Citation Nr: 1428085 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 10-32 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rate of non-service connected Department of Veterans Affairs (VA) pension benefits. REPRESENTATION Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This claim was previously remanded by the Board in June 2011 and April 2012 for further evidentiary development. The Veteran was scheduled for a video conference hearing before a Veterans Law Judge in March 2011. The Veteran was notified of this scheduled hearing in a letter dated February 2011. The Veteran requested to be rescheduled for his hearing because he was unable to attend the March 2011 hearing due to a medical appointment. The Veteran was subsequently scheduled for a video conference hearing in August 2012. The Veteran was notified of his scheduled hearing in a letter dated June 2012. This hearing was postponed and he was again scheduled for a hearing in August 2013 and notified of this hearing in a letter dated May 2013. The Veteran failed to report to this hearing and has not made any attempt to show good cause for his failure to appear or request a new hearing. Under these circumstances, the request for a hearing is considered to have been withdrawn. FINDINGS OF FACT 1. The Veteran is not service-connected for any disability. 2. The Veteran is permanently and totally disabled from nonservice-connected disability, not the result of his own willful misconduct. 3. The Veteran's spouse's income has been properly considered in determining his level of nonservice-connected pension pay. CONCLUSION OF LAW The criteria for entitlement to an increased rate of nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The RO has generally satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). The RO has effectively notified the appellant of information and evidence necessary to substantiate the claim, evidence that VA would seek to provide and evidence that the appellant was asked to provide. Despite multiple requests, the Veteran failed to submit additional evidence verifying his and his wife's income or their unreimbursed medical expenses. The appellant was not precluded from participating effectively in the processing of this claim and the notice did not affect the essential fairness of the decision. VA has done everything reasonably possible to assist the appellant with respect to his claim that his nonservice-connected pension benefits should be increased. All relevant records have been secured. Analysis The Veteran contends that he is entitled to an increased rate for his nonservice-connected pension benefits. Specifically, the Veteran has alleged that his wife's income is lower than reported and should not impact his rate. However, as outlined below, the Veteran has failed to respond to VA's requests for current income amounts and it was statutorily proper to consider the Veteran's wife's income. In addition, the Veteran asserted in his August 2010 appeal to the Board (VA Form 9) that his wife should be awarded benefits for aid and attendance and homebound status. This claim was denied in September 2010 as there is no evidence of homebound status or need for regular aid and attendance. 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. 38 U.S.C.A. § 1521(a). 38 U.S.C.A. § 1521 further provides for an increased rate of pension, special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38 U.S.C.A. §§ 1521(d), (e); see also 38 C.F.R. §§ 3.351(b), (c) and (d). Basic entitlement to such pension exists if, among other things, a veteran's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. §§ 3.3(a)(3), 3.23(a), (b), (d)(4). The Veteran's appeal essentially arises from the RO determination that he is only entitled to $118 in improved pension benefits per month. The rate was based on the annual rate less his wife's annual income. In determining annual income, all payments of any kind or from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1), (3). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). 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 which have been pain in excess of five percent of the MAPR. Earned wage income is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. The Veteran initially reported that his wife earned $670 every two weeks, except during a two and a half month summer period. His rate of pension was made on that figure, as also reflected in the statement of the case. However, he later reported that her earned income has been less - about $423 every two weeks, except during a two and a half month summer period. He has submitted payment stubs showing a $468 figure. The Veteran also initially reported that he had no unreimbursed medical expenses. However, he later indicated that his wife had medical care expenditures. Due to these discrepancies, the Veteran's claim was remanded by the Board in June 2011 so that he could submit evidence of his and his wife's annual income from 2009 onward and evidence regarding unreimbursed medical expenses for both himself and his wife from 2009 onward. In June 2011, VA contacted the Veteran, again requesting that he submit evidence of him and his spouse's annual income and unreimbursed medical expenses. To date VA has received no additional evidence regarding this matter from the Veteran. Therefore, the Board must rely on the evidence of record as it existed prior to the June 2011 VA examination. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence - the duty to assist is not a one way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran's wife's income was properly considered and a higher rate of non-service connected VA pension benefits is not warranted. Finally, the record fails to reflect that the Veteran meets the criteria for being housebound or for requiring regular aid and attendance. Housebound benefits are warranted if the evidence demonstrates that the Veteran's disability confines him to his home or that he has one condition rated 100 percent disabling and another condition rated 60 percent or more disabling. The Veteran has not submitted evidence of such a degree of disability, despite being notified of these requirement in September 2010. Regular aid and attendance requires a showing that the Veteran required constant help with daily needs such as bathing, dressing, or eating, or; that the Veteran is blind, or; that the Veteran is a patient in a nursing home. The Veteran has not submitted evidence to demonstrate that he meets one of these categories. While the Veteran has asserted that his wife performs all of the chores and does some tasks for him, he has not submitted evidence that he requires constant help with activities such as dressing or eating. Again, the Veteran was notified of what was required to substantiate such a claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an increased rate of non-service connected VA pension benefits must be denied. (CONTINUED ON NEXT PAGE) ORDER The claim of entitlement to an increased rate of non-service connected VA pension benefits is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs