Citation Nr: 1540969 Decision Date: 09/22/15 Archive Date: 10/02/15 DOCKET NO. 12-14 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether income received from Missouri Division of Employment Security (MDES) should be counted as income for pension purposes. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota. Jurisdiction of the case was subsequently transferred to the RO in St. Louis, Missouri. The appeal was remanded in November 2014. The appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran's receipt of $1,584 from Missouri Division of Employment Security during the year 2005 has been verified, and the Veteran has not provided information corroborating that he no longer receives such income, despite several requests to do so. 2. Effective May 1, 2012, the Veteran's VA compensation at the 50 percent rate exceeds the level of pension to which he would be entitled, even discounting the income of $1,584. CONCLUSION OF LAW Income received from Missouri Division of Employment Security was properly counted as income for pension purposes. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). Here, in January 2010, the Veteran completed and returned an Eligibility Verification Report (EVR), reporting his income as consisting solely of his SSA disability benefits. In an award letter dated in January 2010, the Veteran was informed that the income used to adjust his pension rate consisted of the SSA income, as well as "other income" of $1,584. He was told that in his recent EVR, he had stated that the previously counted other income had reduced or stopped, but this income had been verified through a matching program, and, therefore VA would continue to count the income until documentation from the payer was receiving, showing that the income had stopped. Previously, he had been notified on numerous occasions that the rate of his pension depended on his annual income. Thus, the Board finds that the VCAA notice requirements have been satisfied. With respect to VA's duty to assist, the VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). Here, VA received verification from a matching program in July 2007 that the Veteran had received income in $1,584 from the MDES. The Veteran had been requested, on several occasions, to obtain documentation from the source of the income that he was no longer in receipt of the income, but had failed to respond. "The duty to assist is not always a one-way street. If a [claimant] wishes help, [he or she] cannot passively wait for it in those circumstances where [the claimant] may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 190, 193 (1991). In November 2014, the Board remanded the appeal to provide the Veteran with an authorization and consent to release information form so that that the records from the Missouri Division of Employment Security could be obtained and associated with the claims file. He was to be provided with an Authorization and Consent to Release Information Form (VA Form 21-4142) for the Missouri Division of Employment Security for records dating from 2005 to the present, and also told that he can also obtain and submit the records himself and provide a statement or documentation that reflects all income received from 2005 to the present. The RO sent the Veteran a letter in March 2015, in which he was informed that on his application he indicated that he had received treatment from Missouri Division of Employment Securities from 2005 to present, and that he should complete and return an enclosed VA Form 21-4142 Authorization and Consent to Release Information, for each health care provider so that VA could obtain treatment information. He was told that he could obtain and send this information yourself. Although this erroneously referred to "treatment," the MDES and dates were correctly identified, and the Veteran did not respond to this letter, either with the information, or with a request for clarification. Particularly since he was also sent a copy of the remand itself, which provided accurate information, the Board finds that despite the error, the Veteran was sufficiently informed of the need to provide evidence of the termination of income from MDES. Thus, there was substantial compliance with the remand order. There is no indication of the existence of any other potentially relevant information or evidence which has not been obtained. Thus, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Thus, no further notice or assistance to the appellant is required to fulfill VA's duty to assist his in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis The Veteran appeals a January 2010 VA pension award letter, informing him of his pension amount. In January 2010, the RO sent the appellant a letter informing him that his recent Eligibility Verification Report showed that his previous income of $1,584 had been reduced or stopped. The RO informed the appellant that it required documentation from the income payer confirming that the amount had been reduced or that he no longer received income. The Veteran submitted a Notice of Disagreement in December 2010 and indicated that he believed that the payment of $1,584 was in error. In his May 2012 Substantive Appeal, the Veteran further contended that he quit his job and was therefore not entitled to unemployment compensation benefits. Under the improved pension program, the maximum rate of pension, set by law, is reduced by the amount of a Veteran's countable family income. 38 U.S.C.A. § 1521 ; 38 C.F.R. § 3.23. In this regard, pension benefits may only be paid if the appellant's income is below the "maximum rate," which is the amount of pension the Veteran would be entitled to if he did not have any income at all. Any countable income of the Veteran's family will reduce the pension benefits, dollar for dollar, by the amount of the income. It is the responsibility of the recipient of VA benefits to notify VA of all circumstances which will affect entitlement to receive the rate of the benefit being paid, and such notice must be provided when the recipient acquires knowledge of any circumstances which would affect his or her entitlement to receive, or which would affect the rate of, the benefit being paid. 38 C.F.R. § 3.660(a)(1). Where pension payments were made at a lower rate because of anticipated income, pension compensation may be increased in accordance with the facts found, but not earlier than the beginning of the appropriate 12-month annualization period if satisfactory evidence is received within the same or the next calendar year. 38 C.F.R. § 3.660(b)(1) . The Veteran was previously assessed overpayments, including in September 2005 and March 2007, due to retroactive adjustments of his pension award, which were based on his failure to report income he had received to VA. VA learned of the income through matching programs with other government agencies, including Social Security Administration (SSA). In September 2008, his award was again retroactively adjusted for the period from February 2005 through August 2008, due to VA's having learned, via a matching program, that he had received income of $1,584 in 2005. This resulted in an overpayment in the amount of $5,676, based on his anticipated continued receipt of that income. In a statement received in November 2008, the Veteran said that he had not had any additional income since 2002, when he worked part time for the humane society. However, in an earlier statement, dated in July 2005, the Veteran stated that he had stopped working in November 2004. Therefore, the later statement, that he had not worked since 2002, is without probative value because it is contradicted by the earlier statement. In another letter received in November 2008, the Veteran requested an audit of his account. He said that an earlier overpayment, created based on income from the Central Missouri Humane Society, had been waived, and he had not received any income from the Humane Society since then. In reviewing the file, the Veteran's two prior overpayments, which were waived, were based on income for the years 2004 and earlier; the recent income was from a different source, the Missouri Division of Employment Services, in 2005. In January 2009, his request for waiver was denied. He was informed that he had failed to report income from the Missouri Division of Employment Services received in 2005, which had caused the overpayment. In a decision dated in July 2009, the overpayment in the amount of $5,676, was waived; the Veteran was informed of this decision in correspondence from the DMC dated in September 2009. He continued to receive pension benefits in an amount which reflected his presumed continued receipt of "other income" of $1,584. In January 2010, the Veteran completed and returned an Eligibility Verification Report (EVR), reporting his income as consisting solely of his SSA disability benefits. In an award letter dated in January 2010, the Veteran was informed that his monthly amount of pension continued at the previous rate of $123 per month. He was informed that the income used to adjust his pension rate consisted of annual SSA in the amount of $8,760, and "other income" of $1,584. He was told that in his recent EVR, he had stated that the previously counted "other income" had stopped. He was informed that the income had been discovered through an Income Verification Match, and, therefore, VA needed documentation from the income payer that he was no longer receiving the income. He was informed that until evidence was received from the payer, VA would continue to count the income. In June 2010, the Veteran responded that he requested an audit of his pension because he did not recall any additional income being previously reported, nor did he ever recall receiving an Income Verification Report showing the source of this additional income. He believed it to be in error. In July 2010, the Veteran was granted service connection for bilateral hearing loss and tinnitus, with a combined disability rating assigned of 20 percent, effective February 2, 2009. He was informed that his compensation, in the amount of $243 per month, would commence on March 1, 2009. In a statement dated in November 2010, the Veteran disagreed with the January 2010 award which counted $1,584 in income; he stated that he did not recall any additional income, and that he believed an error had been made. An audit of the Veteran's account was again requested. In response, in December 2010, the Veteran was sent a letter from VA, which stated that although this income had not been reported to VA by him, VA had been able to determine that he received the income through an income matching program. VA was required to count this income when determining his benefit until he was able to provide VA with notification from the payer that the income was no longer being received by him. In the April 2012 statement of the case, the Veteran was informed that VA had learned, in July 2007, that he had received $1,584 from the MDES in 2005. He was told to provide the dates that he stopped receiving this income. In his May 2012 substantive appeal, he stated that he did not recall receiving any unemployment, because he had quit his previous job and was therefore not entitled to receive unemployment compensation. In an October 2012 rating decision, the Veteran was granted an increase in his combined disability evaluation to 50 percent, effective April 19, 2012. Although the Veteran claims that he did not receive the income of $1,584 that has been assessed to him, he has not responded to several requests to him to obtain verification that the income had ceased. Moreover, particularly in view of the fact that this had resulted in the third overpayment created in as many years, due to unreported income detected in matching programs, the RO was justified in continuing to count the income until the Veteran submitted corroboration that the income had ceased. See 38 C.F.R. § 3.660(b). In this regard, during 2005, when he received this income, as subsequently verified, the Veteran denied receiving any income other than the SSA and wage income detected on previous verification matches. Therefore, in view of the Veteran's failure to provide corroborating evidence that the assessed annual income of $1,584, had terminated, that income was correctly used as part of his countable income for pension purposes. However, the Board also notes that as a practical matter, even if the Veteran did not receive this income, or if it stopped at point, there would be very little gain to him in the form of VA benefits. The overpayment of $5,676 assessed to him in September 2008, based on countable income which included $1,584 per year for the period from February 2005 through August 2008, was waived by the Committee on Waivers and Compromises (COWC) in a decision dated in July 2009. As a result, if the waived debt were to be found invalid, he would not be entitled to a retroactive award of benefits, because he had already been paid at the higher rate. In addition, effective in March 2009, the Veteran was awarded VA compensation at the 20 percent rate, as the larger benefit, and, therefore, no longer received VA pension. Therefore, at this point, the difference between receiving pension at a higher rate that did not include the income of $1,584 per year would have given the Veteran only approximately $12 per month more. Additionally, in May 2012 he began receiving VA compensation at the 50 percent rate in 2002, which is substantially higher than the maximum amount of pension he would be able receive, given his SSA income. In sum, income of $1,584 from the MDSE for the year 2005 has been verified, and the Veteran has not provided corroboration that he no longer receives the income. As noted above, there must be satisfactory evidence that the anticipated income is no longer being received, in order for it not to be counted. 38 C.F.R. § 3.660(b)(1). The Veteran incurred three overpayments due to unreported income over the course of three years. During the verification process of the earlier overpayments, in August 2005, he stated that his only income consisted of SSA benefits, omitting the $1,584 that was later verified to have been received that year. Given these factors, the Veteran's credibility as to the accurate report of his income is diminished, and it is reasonable to require that the satisfactory evidence that the income has ceased consist of verification from the source of the income, MDSE. As no such information has been received, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Income received from Missouri Division of Employment Security was properly counted as income for pension purposes. ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs