Citation Nr: 1422976 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 12-08 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether the reduction of nonservice-connection pension benefits, effective February 1, 2005, was proper. 2. Whether the termination of nonservice-connected pension benefits, effective January 1, 2007, was proper. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1962 to December 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) at the St. Paul, Minnesota Regional Office (RO), which notified the Veteran that his nonservice-connected pension payments were terminated, effective January 1, 2007, based on substantially increased net worth (the RO noted that the Veteran had not responded to its request to explain his net worth reported on a February 2008 Eligibility Verification Report). This matter is also before the Board on appeal from a March 2009 administrative decision of the PMC at the St. Paul RO, which notified the Veteran that his nonservice-connected pension award was reduced, effective February 1, 2005, based on information it obtained [much of it through an Income Verification Match (IVM) program conducted by the RO] that he had received income that he had not previously reported (the RO noted that the Veteran had not responded to an RO request to confirm the additional income discovered through the IVM). In May 2013, a videoconference hearing (with the Veteran appearing VA's offices in San Antonio, Texas) was held before the undersigned; a transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to the claim. 38 C.F.R. § 3.159 . A preliminary review of the record found that the issues on appeal are not clearly defined. In a letter received in August 2009, the Veteran asserted that he was not in agreement with the RO's decision and wished to appeal it. The Veteran did not clarify what decision he was appealing, and the RO unfortunately did not seek clarification of his statements. Evidently construing the Veteran's letter received in August 2009 as a notice of disagreement (NOD) with the RO's July 2009 determination to terminate the Veteran's pension payments, effective January 1, 2007, based on substantially increased net worth, the RO initially developed the case as one to determine the propriety of the pension termination. See Sstatement of the Case (SOC) issued in March 2012. Notably, however, the Veteran's letter received in August 2009 was in fact dated June 1, 2009, and therefore could not have been intended as an NOD as to the RO determination to terminate pension (which was issued in July 2009) despite the receipt of the letter after the July 2009 determination. Instead, the Board finds that the Veteran's letter may reasonably be construed as a NOD with the RO's March 2009 determination to reduce his pension payments, effective February 1, 2005, based on previously unreported income (largely obtained through an IVM). Then, as the RO was developing the case on appeal, the issue evolved to become whether the Veteran's countable income was excessive for the payment of pension benefits, to include the propriety of the pension termination. See Board hearing discussions and a supplemental SOC (SSOC) issued in December 2012. In short, from his statements (including substantive appeal) and hearing testimony, the Veteran's dispute appears to encompass both the RO's reduction of his pension payments, effective February 1, 2005, and its termination of his pension, effective January 1, 2007. The RO's actions were undertaken for two different reasons (unreported income and excessive net worth), giving rise to two overlapping overpayments, yet the RO developed the case on appeal in such a way that its determinations became essentially intermingled. For example, in the December 2012 SSOC, the RO discussed the termination of the Veteran's pension but justified its action with reasons and bases that referenced the unreported income from sources discovered in part through the IVM, which formed the basis of the pension reduction prior to the termination. For the sake of clarity, the Board characterizes the issues as two separate matters, given that the appeal arose out of two distinct actions undertaken by the RO (i.e., in March 2009 and in July 2009), yet it recognizes that the essential issue is the Veteran's entitlement to pension benefits beginning February 1, 2005, to include whether the RO properly reduced and then terminated his award during this period. The Veteran's entitlement to pension payments for the period beginning February 1, 2005 is dependent upon factors such as the amount of his income (earned and unearned), the size of his net worth, and the amounts of any claimed unreimbursed medical expenses (which offset his income). The RO has attempted to verify such information through various requests of the Veteran. As noted in the introduction, the Veteran has not been responsive to some of these requests, thus prompting the RO determinations to reduce from February 1, 2005, and to terminate from January 1, 2007, his pension payments. At his hearing, the Veteran testified in regard to two sources of earned and unearned income, asserting that he no longer had such income. However, he did not specify when he stopped receiving such income. Nor did he report any income (except Social Security) on Eligibility Verification Reports, received in March 2012, which covered the period of 2007 to 2012. Detailed information as to the receipt and non-receipt of all income is necessary to decide the claims, and the Veteran should be requested to furnish information that corroborates receipt/nonreceipt of income, going back to 2005. Two substantial overpayments in his account have been assessed, which would be re-visited and re-adjusted depending upon the information he provides in the matter to decide whether the RO's actions to reduce and to terminate his pension were justified. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to furnish detailed information to verify his income (earned and unearned), his net worth, and unreimbursed medical expenses, for the period beginning January 1, 2005. Such information may include copies of his Federal income tax returns and bank statements, which would reconcile the disparate income and net worth information he previously reported on various Eligibility Verification Reports over the course of the appeal. 2. After the above development is completed, adjudicate the claims of whether the reduction of pension benefits, effective February 1, 2005, and the termination of pension benefits, effective January 1, 2007, were proper, based on the entire record including pertinent evidence regarding the Veteran's income in his IVM folder. If the claims are granted in whole or in part, the validity of the overpayments created in the Veteran's account should be addressed and the amount of the debts should be adjusted as necessary. If the benefit remains denied, furnish the Veteran an SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2013).