Citation Nr: 1334474	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-36 163A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
and Insurance Center in Philadelphia, Pennsylvania



THE ISSUE

Whether nonservice-connected pension benefits were correctly terminated effective January 1, 2011.  

(The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for the claimed residuals of prostate cancer treatment will be addressed in a separate decision.)  



REPRESENTATION

Appellant represented by:	Pennsylvania Department of Military and Veterans Affairs




WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from December 1954 to December 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision of the RO.  

In September 2013, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ).  The VLJ's actions complied with any hearing-related duties.  A transcript of this hearing is located in the Virtual VA folder.

The VBMS and Virtual VA folders have been reviewed.

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.  An August 2009 letter awarded nonservice-connected pension benefits beginning on May 1, 2009; the Veteran was paid as a single veteran with no dependents.  

2.  The Veteran was married in December 2010, but did not advise VA of his marriage and of his wife's income earlier than January 2012.

3.  In February 2012, the Veteran's nonservice-connected pension benefits were terminated effective on January 1, 2011 based on excessive income.

4.  The Veteran and his wife do not reside together, but are not estranged.  

5.  The Veteran is shown to have countable income that exceeded the applicable maximum annual pension rate (MAPR) beginning on January 1, 2011.  



CONCLUSION OF LAW

The Veteran's nonservice-connected pension benefits were correctly terminated beginning on January 1, 2011.  38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.60, 3.262, 3.271, 3.272, 3.273 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Board acknowledges VA's duties to notify and to assist.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013).  

The United States Court of Appeals for Veterans Claims (Court) has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). 

As discussed, there is no legal entitlement to the benefits claimed and thus, no reasonable possibility that further notice or assistance would aid in substantiating this claim.  

As such, any deficiencies of notice or assistance are rendered moot.  See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).

Regardless, in June 2009, the RO notified the Veteran of the information and evidence needed to substantiate a nonservice-connected pension claim and of his and VA's respective duties with regard to obtaining evidence.  

Additionally, the August 2009 award letter informed the Veteran that it was his responsibility to tell VA if he gained a dependent.  

A February 2012 letter also notified the Veteran that he could reapply for pension if his income decreased or his medical expenses increased.  The Veteran has not submitted evidence showing his medical expenses.  


Laws and Regulations

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 nonservice-connected disability not the result of the Veteran's willful misconduct.  One prerequisite to entitlement is that the Veteran's income not exceed the applicable MAPR specified in 38 C.F.R. § 3.23.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.3(a). 

Pension benefits are paid at the maximum annual rate reduced by the amount of annual income received by the Veteran.  38 U.S.C.A. § 1521(b).  

If the Veteran is married and living with or reasonably contributing to the support of such veteran's spouse, the rate payable shall be reduced by the amount of the Veteran's annual income and, subsequent to subsection (h)(1) of this section, the amount of annual income of family members.  38 U.S.C.A. § 1521(c).

A Veteran shall be considered as living with a spouse, even though they reside apart, unless they are estranged.  38 U.S.C.A. § 1521(h)(2); 38 C.F.R. § 3.360 (providing for the purposes of determining entitlement to pension under 38 U.S.C.A. § 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged).  

A Veteran's spouse who resides apart from the Veteran and is estranged from the Veteran may not be considered the Veteran's dependent unless the spouse receives reasonable support contributions from the Veteran.  38 C.F.R. § 3.23(d).

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, which has been waived) 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).  

Social Security Administration (SSA) income is not specifically excluded under 38 C.F.R. § 3.272.  Such income is therefore included as countable income. 

Income of the spouse will be determined under the rules applicable to income of the claimant.  38 C.F.R. § 3.262(b).

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.  38 C.F.R. § 3.272(g)(1)(iii). 




Analysis

The record shows that in August 2009, the Veteran was awarded nonservice-connected pension benefits from May 1, 2009 and was paid as a single veteran with no dependents.  

In January 2012, the Veteran advised VA that he had married in December 2010.  He submitted a Financial Status Report showing monthly Social Security benefits in the amount of $797.00 (Veteran) and $1,039.00 (spouse).  This amount exceeds the applicable yearly MAPR of $15,493.00 for a veteran and one dependent.

The Veteran does not appear to dispute that he is married or that their combined income exceeds the MAPR.  Rather, he argues that, although they are married, they do not live together and, therefore, his wife's income should not be counted.

In considering whether the Veteran is "living with" his spouse, the Board must address whether they are estranged.  See 38 C.F.R. § 3.60.

A Veteran and spouse are estranged if they live apart because of marital discord.  A Veteran and spouse are not considered estranged if the Veteran demonstrates that there are other reasons for the separation.  For example, the spouses live apart because of family obligations or for medical reasons.  See M21-1MR, Part V.iii.1.C.15.c.  

The testimony at the hearing was to the effect that, because the Veteran's house was too small, his wife stayed with her Grandmother.  The spouse further indicated that she had her own bills and that it is not cost effective to help the Veteran.

The Board sympathizes with the Veteran.  However, the evidence shows that the Veteran is married and that, although they reside apart, this is not due to marital discord.  Rather, this appears to be based on their living arrangements and other factors.  Under the circumstances of this case, the Veteran and his spouse are not shown to be estranged.  

On review, the spouse's income is countable, and thus, income exceeded the MAPR since January 1, 2011 (based on his December 2010 marriage).  As a matter of law, the Veteran's appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). 


ORDER

As termination of nonservice-connected pension benefits on January 1, 2011 was correct, the appeal to this extent is denied.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals



Department of Veterans Affairs