $4,895.00 ($360.00, $2,550.00, $30.00, $45.00, $100.00, $45.00, $225.00, $957.00, $33.00, $250.00, $300.00) in other expenses, for a total of $22,421.00. Subtracting 5 percent of the maximum annual pension rate, or $774.00, results in $21,647.00 in deductible medical expenses. Subtracting that from the Veteran's income results in a total countable income of $27,843.00. That amount exceeds the maximum annual pension rate of $23,396.00. Thus, the Veteran was not eligible for pension in 2011. As above, where the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. 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 the purposes of establishing eligibility for nonservice-connected pension benefits for the 2011 pension year, and entitlement to payment of improved pension benefits for the 2011 pension year is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. 2012 Effective December 1, 2011, the maximum annual pension rate for a veteran with one dependent increased to $16,051.00, and $24,239.00 if receiving aid and attendance benefits. VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. The Veteran's income remained $49,490.00. Medical expenses included $2,364.00 in Medicare Part B insurance payments, $4,680.00 in private insurance payments, $10,800.00 in caregiver costs, and $878.00 ($400.00, $180.00, $198.00, and $100.00) in other expenses, for a total of $18,404.00. Subtracting 5 percent of the maximum annual pension rate, or $802.00, results in $17,602.00 in deductible medical expenses. Subtracting that from the Veteran's income results in a total countable income of $31,888.00. That amount exceeds the maximum annual pension rate of $24,239.00. Thus, the Veteran was not eligible for pension in 2012. As in 2010, the Veteran only reported medical expenses for five months, January through May. Even if the Board were to use prorated figures for those five months, his income would still exceed the maximum annual pension rate. His income would be $20,620.00 and medical expenses would be $8,313.00 (again prorating only the monthly recurring expenses). The maximum annual pension rate for medical expense purposes would be $ 6687.00, 5 percent of which is $334.00. Subtracting that results in $7,979.00 in deductible medical expenses. Subtracting that from the Veteran's prorated income results in a total countable income of $12,641.00. That amount exceeds the prorated maximum annual pension rate of $10,099.00. Thus, the Veteran would still not have been eligible for pension. As above, where the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. 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 the purposes of establishing eligibility for nonservice-connected pension benefits for the 2012 pension year, and entitlement to payment of improved pension benefits for the 2012 pension year is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2009 pension year, his appeal is denied. As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2010 pension year, his appeal is denied. As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2011 pension year, his appeal is denied. As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2012 pension year, his appeal is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs