Citation Nr: 1329434 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 13-02 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from October 1950 to August 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision by a Department of Veterans Affairs (VA) Pension Management Center at the Regional Office (RO) in Milwaukee, Wisconsin. 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). 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 an April 2012 rating decision, the Veteran was found to be eligible for nonservice-connected pension benefits with aid and attendance allowance from October 25, 2011. However, the Pension Management Center further found that the Veteran's income effective October 25, 2011 exceeded the maximum annual pension limit. The Pension Management Center indicated that the Veteran's annual income for 2011 (including his spouse's income for the time period) was $36,429.00. The income limit for a veteran with one dependent for the time period of October 27, 2011 to October 31, 2012 is $23,396.00, the maximum annual pension rate. 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). Section 1521 further provides for an increased rate of pension, in the form of a special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38 U.S.C.A. §§ 1521(d), (e); see also 38 C.F.R. §§ 3. 351(b), (c), (d). A veteran will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Basic entitlement to pension exists if, among other criteria, the Veteran's income is not in excess of the specified maximum annual pension rate (MAPR). 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4). Exclusions from countable income include unreimbursed medical expenses to the extent that they are in excess of five percent of the applicable MAPR. 38 C.F.R. § 3.272(g). Medical expenses are generally deductible from countable income for nursing home fees. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(b). For the purposes of the medical expense deduction, a nursing home is any facility that provides extended term inpatient medical care, and a licensed health professional is an individual licensed to furnish health services by the state in which the services are provided. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(a), (c). If a Veteran has been rated in need of aid and attendance or housebound benefits by VA, all fees paid to an in-home attendant as long as the attendant provides some medical or nursing services for the disabled person are generally deductible from countable income. The services do not have to be furnished by a licensed health professional. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(d). Examples of nursing services are assisting an individual with bathing, dressing, feeding him/herself, and other activities of daily living. All reasonable fees paid to the in-home attendant for personal care of the disabled person and maintenance of the disabled person's immediate environment may be allowed. This includes such services as cooking and housecleaning for the disabled person. It is not necessary to distinguish between medical and nonmedical services. However, services, which are beyond the scope of personal care of the disabled person and maintenance of the disabled person's immediate environment, may not be allowed. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(d). If a Veteran has been rated in need of aid and attendance or housebound benefits by VA or certified by a physician as needing the care provided by the facility, then all reasonable fees paid to an adult day care, rest home, group home, or other facility that does not qualify as a nursing home, may be deducted as medical expenses as long as the facility provides some medical or nursing services for the disabled person. The services do not have to be furnished by a licensed health professional. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(m). The Veteran's appeal arises from the determination that his income exceeds the MAPR. In this regard, the Veteran contends that the costs associated with his care provided at the Jefferson Retirement Home should be deducted from the income calculated by VA for pension purposes, and that should such costs be excluded from income, his income would not exceed the MAPR. The Pension Management Center found that the costs associated with the care provided by the Jefferson Retirement home could not be excluded from income because the facility did not meet VA's definition of a nursing home and did not provide nursing services to the Veteran. The Veteran does not dispute the conclusion that the Jefferson Retirement home is not a nursing home as defined by VA. Instead, he asserts that the expenses in question incurred at this facility are excludable under provisions specifically applicable to Veterans entitled to pension on the basis of the need for aid and attendance codified at M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(d) or (m). Under these provisions, all reasonable fees paid to an "adult day care center, rest home, group home, or a similar facility that does not qualify as a nursing home" may be deducted as medical expenses as long as the facility provides some medical or nursing services for the disabled person. This provision stipulates that these services do not have to be furnished by a licensed health professional. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(a). Review of the record shows that the Veteran was found to be in need of aid and attendance in April 2012 based upon medical evidence which showed that he had mild cognitive impairment and he could not prepare meals for himself any longer or travel alone due to this cognitive impairment. An October 2011 Medical Statement for Aid and Attendance indicates that the examining physician determined that the Veteran had mild cognitive impairment, depression, and impaired hearing. The examining physician found that the Veteran could feed himself but he could not prepare meals due to memory loss and he would be unsafe using a stove or oven. The examining physician also stated that the Veteran could travel but not without a companion due to his cognitive impairment. In a July 2012 statement, the Veteran asserts that he pays an attendant to administer medication, provide for his personal needs, cook his meals, and clean his home. The Veteran asserts that the Jefferson Retirement home provides for his activities of daily living by providing 24 hour supervision, housekeeping, three meals a day, emergency pull cords, and locked doors. The Veteran and his representative argue that due to the Veteran's cognitive impairment, he requires assistance with eating and medication management and supervision to protect him from the hazards of daily living. They assert that this constitutes custodial care and therefore the payments for care at the Jefferson Retirement home should be deducted from the Veteran's income as a medical or nursing services expense. Review of the record shows that the Veteran provided a statement from the Jefferson Retirement home which sets forth the total monthly fee and lists the services provided by the Jefferson Retirement Home. The Board finds that the Veteran should be given an opportunity to provide an itemized statement from the Jefferson Retirement home which sets forth the monthly fee or amount for each of the services provided to assist the Veteran with his inability to care for his basic needs to include the monthly expenses for meal preparation and meals, supervision when he leaves the premises, housecleaning, and medication management. If the Veteran submits an itemized list of expenses from the Jefferson Retirement Home, the Pension Management Center should consider whether the costs of the expenses for meals and meal preparation, supervision outside of the home, house cleaning, and medication management, and expenses for any additional nursing services may be deducted under the provisions of M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(d) or (m). If it is determined that some or all of the expenses in question are deductible under these provisions, the Pension Management Center should recalculate the Veteran's income based on such deductions to determine if his income exceeds the MAPR. Review of the record further shows that the Veteran initially filed the claim for nonservice-connected pension benefits on October 25, 2011. His spouse passed away on November 4, 2011. The Board finds that the Pension Management Center should recalculate the Veteran's income to determine if his income exceeds the MAPR for a veteran with no dependents for the time period in question. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request the Veteran to provide an itemized statement from the Jefferson Retirement home which sets forth the monthly amount for each of the services provided to assist the Veteran with his inability to care for his basic needs to include the monthly expenses for meal preparation and meals, supervision when he leaves the premises, house cleaning, and medication management. 2. Make a determination as to whether the costs of the expenses for meals and meal preparation, supervision outside of the home, house cleaning, and medication management, and expenses for any additional nursing services may be deducted under the provisions of M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(d) or (m) and recalculate the Veteran's income based on such deductions to determine if his income exceeds the MAPR. 3. Recalculate the Veteran's income to determine if his income exceeds the MAPR for a veteran with no dependents from December 1, 2011. 4. If the claim remains denied, the Veteran and his representative should be provided with an appropriate supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. 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). _________________________________________________ K.J. ALIBRANDO 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).