Citation Nr: 1616190 Decision Date: 04/22/16 Archive Date: 05/04/16 DOCKET NO. 08-18 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to nonservice-connected VA pension benefits. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to nonservice-connected VA pension benefits. In July 2010, the Veteran testified before the Board at a hearing that was held at the RO. A transcript of that hearing is of record. In April 2012, the Board remanded this matter for further evidentiary development. The development ordered on remanded was completed, such that the Board finds substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (finding a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the prior remand instructions met with substantial compliance), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issue of whether new and material evidence has been received to reopen the claim of service connection for PTSD has been raised by the record in the representative's brief received in November 2015, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Additionally, in that brief, the representative also claims service connection for "[the Veteran's] current diagnosed disabilities as secondary claims due to the residual effects of his PTSD." Presently, the Board does not have jurisdiction over these issues, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT For the entirety of the appeal period, the Veteran's income exceeds the applicable maximum nonservice-connected pension rate payable to a veteran with no dependents. CONCLUSION OF LAW As the Veteran's countable income exceeded the maximum annual pension rate for the entirety of the appeal period, the criteria for entitlement to 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 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to nonservice-connected VA pension (NSC pension) benefits due to numerous nonservice-connected disabilities which prevent him from working. The Board finds that NSC pension is not warranted as the Veteran's countable annual income for the appeal period is in excess of the established income limit set by law. I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). As will be explained below, the Veteran's NSC pension claim is controlled by his level of annual income. The Veteran's countable income is not in dispute and he has provided financial information for the period in question. The application of the law to the undisputed facts is dispositive; thus no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002), (citing Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.Cir.2002)); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). In any event, the Veteran has been sent proper VCAA notice with respect to this claim and he has submitted the necessary documents for VA to properly adjudicate his claim. II. NSC Pension and Analysis As an initial matter, the Board notes that the Veteran establishes the wartime service requirement for NSC pension benefits. A veteran who meets wartime service requirements and who is permanently and totally disabled due to disability not the result of willful misconduct is entitled to a rate of pension set by law, reduced by the amount of his countable income. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23. Thus, in order to receive pension, the specified wartime service, disability, and income requirements must all be met. See 38 U.S.C.A. § 1521. Generally, in order to establish the wartime service requirement, a veteran must have served on active military duty during a period of war for 90 days or more. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). Along with other periods not applicable here, the laws and regulations recognize February 28, 1961 to May 7, 1975 (the Vietnam era for a veteran who served in the Republic of Vietnam during that period) and August 5, 1964 through May 7, 1975 (the Vietnam Era in all other cases) as periods of war. 38 U.S.C.A. § 101 (9), (11), (29); 38 C.F.R. § 3.2. The Veteran had verified active duty from November 1974 to November 1978. As such, the Board finds that the Veteran served on active duty for more than 90 days during a period officially recognized as a period of war. The crux of the matter turns on whether the Veteran meets the necessary income requirements. In this regard, basic entitlement exists if, among other things, the veteran's income is not in excess of the applicable maximum allowable pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 C.F.R. § 3.3(a)(3). The maximum annual pension rate (MAPR) is periodically increased from year to year. See 38 C.F.R. § 3.23(a). The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran. See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b). The MAPR is 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. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a). Income from the Social Security Administration (SSA) benefits are not specifically excluded; therefore, such income is included as countable income. See 38 C.F.R. § 3.272. 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. See id. In the present case, the Board finds that the Veteran's countable income exceeded the maximum rate possible throughout the appeal period. The Veteran's current claim (Form 21-527, Income-Net Worth and Employment Statement) was received by VA on June 2005. For the initial determination of eligibility for nonservice-connected pension, the claim must be considered for the 12-month annualization period beginning the month following the date of receipt of the claim, or July 2005. See 38 C.F.R. §§ 3.31, 3.273. The Veteran's income was considered for the period from July 2005 to February 2014. In computing the Veteran's countable income for each year in question, the claim has been considered as that of a veteran with no dependents, as reported by the Veteran. In June 2005, on his Form 21-527, the Veteran reported monthly income of $3,600 from his civil service (annually - $43,200; estimated from January 2005 through June 2005 - $21,600). The MAPR for 2005 was $10,579. Thus, the Veteran's countable income in 2005 exceeds the maximum annual pension limit set by law, even when assuming zero income from July 2005 through December 2005. For the period covering January 2006 to February 2014, the Veteran submitted VA Form 21-0516-1, Improve Pension Eligibility Verification Report (for Veteran without children). The term eligibility verification report (EVR) means a form prescribed by the Secretary that is used to request income, net worth, dependency status, and any other information necessary to determine or verify entitlement to pension. An individual who applies for or receives pension shall, as a condition of receipt or continued receipt of benefits, furnish VA an EVR upon request. See 38 C.F.R. § 3.277(c)(1), (3). On these forms, the Veteran indicated that he was not married and he was not receiving any other VA benefits as a veteran, parent, or surviving spouse. From 2006 to 2014, the Veteran's countable income exceeds the maximum annual pension limit set by law. The annual breakdown is as follows based on the Veteran's reports. From January 1, 2006 to December 31, 2006, the Veteran reported annual earnings of $26,481 and annual retirement of $26,520 (calculated from reported monthly retirement of $2,210 per month). The MAPR effective December 1, 2006 was $10,929; effective December 1, 2007, the MAPR increased to $11,181. From January 1, 2007 to December 31, 2007, the Veteran reported annual earnings of $26,643 and annual retirement of $27,252 (calculated from reported monthly retirement of $2,271 per month). From January 1, 2008 to July 31, 2008, the Veteran reported earnings of $16,652 and retirement of $16,261 (calculated from reported monthly retirement of $2,323). Although this period consists of 7 months, the figures already exceed the monthly pension limit $11,830, which was effective December 1, 2008. From July 31, 2008 to July 31, 2009, the Veteran reported annual earnings of $30,227 and annual retirement of $28,814 (calculated, in part, from his report of $2,323 in monthly retirement in 2008 and $2,457 beginning in 2009). From July 31, 2009 to July 31, 2010, the Veteran reported earning $19,107 in annual wages and collected $29,484 in retirement during this annual period (calculated, in part, from his report of $2,457 in monthly retirement beginning in 2009 and continuing through 2010). From July 31, 2010 to December 31, 2010, the Veteran reported $0 annual wages; however, during his period, he collected retirement in the amount of $12,285. From January 1, 2011 to December 31, 2011, the Veteran reported $9,591 in annual wages and $29,484 in annual retirement (calculated from his report of $2,457 in monthly retirement in 2011). The MAPR increased to $12,256 effective December 1, 2011. From January 1, 2012 to December 31, 2012, the Veteran reported $6,098 in annual wages and $30,540 in annual retirement (calculated from his report of $2,545 in monthly retirement in 2012). The MAPR increased to $12,465 effective December 1, 2012. From January 1, 2013 to December 31, 2013, the Veteran reported $5,852.50 in annual wages and $2,424 in SSA benefits (calculated from $202 per month). He also had annual retirement in the amount of $31,056 (calculated from his report of receiving $2,588 per month in 2013). The MAPR increased to $12,652 effective December 1, 2013 and to $12,868 effective December 1, 2014. The Board notes that the Veteran's latest EVR was signed, dated, and received by VA in February 2014; no recent EVR has been received beyond 2014. The Veteran reported having earned $2,299 from January 1, 2014 to "present" which, based on when the EVR was completed, was February 11, 2014. Although 2014 figures for SSA benefits and retirement income were not specifically listed, the Veteran has not indicated that he has ceased to receive SSA or retirement benefits at any point, or that such amounts were reduced. Thus, based on the calculations driven from the data received by the Veteran, it is clear that he exceeded the MAPR, or the income limit set by law, for eligibility for NSC pension benefits during the entire period of the appeal, 2005 to present. The Veteran has not submitted any medical expenses in excess of five percent of the MAPR. See 38 C.F.R. § 3.272. Furthermore, the Board notes that during his hearing, the Veteran stated that his income did exceed the maximum limits in July 2005, but that he experienced several periods of unemployment after July 2005, during which he received no income. As calculated earlier, even when excluding possible income from July 2005 through December 2005, presuming unemployment or no income until he reported retirement starting in January 2006, the Veteran's countable income calculated from January 2005 through June 2005 exceeds the maximum annual pension limit set by law. Therefore, based on the reasoning set forth above, the Board finds that the appeal must be denied, as the Veteran has reported countable income for the entirety of appeal period that is in excess of that allowed for the claimed benefit. As such, VA need not address whether the Veteran is permanently and totally disabled for pension purposes as the claim fails on the income requirement. ORDER Entitlement to nonservice-connected VA pension benefits is denied. ____________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs