Citation Nr: 1331620	
Decision Date: 10/01/13    Archive Date: 10/07/13

DOCKET NO.  12-13 150	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus. 

3.  Entitlement to payment of nonservice-connected pension benefits, to include whether the Veteran's annualized countable income exceeds the maximum annual income limit for receipt of payment for such benefits.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Marne Marotta, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1962 to July 1966, with additional service in the reserves. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 

The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's countable annual income for VA pension purposes is in excess of the established income limit to receive nonservice-connected disability pension.


CONCLUSION OF LAW

The Veteran's income exceeds the limit for receiving nonservice-connected pension. 38 U.S.C.A. §§ 1521, 5107 (West 2002); 38 C.F.R. §§ 3.3(b)(3), 3.23, 3.271, 3.272, 3.273 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The duty to notify was met in a May 2009 letter to the Veteran.  

As will be explained, the Veteran's yearly income exceeds the maximum annual pension rate (MAPR), precluding his receipt of pension benefits.  Thus, 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.  

Improved nonservice-connected pension is a benefit available to a Veteran if: the Veteran is permanently and totally disabled, provided that his condition was not the result of the Veteran's willful misconduct, or the Veteran is a patient in a nursing home receiving skilled nursing, or the Veteran is receiving Social Security disability benefits; and the Veteran meets the countable family income and net worth limitations set by Congress. 38 U.S.C.A. § 1521; 38 C.F.R. § §3.2, 3.3(a)(3).  If a Veteran meets these qualifications, his improved pension is calculated to be an amount equal to the difference between the Veteran's countable family income and the annual pension limit set by Congress. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b).

Because improved pension is a need-based program, countable income includes income from most sources, including any eligible dependents.  Generally, it includes earnings, disability and retirement payments, interest and dividend payments from annuities, and net income from farming or a business.  Some expenses, such as unreimbursed medical expenses that are in excess of five percent of the Veteran's MAPR, may reduce a Veteran's countable income.  38 U.S.C.A. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262. 

Payments of any kind and from any source is counted in a Veteran's countable income, unless specifically listed in 38 U.S.C.A. § 3.271.  The listed exclusions include: welfare, maintenance, VA pension benefits, reimbursement for casualty loss, profit from the sale of property, joint accounts 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.

The maximum annual pension rate is set by Congress.  That rate, which may change yearly, is published in Appendix B of the Veterans Benefits Administration Manual M21-1.  38 U.S.C.A. § 1521(a), (b); 38 C.F.R. §§ 3.3(a)(3), 3.23.  The MAPR used to determine eligibility is based on certain status determinations.  In this case, the Veteran has one dependent.  For 2012, the Veteran would be eligible for improved pension if his countable family income is less than $15,493.

On his January 2009 claim form, the Veteran indicated that he receives monthly income, as follows: $1,220 from Social Security; $964 from Military Retired Pay; and $2,360 from Teacher Retired Pay.  The Veteran also indicated that his spouse receives $119 monthly from Teacher Retired Pay.  For his projected income, the Veteran indicated that he expected to receive $27,000 in gross wages and salary and $11,578 in Military Retired Pay.  The Veteran indicated that his spouse's projected income is $1,428.  

The June 2010 rating decision calculated the Veteran's countable family income to be $86,710.  In his May 2012 Notice of Disagreement, the Veteran indicated that he misunderstood the claim form and had $0 in annual earnings.  The Board will treat the Veteran's statement to mean that he does not expect to earn wages or salary in the next year.  

Calculating the Veteran's annual countable income, the Veteran has the following income: $14,640 from Social Security; $11,568 from Military Retired Pay; and $28,320 from Teacher Retired Pay.  The Veteran's spouse has an annual countable income of $1,428.  The Board notes that the Veteran's teacher pension by itself exceeds the income limit for improved pension benefits.  Alternatively, the Veteran's Social Security benefits and his spouse's teacher pension add up to $16,068, which exceeds the Veteran's MAPR limit of $15,493.  As the Veteran's annual family countable income exceeds the statutory income limit, the Veteran is not entitled to improved pension. 

The Board also notes that the Veteran has reported a sizeable net worth on his January 2009 claim form.  The Veteran indicated that he has $6,000 in IRAs, $120,000 in mutual funds and $110,000 in real property (not his primary residence) and $14,200 in cash.  The Veteran's net worth is calculated to be $250,200. Consideration must be given to a Veteran's net worth as an eligibility factor for pension, as set forth above, because it is inconsistent with the pension program to allow a Veteran to collect a need-based improved pension while simultaneously enjoying the benefit of a sizable estate.  

The Veteran's annual income clearly exceeded the income limit established by the MAPR for the period beginning in 2012.  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 claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

As the Veteran's countable income exceeds the maximum annual income limit for receipt of nonservice-connected pension, the claim for entitlement to non-connected pension is denied.  


REMAND

A Formal Finding dated May 2010 indicates that the Veteran's service treatment records (STRs) from his period of active duty were unavailable.  The Veteran thereafter submitted a copy of his August 1962 enlistment and September 1966 separation examinations.  The August 1962 examination indicated a normal whispered voice test, but did not have an audiogram.  The May 1966 separation examination noted puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, of 5 (20), 10 (20), 5 (15), 5 (15) and 0 (5) in the right ear, and 10 (25), 0 (10), 5 (15), 5 (15) and 5 (10) in the left ear.  Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  The Board has converted the ASA units to ISO units in parentheses above.  

Where hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection may still be established if medical evidence shows that it is actually due to incidents during service.  Hensley v. Brown, 5 Vet. App. 155 (1993). 

Although the Veteran was afforded a VA audiology examination in February 2009, his complete STRs, including those dated in August 1962 to July 1966, and the excerpts he submitted were unavailable for review by the examiner.  The examiner based his opinion, at least in part, on STRs dated after the Veteran's separation from active service and during his service in the Air Force Reserves.  The examiner indicated that the Veteran's September 1976 enlistment audiogram for the Air Force Reserves indicated that the Veteran had clinically normal hearing sensitivity for his right ear and a preexisting high-frequency hearing loss in his left ear.  The examiner also indicated that the Veteran's subsequent audiograms showed progressive hearing loss over the years. 

The VA examiner's opinion is not based on a complete review of the record.  Thus, the VA opinion is inadequate and another examination is required.  Barr v. Nicholson, 21 Vet. App. 303 (2007).   

The AMC/RO should also verify all periods of active duty and reserve service, to include any periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).  

Accordingly, the case is REMANDED for the following action:

1.  Specifically identify and verify all of the Veteran's periods of active service, reserve service, ACDUTRA, and INACDUTRA.  Attempt to obtain service treatment records associated with any such periods of service.
 
2.  After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the etiology of his claimed bilateral hearing loss and tinnitus.  The claims file and all pertinent records must be made available to the examiner for review.  The examiner should obtain from the Veteran a detailed history of in-service and post-service noise exposure and post-service history of the onset of hearing loss and tinnitus.  

Based on the examination and review of the record, the examiner must render an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that bilateral hearing loss and/or tinnitus had its clinical onset in service or is otherwise related to the Veteran's service, to include in-service noise exposure.  

If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

The examiner is reminded that VA law and regulation does not preclude service connection for post-service hearing loss where hearing was within normal limits at the time of separation from service.  

3.  Then, readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the 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).


______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs