Citation Nr: 1330515 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 06-03 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to nonservice-connected pension. 2. Entitlement to special monthly pension REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the Veteran's entitlement to a nonservice-connected pension. In December 2009, the Board remanded the nonservice-connected pension claim to schedule the Veteran for a hearing before the Board. He did not appear. Subsequently, the Board remanded that claim for additional development in October 2012. The Board also noted that the issue of entitlement to a special monthly pension had been raised by the record, but had not yet been adjudicated by the agency of original jurisdiction. These claims have now been returned to the Board for final adjudication. FINDINGS OF FACT 1. The Veteran has not fully complied with income and net worth reporting requirements that would allow for a determination that he is entitled to a nonservice-connected pension; he also, without good cause or adequate reason, failed to report for a VA examination scheduled in conjunction with this claim. 2. As the Veteran is not entitled to receive nonservice-connected pension benefits, there is no basis for an award of a special monthly pension. CONCLUSIONS OF LAW 1. The legal requirements for entitlement to payment of a nonservice-connected pension have not been met and the Veteran, without good cause or adequate reason, failed to report for a VA examination scheduled in connection with this claim. 38 U.S.C.A. §§ 1503, 1506, 1521, 1522, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.252, 3.271, 3.272, 3.274, 3.277, 3.342, 3.655 (2012). 2. The claim of entitlement to a special monthly pension based on the need for the regular aid and attendance of another person or housebound status is without legal merit. 38 U.S.C.A. §§ 1502, 1503, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The facts herein are not in dispute and resolution of these claims on appeal is wholly dependent on interpretation of the applicable laws and regulations used in determining countable income for nonservice-connected pension benefits and when a claimant fails to report for a VA examination. Accordingly, VA's duties to notify and assist are inapplicable. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. §§ 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). Nonservice-connected Pension Pursuant to 38 U.S.C.A. § 1521(a), 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 non-service-connected disability not the result of the veteran's willful misconduct. Basic entitlement exists if, among other things, the 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) (2012). The maximum annual pension rate (MAPR) is periodically increased from year to year. See 38 C.F.R. § 3.23(a). The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran. See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b). 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. See 38 U.S.C.A. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a). Income from the Social Security Administration (SSA) and VA compensation benefits are not specifically excluded under 38 C.F.R. § 3.272. Such income, therefore, is included as countable income. Medical expenses in excess of five percent of the MAPR, which have been paid, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. See 38 C.F.R. § 3.272(g)(1)(iii). Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses in excess of five percent of the MAPR, which have been paid. As a condition of granting or continuing a pension, VA may require from any person who is an applicant for or a recipient of a pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person, and of any spouse or child for whom the person is receiving or is to receive an increased pension. See 38 U.S.C.A. § 1506; 38 C.F.R. § 3.277(a). An eligibility verification report (EVR) means a form prescribed by the VA Secretary that is used to request income, net worth, dependency status, and any other information necessary to determine or verify entitlement to a pension. An individual who applies for or receives a pension shall, as a condition of receipt or continued receipt of benefits, furnish VA an EVR upon request. See 38 C.F.R. § 3.277(c)(1), (3). If VA requests that a claimant or beneficiary submit an EVR, but he or she fails to do so within 60 days of the date of the VA request, the Secretary shall suspend the award or disallow the claim. See 38 C.F.R. § 3.277(d). The Veteran submitted Income - Net Worth and Employment Statements (VA Form 21-527) in April 2004 and July 2005. They showed no current income, including from the Social Security Administration (SSA). The Veteran is now 69 years old and eligible for SSA retirement benefits. According to a March 2012 note in the claims file, SSA informed VA that the Veteran began receiving SSA retirement benefits in 2006. An EVR (VA Form 21-0515-1 Improved Pension Eligibility Verification Report) was sent to the Veteran in November 2012 as directed in the Board's October 2012 remand. The Veteran failed to respond to this letter. There is no evidence to indicate that he did not receive the November 2012 letter, which was sent to his mailing address of record. Moreover, in its October 2012 remand, the Board also requested a VA examination of the Veteran as he had been afforded VA examinations in May 2003 and August 2004, but no opinion on employability had been rendered and a thorough and contemporaneous examination was needed regarding the current state of his various disorders. According to information in the claims file, the Veteran was sent correspondence on April 11, 2013, requesting his attendance at a VA examination, but the Veteran failed to report and the examination was cancelled. There is no indication in the record that the letter was returned as undeliverable. The Veteran and his representative have not provided any reason or good cause for his failure to report for the scheduled examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Veteran's claim for a nonservice-connected pension is not an original compensation claim, but an "other original claim." Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655; see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). While there is no copy in the claims file of the letter sent to the Veteran scheduling him for the VA examination, the United States Court of Appeals for Veterans Claims (the Court) has held that the presumption of regularity applies to the mailing of VA notice letters regarding scheduling examinations. Kyhn v. Shinseki, 23 Vet. App. 335, 338 (2010). The Court has held that because the regular practices of VA do not include maintaining a hard copy of a veteran's notice of his or her scheduled VA examination, the absence of any such copy from the claims file cannot be used as evidence to demonstrate that the notice was not mailed. Id. at 339. Therefore, the Court has held that VA is not required to maintain a hard copy of a veteran's notice letter regarding an examination. Id. In Hyson v. Brown, 5 Vet. App. 262, 265 (1993), the Court pointed out that VA must show that a claimant lacked "adequate reason" (see 38 C.F.R. § 3.158(b)), or "good cause" (see 38 C.F.R. § 3.655), for failing to report for a scheduled examination. In this case, as discussed above, neither the Veteran nor his representative has provided an "adequate reason" or "good cause" for his failure to report to be examined when VA so requested. As this claim is not an original claim for compensation, but a claim for nonservice-connected pension benefits, it must be denied based on the Veteran's failure to report for an examination. As the Veteran failed to report for the VA examination scheduled in connection with his claim for nonservice-connected pension benefits without providing good cause or an adequate reason, his claim must be denied. The use of the word "shall" under 38 C.F.R. § 3.655(b) leaves no discretion to the Board in this matter. In light of the above, the Board finds that nonservice-connected pension benefits are not warranted. The Veteran was asked to submit an EVR to verify his income, including any relevant changes. As discussed above, VA may require any pension applicant or beneficiary to submit an EVR as a condition of receiving or continuing to receive their pension benefits. In this case, VA informed the Veteran that he needed to submit an EVR for his appeal, as requested by the Board in its remand of October 2012. However, he failed to do so within 60 days of VA's request, or at any time since. As the Veteran has not submitted the requested information, the Board finds that he has not fully complied with the reporting requirements. In addition, the Veteran failed to report for an examination scheduled in conjunction with this claim without good cause or adequate reason. Where the law, and not the evidence, is dispositive, the claim should be denied due to the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the Veteran's claim for nonservice-connected pension is denied. See 38 C.F.R. § 3.277(d); 3.655(b). Special Monthly Pension Special monthly pension is simply an increased level of VA pension benefits that is payable to a veteran by reason of need for aid and attendance or by reason of being housebound. See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.351. As discussed in detail above, the Veteran is not entitled to receive a nonservice-connected pension. As he is not entitled to a nonservice-connected pension, he is not eligible to receive such pension at a higher, special monthly rate under 38 C.F.R. § 3.351. Accordingly, his claim for a special monthly pension also must be denied. (CONTINUED ON THE FOLLOWING PAGE) ORDER Entitlement to nonservice-connected pension is denied. Entitlement to special monthly pension is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs