Citation Nr: 1331469	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  12-14 188	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Whether the Veteran's countable income exceeds the maximum annual rate permissible for payment of non-service-connected pension benefits.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. Olson, Counsel

INTRODUCTION

The Veteran had active military service from August 1963 to August 1965.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  The claims file is otherwise within the jurisdiction of the Los Angeles, California, RO.

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).


FINDING OF FACT

The Veteran's countable income for all periods pertinent to his claim exceeds the maximum annual pension rates (MAPRs).  He receives Social Security and has not submitted evidence of deductions for the amount he is paid.


CONCLUSION OF LAW

The criteria for payment of non-service-connected pension benefits have not been met.  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

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in December 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how effective dates are determined.  The case was most recently readjudicated in May 2012. 

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim.  There is no evidence that additional records have yet to be requested. 

Nonservice-connected Pension

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) 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.

Historically, the Veteran had been assigned non-service connected pension benefits in 1996.  He was paid based on information that he had no other income.  It was subsequently determined that he was receiving Social Security Benefits in an amount that precluded continued payment of non-service connected pension benefits.  He was notified at that time.  There was a waiver of recovery of an overpayment.  He was also informed that after a time pension could be paid again if his situation changed, specifically more medical expenses or reduction in income.

The Veteran filed a claim for entitlement to non-service-connected pension in September 2009.  Information received from SSA indicates that starting in December 2008, the Veteran was receiving $1,247 per month in benefits.  He received this amount in benefits until December 2011 when he began receiving $1,292 per month in benefits.  SSA records also indicate that Medicare Part B premiums deducted from his benefits was $96.40 for 2009.  In February 2010, VA denied the Veteran's claim for pension benefits.  He was advised that he may still be entitled to pension from the date of claim if his unreimbursed medical expenses reduced his income below the allowable limit; and a medical expense report was included for his completion.  He was told to complete the medical expense report showing his unreimbursed medical expenses for the period September 23, 2009 to December 31, 2010 and to return it to VA no later than December 31, 2011.  The Veteran submitted an incomplete medical expense report.  

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 single veteran was $11,830.  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 $591.  This amount remained the same through December 2011.  Effective December 2011, the MAPR of improved pension for a single veteran was raised to $12,465.  Five percent of the 2011 MAPR is $623.  

In this case, the Veteran has not provided any medical expenses.  Thus, the Veteran's countable income cannot be adjusted.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively ... wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence").   

Consequently, the Board finds that the Veteran's annual income, solely from SSA benefits, clearly exceeded the income limit established by the MAPR for the annualization period beginning in 2009.  

In December 2008, the Veteran was receiving $14,964 per year ($1,247 per month multiplied by 12 months) in benefits.  He received this amount in benefits until December 2011 when he began receiving $15,504 per year ($1,292 per month multiplied by 12 months) in benefits.  SSA records also indicate that Medicare Part B premiums deducted from his benefits was $96.40 for 2009.  

The Veteran's SSA yearly benefit of $14, 964 beginning in December 2008, 2009, and 2010 are clearly higher than the MAPR of improved pension of $11,830 in effect in December 2008, 2009, and 2010; and SSA yearly benefit of $15,504 beginning in 2011 is clearly higher than MAPR of improved pension of $12,465 in effect in December 2011.  The Veteran is, therefore, 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.  

The Board acknowledges the Veteran's statements that this case is about reinstatement of pension payments that were stopped when he began receiving SSA benefits payments.  The Board also acknowledges that the Veteran has on numerous occasions advanced the argument that the President has stated that payment of SSA benefits should not affect VA disability benefits.  

The Board points out that the Veteran has never been in receipt of VA disability compensation which is different than VA pension.  In order to receive VA disability compensation, the Veteran must have a current disability that was incurred in or aggravated by his active duty service.  For VA non-service-connected pension benefits, the disabilities are not required to have been caused by active duty service.  Payments of service connected compensation may be made while appellant is receiving Social Security.  That is not true of non-service connected pension benefits which are income based.

The Veteran 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 pension benefits.  The Board suggests that the Veteran get in touch with his representative and submit the medical expense form required to determine if he is indeed entitled to received non-service-connected pension benefits.


ORDER

The Veteran's countable income exceeds the maximum annual rate permissible for payment of non-service-connected pension benefits; the appeal is denied.

____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs