Citation Nr: 1511095	
Decision Date: 03/16/15    Archive Date: 03/27/15

DOCKET NO.  09-24 180	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to increased monthly nonservice-connected pension benefits.



ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to August 1968.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran was scheduled for a travel board hearing in March 2013. However, the
Veteran failed to appear at this hearing.  The record does not contain any indication of good cause for failing to appear for the hearing or a request to reschedule, the Veteran's request for a hearing is deemed withdrawn.  See 38 CF.R. 20.702 (2014).

In May 2013, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. The case was returned to the Board. For the following reasons, the AOJ is found to have complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998).

This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.   


FINDINGS OF FACT

The Veteran is receiving the maximum amount for nonservice-connected pension benefits payable with no dependents, with consideration of his Social Security income and standard Medicare deductions.


CONCLUSION OF LAW

The criteria for increased nonservice-connected pension benefits have not been met.  38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to notify and assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.10, 3.156(a), 3.159, 3.326(a) (2014).

In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii); 38 C.F.R. § 3.159(d)(3). This is such a case. 

As will be discussed, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable law and regulations. VCAA is therefore not applicable and need not be addressed in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004).

The Veteran was provided a Statement of the Case, which informed him of the laws and regulations relevant to his claim.  Pursuant to the Board's May 2013 remand, the RO provided a clear audit of how it calculated the Veteran's pension benefits, to include consideration of Social Security income Medicare deductions.  The claim was readjudicated in a January 2015 Supplemental Statement of the Case.  These actions comply with the Board's remand instructions. Stegall, 11 Vet. App. at 271.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim on appeal is thus ready to be considered on the merits.

II.  Law and Analysis

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) (West 2014).  Basic entitlement to pension exists if, among other criteria, the Veteran's income is not in excess of the specified maximum annual pension rate (MAPR).  38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4).  
In determining annual income for nonservice-connected pension benefits, all payments of any kind or from any source, including salary, retirement or annuity payments, or similar income shall be included.  38 U.S.C.A. § 1503(a).  Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received except for listed exclusions.  38 C.F.R. 
§ 3.271.  Basic entitlement to such pension exists if, among other things, the Veteran's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23.  The MAPR is set by Congress and published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as published in VA regulations.  38 C.F.R. § 3.21.  

The Board notes that, although the MAPR rates are changed effective December 1 of each year, total income for calendar years governs payment of benefits.  38 C.F.R. § 3.260(f).  Similarly, fractions of a dollar are disregarded for the purposes of the calculations below regarding the annual rates.  38 C.F.R. § 3.260(g).  After determining the monthly or other periodic rate of improved pension under 38 C.F.R. §§ 3.273 and 3.30, the resulting rate, if not a multiple of one dollar, will be rounded down to the nearest whole dollar amount.  38 C.F.R. § 3.29.

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).  

On his June 2007 VA Form 21-526, Application for Pension, the Veteran indicated that he was not married and had no dependents.  The only source of monthly recurring income he reported was $409.00 of Social Security benefits. He reported that he paid $93.50 each month to Medicare, which was the standard monthly deduction.  

The Veteran's monthly nonservice-connected pension rate is determined by subtracting countable income from the maximum annual amount and dividing the result by 12.  

The maximum pension payable to a veteran who is not in need of aid and attendance or is housebound, effective December 1, 2006 was $10,929.00. http://www.benefits.va.gov/PENSION/rates_veteran_pen06.asp.

The Veteran was awarded nonservice-connected pension benefits in July 2007 at a net monthly rate of $550.00.  In the decision, the RO noted that the Veteran's annual Social Security income of $4,902.00 was reduced by $1,122.00 of medical expenses for the year, for a total countable income of $4,326.00.  This amount was subtracted from $10,929.00 and divided by 12, resulting a monthly rate of $550.00.  The Veteran appealed this determination, expressing his opinion that the award should be based on the federal cost of living and not on personal income and expenses and that he could not live on the amount awarded. 

In the May 2009 Statement of the Case, the RO noted that the maximum pension payable to a veteran who is not in need of aid and attendance or is housebound, effective December 1, 2007 was $11, 181.00.00 and effective December 1, 2008 was $11,830.00. The RO noted countable income of $4,441.00 and $4,770.00, resulting in monthly rates of $561.00 and $587.00 for those months.

In the May 2013 remand, the Board noted that the RO appeared to use standard monthly Medicare deduction of $93.50-which was effective December 2006-for all years, despite the fact that this rate had increased from 2008 to the present.  The Board also noted that the claims file did not include any information on the Veteran's Social Security income from 2008 to the present.  As such, the Board requested a clear audit of the calculations used in determining the Veteran's pension benefits. 

In a January 2015 letter, the RO noted that the Veteran's Annual Social Security income from December 2007 was $5,020.00 with medical expenses in the amount of $1,156.00 (standard monthly Medicare deduction of $96.40 per month), reducing countable income to $4,423.00.  The MARP that year for a Veteran with no dependents was $11,181.00.  See http://www.benefits.va.gov/PENSION/rates_ veteran_pen07.asp. His monthly nonservice-connected pension amount was increased to $563.00.  
From December 2008, annual Social Security Income was $5,308.00 with medical expenses in the amount of $1,156.00 (standard Medicare deduction of $95.60 per month), reducing countable income to 4,745.00.  The MARP was $11,830.00.  See http://www.benefits.va.gov/PENSION/rates_veteran_pen08.asp.  His monthly nonservice-connected pension amount was increased to $590.00.

From December 2009, annual Social Security Income was $5,310.00 with medical expenses in the amount of $1,156.00 (standard Medicare deduction of $96.40 per month), reducing countable income to 4,745.00.  The MARP for that year was $11,830.  See http://www.benefits.va.gov/PENSION/rates_veteran_pen09.asp. The monthly rate remained at $590.00, and these numbers remained unchanged in 2010.

From December 2011, annual Social Security Income was $5,494.00 with medical expenses in the amount of $1,199.00, reducing countable income to $4,908.00.   The MARP for that year was $12,256.  See http://www.benefits.va.gov/ PENSION/ rates_veteran_ pen11.asp. The monthly nonservice-connected pension rate increased to $612.00.

From December 2012, annual Social Security Income was $5,590.00 with medical expenses in the amount of $1,258.00 (standard Medicare deduction of $104.90 per month), reducing countable income to $4,955.00.  The MARP for that year was $12,465.  See http://www.benefits.va.gov/ PENSION/rates_veteran_ pen12.asp. The monthly nonservice-connected pension rate increased to $625.00.

From December 2013, annual Social Security Income was $5,647.00 with medical expenses in the amount of $1,258.00 (standard Medicare deduction of $104.90 per month), reducing countable income to $5,048.00.  The MARP was $12,652.00.  See http://www.benefits.va.gov/ PENSION/rates_veteran_ pen13.asp. The monthly nonservice-connected pension rate increased to $633.00.

From December 2014, annual Social Security Income was $5,770.00 with medical expenses in the amount of $1,258.00, reducing countable income to $5,155.00. The MARP is $12,868.  See http://www.benefits.va.gov/pension/current_ rates_veteran_pen.asp.  The monthly non service-connected pension rate increased to $642.00.

In this case, the Veteran has not provided any additional information regarding his income or expenses, or indicated that he is housebound or in need of aid and attendance, such as to warrant a change in the above calculations.

The Board has considered the Veteran's statements to the effect that his Social Security benefits should not be considered income and that he receives less than the federal cost of living. The Board is sympathetic to the Veteran's arguments, but the Board has no authority to grant claims on an equitable basis and must follow the applicable provisions of the law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998).

Accordingly, under the law, the Veteran's claim for an increase in pension benefits is not warranted as he is receiving the maximum amount allowable for nonservice-connected pension benefits payable without spouse or child with consideration of his Social Security income and medical deductions.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).   


ORDER

Entitlement to increased monthly nonservice-connected pension benefits is denied.



__________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs