Citation Nr: 1537717 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 11-30 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether the Veteran's receipt of workers' compensation in 2010 was properly included in his countable income for pension purposes. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty September 1968 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from decisions by a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT The Veteran received a payment of $ 5,789 from a state workers' compensation program in 2010, and pertinent regulatory provisions explicitly state that such money is countable income for pension purposes when received. CONCLUSION OF LAW The Veteran's receipt of workers' compensation in 2010 was properly included in his countable income for pension purposes. 38 U.S.C.A. §§ 1521, 5107 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2014). In this case, however, the resolution of the nonservice-connected pension claim is based upon the application of uncontested facts to the applicable law regarding the rate of payment of these benefits. Consequently, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (July 23, 2004). Nevertheless, the Board does take note of the fact that the Veteran was informed his rate of payment of nonservice-connected pension benefits was based upon his countable income. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Similarly, the Veteran has not identified any outstanding evidence that would affect this determination. The Board adds that general due process considerations have been satisfied regarding the nonservice-connected pension claim. See 38 C.F.R. § 3.103. The Veteran has been provided ample opportunity to present evidence and argument in support of this claim, and he has in fact done so to include his July 2010 Notice of Disagreement (NOD) and November 2011 Substantive Appeal. He has not requested a hearing in connection with his pension claim. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Pursuant to 38 U.S.C.A. § 1521(a) improved (non-service connected) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from non-service connected disability not the result of the Veteran's willful misconduct. The Board notes that the Veteran's basic eligibility for nonservice-connected pension benefits is not in dispute, as such a determination has already been made in his favor. Rather, the issue in this case was whether his receipt of workers' compensation benefits was properly included in his countable income for purposes of calculating the amount of VA pension benefits payable. In this case, the record reflects that a state workers' compensation program awarded the Veteran benefits in April 2010. The total amount of the original award was $8,683.50 less a legal fee which as countable income for the period May 1, 2010 to May 1, 2011, reduced the Veteran's income based pension for this same period. Under the law, qualifying veterans will be paid the maximum rate of pension, reduced by the amount of his countable income. 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.23, 3.273. Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. For the purposes of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum annual pension rate (MAPR) by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(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; 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 paid (in excess of five percent of the MAPR). Income from workers' compensation programs is not specifically excluded under 38 C.F.R. § 3.272. Rather, 38 C.F.R. § 3.271(g) explicitly states that compensation paid by the Office of Workers' Compensations Programs, or pursuant to any worker's compensation or employer's liability statute will be considered income as received. In short, the workers' compensation benefits the Veteran received was properly included as part of his countable income. The Board acknowledges that 38 C.F.R. § 3.271(g) provides that medical, legal, or other expenses incident to the injury or incident to the injury or incident to the collection or recovery of the amount or award or settlement may be deducted from the amount of countable income. As stated above, this was done in this case as the amount of the legal fee was deducted from the total amount awarded to the Veteran and considered for countable income. The record does not reflect, nor does it appear the Veteran contends, the calculation of his legal fee and/or the amount of his net award was in error; nor that he had additional expenses that were not considered in determining the total amount of his net award for countable income purposes. Moreover, there is a presumption of regularity that holds that government officials are presumed to have properly discharged their official duties. Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption. Ashley v. Derwinski, 2 Vet. App. 307 (1992). The record does not contain clear and convincing evidence that this calculation of the net award of workers' compensation benefits in 2010 was incorrect. The Board notes that the Veteran has contended his workers' compensation benefits are analogous to categories of excludable income under 38 C.F.R. § 3.272. However, the fact remains that workers' compensation is not among the categories of excluded income under 38 C.F.R. § 3.272, and, as already noted, 38 C.F.R. § 3.271(g) explicitly states that it shall be included as part of countable income. The Veteran has also contended that the workers' compensation he received should not be counted for the 2010-2011 period as it was for a period from July 2000 to July 2001, and the date of his VA pension award was in April 2009. However, as noted above, nonrecurring income will be counted, for pension purposes, for a full 12-month annualization period following the actual receipt of the income. 38 C.F.R. § 3.271(c). Since the Veteran actually received the payment of these workers' compensation benefits in April 2010, it was properly included as part of his countable income for the one year (12-month) period following said receipt. In view of the foregoing, the Board finds that the Veteran's receipt of workers' compensation in 2010 was properly included in his countable income for pension purposes. As such, the application of uncontested facts to the applicable law regarding the rate of payment of these benefits reflects this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.). (CONTINUED ON NEXT PAGE) RDER Inasmuch as the Veteran's receipt of workers' compensation in 2010 was properly included in his countable income for pension purposes, the benefit sought on appeal is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs