Citation Nr: 1628962 Decision Date: 07/20/16 Archive Date: 08/01/16 DOCKET NO. 13-30 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether the adjustment to the Veteran's monthly nonservice-connected (NSC) pension payment made in a 2013 decision, effective February 1, 2013, was correct. ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1966. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2013 decision, with notice to the Veteran in July 2013, by the Department of Veterans Affairs (VA) Pension Center located at the Regional Office (RO) in Milwaukee, Wisconsin; this is the Agency of Original Jurisdiction (AOJ). Although the Veteran previously had an appointed representative for his appeal, he revoked this appointment in his August 2013 notice of disagreement. In June 2015, the Board remanded this matter to the AOJ to provide a detailed explanation to the Veteran of how it determined the Veteran's income for pension purposes for the years 2012 and 2013, including the apparent adjustment of an increase in pension payments in the amount of $5 per month. The AOJ provided such a letter to the Veteran in November 2015, followed by a Supplemental Statement of the Case (SSOC) in December 2015. The case returns to the Board. Meanwhile, in May 2015, the AOJ provided a letter to the Veteran explaining the adjustments in his VA pension payments based on his submission in April 2015 of a Medical Expense Report (VA Form 21-8416), along with a form from the Social Security Administration (SSA) concerning his monthly benefits and Medicare deductions for the year 2014. This May 2015 letter covered benefits effective from Feb 1, 2014, forward. After the December 2015 SSOC, in March 2016, the Veteran provided another Medical Expense Report and SSA form concerning his monthly benefits and Medicare deductions for 2015. VA pension benefits are calculated on an annual basis, and the period on appeal was through 2013, as noted in the 2013 AOJ decision and the prior Board remand. Thus, the information regarding the Veteran's income and expenses for 2014 and 2015 is not pertinent to the appeal. FINDINGS OF FACT 1. The Veteran is single and has no dependents; his only reported exclusions from income for the period at issue were unreimbursed medical expenses. 2. Effective December 1, 2012, the Veteran's countable income using projected medical expenses was $7,199, resulting in a pension payment of $438 per month. 3. Effective February 1, 2013, the Veteran's countable income based on actual medical expenses was $7,139, resulting in a pension payment of $443 per month. CONCLUSION OF LAW The criteria for entitlement to additional NSC pension benefits in excess of $443 per month, effective February 1, 2013, have not been met. 38 U.S.C.A. §§ 1503, 1521, 7104(c) (West 2014); 38 C.F.R. §§ 3.23, 3.271-3.272, 20.101(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted in the prior remand, the Veteran's disagreement with the determination on appeal does not appear to be based on any belief that the determination is not legally correct. Rather, he indicated in his August 2013 notice of disagreement and his October 2013 substantive appeal that the additional monthly amount paid to him based on an adjustment in the amount of Medicare expenses, effective as of February 1, 2013, which he described as an extra $5 dollars per month, "means nothing to me." The Veteran asserted that a higher amount of approximately $50 dollars per month "would give me a little more money to live on" and was warranted based on his monthly Medicare expenses of $105 per month. The Veteran has not pointed to any legal basis for a higher amount of pension entitlement. The AOJ notified him of the amounts and reasons for the calculation of his monthly VA pension benefit amount, in compliance with the prior remand. The relevant facts are undisputed, and application of the law controls the outcome of this appeal; therefore, no further notice or development is needed for this appeal. The amount of monthly VA nonservice-connected pension benefit is calculated by subtracting the annual countable income for VA purposes (IVAP) from the applicable maximum annual pension rate (MAPR) set by Congress, dividing by 12, and dropping the cents. The MAPRs typically change on an annual basis and are published in the Federal Register. See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(a); VA Adjudication Procedure Manual, M21-1 MR (for applicable MAPRs). In calculating a Veteran's countable income for purposes of VA nonservice-connected pension benefits, payments of any kind from any source are included unless specifically excluded by law. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. The Veteran's income from the SSA is not specifically excluded under 38 C.F.R. § 3.272; therefore, it must be included in determining his pension entitlement. The only exclusion claimed by the Veteran in this case is medical expenses, namely, his Medicare insurance premiums, which are deducted from his SSA monthly income. Medical expenses in excess of 5 percent of the MAPR will be excluded from an individual's income for these purposes for the same 12-month annualization period in which they were paid. 38 C.F.R. § 3.272(g)(1)(iii). The Veteran is paid VA pension as a single veteran without dependents. Previously, VA had paid the Veteran pension benefits of $432 per month for calendar year 2012 based upon the amount of projected Medicare Part B premiums throughout that year. However, in his February 2013 Medical Expense Report, the Veteran reported having paid $1,198.80 of Medicare Part B expenses during calendar year 2012. This was more than the projected amount used previously. As such, VA recalculated the Veteran's entitlement based on the new information, resulting in a monthly payment of $443 per month, effective February 1, 2013. The AOJ notified the Veteran of this determination in July 2013, leading to this appeal. In the November 2015 letter, the AOJ provided detailed information as to the amounts and calculations used to determine the Veteran's pension payments for the full years 2012 and 2013, as directed in the prior remand. Nevertheless, the Veteran only disputed the change in payment effective as of February 1, 2013. The Board notes that the amounts and calculations provided for payments effective from December 1, 2011, and from February 1, 2012, were correct. Information in those regards will not be discussed further herein, as they are not relevant to the amounts immediately prior to and after February 1, 2013, which is the period on appeal. Effective December 1, 2012, the applicable MAPR for a single Veteran with no dependents increased to $12,465. The Veteran's annual SSA income also increased to $7,774 ($647.90 per month times 12, or $7,774.80, drop the cents) as of that date. The AOJ had been counting the Veteran's annual Medicare premium that was automatically deducted from his SSA benefit as $1,198 ($99.90 per month times 12, or $1198.80, drop the cents), which was the Medicare premium rate effective since December 1, 2011. However, VA only allows a deduction of unreimbursed medical expense in excess of 5 percent of the MAPR, or in excess of $623 for the MAPR effective from December 1, 2012. This resulted in $575 of medical expense that was deductible from the Veteran's income for VA pension purposes. Thus, the SSA income of $7,774 minus the projected deductible medical expense of $575 resulted in an annual countable income of $7,199. The MAPR of $12,465 minus the IVAP of $7,199 equals $5,266. When divided by 12, this resulted in a monthly VA pension payment of $438.83, or $438 after dropping the cents. Effective from February 1, 2013, the MAPR remained $12,465, and the Veteran's annual SSA income remained $7,774. However, VA began using the update Medicare insurance premium of $1,258 ($104.90 per month times 12, or $1,258.80, drop the cents), as noted in the Veteran's March 2013 Medical Expense Report, as well as through SSA forms. The amount in excess of $623, five percent of the applicable MAPR, was $635. Thus, the SSA income of $7,774 minus the deductible medical expense of $635 resulted in an annual countable income of $7,139. The MAPR of $12,465 minus the IVAP of $7,139 equals $5,326. When divided by 12, this results in a monthly VA pension payment of $443.83, or $443 after dropping the cents, effective from February 1, 2013. The AOJ's calculations effective February 1, 2013, were consistent with the Board's determinations herein; and they followed applicable rules for determining VA nonservice-connected pension amounts. Such rules are set by law, as described above, and neither the AOJ nor the Board is authorized to allow a higher amount except as provided in such laws. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a); see also Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (stating that the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for the benefits are not met). Moreover, as the Veteran noted, there was a change of $5 in his monthly VA pension payment: from $438 to $443, effective February 1, 2013. The Board notes that the increase in his annual Medicare premiums, which resulted in this difference in VA pension payment, was $60 (from $1,198 to $1,258 per year), which would also be $5 per month, or $60 divided by 12 months. In sum, as explained above, there is no basis under the law to amend the Veteran's VA pension payment amount, effective February 1, 2013. Additional benefits are not warranted as a matter of law, and the Veteran's appeal must be denied. ORDER The adjustment to the Veteran's monthly pension payment made in a May 2013 decision, effective February 1, 2013, was correct; and the appeal is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs