Citation Nr: 1633377 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 12-11 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether the Veteran's countable income exceeded the maximum annual pension rate (MAPR) for special monthly pension (SMP) based on the need for aid and attendance prior to his death for substitution purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1954. He died in January 2013. The appellant is his surviving spouse and has been substituted as the claimant on appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This case was previously before the Board in August 2014 at which time it was remanded for additional development. This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems. Notably, in a July 2016 Informal Hearing Presentation the Veteran's representative wrote: "It is obvious that the widow's DIC [Dependency Indemnity Compensation] claim is missing, as is all the substitution paperwork. It is also possible that a completed VA Form 21-22 is out there to be found and placed on record. Finding that would prevent a lot of bother." The Board notes that such "missing" documents are actually of record. Specifically, in Virtual VA, there is a VETSNET Award Print dated May 22, 2013 includes the appellant's March 2013 DIC claim. Also, in VBMS, there is January 2, 2014 letter notifying the appellant that her claim was being sent to the Board. Since there is no formal letter to address substitution, VA uses the acknowledgement letter of moving the appeal as such. Only if substitution is denied will the appellant be notified and provided with appeal rights. Furthermore, the March 2013 VA Form 21-22 does not need to be signed by a representative since no specific person was identified. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to his death in January 2013, the Veteran was unable to care for himself and the impairment caused by the Veteran's nonservice-connected disabilities required the care or assistance of another on a regular basis. 2. For the entire period on appeal, the Veteran's countable annual income exceeded VA's maximum annual pension rates for permanent and total disability for a veteran with no dependents who required the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits during the entire appeal period. 38 U.S.C.A. §§ 1503, 1541 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2015). 2. The criteria for special monthly pension benefits based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 1502(b), 1521(d) (West 2014); 38 C.F.R. §§ 3.23, 3.351(b) and (c), 3.352(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). With respect to the appellant's claim, as will be explained fully below, in the present case there is no legal basis upon which this benefit may be awarded. As such, the appellant's claim must, regrettably, be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of VA's notice and assistance rules have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). VA sent a notice letter to the appellant in August 2014. The Board adds that general due process considerations have been satisfied regarding this nonservice-connected pension claim. The appellant has been provided ample opportunity to present evidence and argument in support of this claim, and VA obtained the financial information needed to determine whether the Veteran's annual countable income exceeded the maximum annual pension rate (MAPR) prior to his death. While the 2011 tax return information submitted by the appellant is incomplete, the Board finds that it has given the appellant a reasonable opportunity to provide such evidence. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) ("Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim."); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). There would be no purpose served in remanding this case for any additional notification. As such, no further action is required. 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). 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) (2015). The appellant's appeal arises from the determination that the Veteran's income exceeded the maximum annual disability pension limit prior to his death in January 2013. In determining annual countable income, all payments of any kind or from any source are counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271(a). The following are excluded from countable income for the purpose of determining entitlement to pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued 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); medical expenses that are in excess of five percent of the MAPR; and various other inapplicable items. 38 C.F.R. § 3.272. Social Security Administration (SSA) income is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Permissible medical expenses include nonprescription drugs and health insurance premiums, but not life insurance premiums. See VA Adjudication Procedure Manual, M21-1MR, Part V, subpart I, Chapter 3, Section D, 13(k), (l). The maximum annual rates of pension and death pension payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. Effective December 1, 2009, the maximum annual rate of improved pension for permanent and total disability for a veteran with no dependents who required the regular aid and attendance of another person was $23,396. The maximum annual rate was increased to $24,652, effective December 1, 2012 and was increased to $25,022, effective December 1, 2013. See Veterans Benefits Administration Manual M21-1, Part I, Appendix B. To be deducted from countable income, medical expenses must have exceeded five percent of the yearly MAPR, or $1,169 from 2009 through 2011, $1,232 in 2012, and $1,251 in 2013. See id. Special monthly pension at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C.A. §§ 1502(b), 1521; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, a veteran must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C.A. § 1502(b); 38 C.F.R. § 3.351(c). Private and VA medical records show that the Veteran was diagnosed with Alzheimer's in January 2005 and, by rating decision dated in July 2006, the RO granted SMP based on the need for aid and attendance effective October 17, 2005. Subsequently, in a March 2007 letter, the Veteran was informed that he was no longer entitled to SMP as his income, effective November 1, 2005, exceeded the maximum annual limit set by law for disability pension at the aid and attendance rate. The Veteran submitted a claim for special monthly compensation (SMC) based on the need for aid and attendance in May 2009 and, by rating decision dated in June 2010, the RO denied SMC, finding that as the Veteran was not service connected for any disabilities, he did not meet the requirements for SMC. The Veteran disagreed with this decision. Notably, since disagreeing with the June 2010 rating decision, the RO has characterized the issue on appeal as entitlement to SMP rather than entitlement to SMC. The weight of the evidence of record does not reflect that the Veteran's physical condition improved prior to his death in January 2013. As such, the Board finds that the evidence of record demonstrates that the Veteran was in constant need of the regular assistance of another person for the entire appeal period. Accordingly, the Board finds that the evidence of record establishes factual need for aid and attendance. 38 U.S.C.A. § 1502(b); 38 C.F.R. § 3.351(c). As such, the only remaining question is whether the Veteran's income exceeded the specified MAPR for any part of the appeal period. After a review of all the evidence of record, the Board finds that his adjusted countable income exceeded the maximum countable income for improved pension purposes. For the year 2009, the evidence shows that the Veteran was in receipt of SSA benefits of $29,650. The evidence reflects that he also was in receipt of rental income of $7,550 for a total of $37,200. However, the Veteran's tax return shows that he had unreimbursed medical expenses totalling $12,369. Based on the above, for the year 2009, the Veteran's countable income of $24,831 exceeded the applicable MAPR of $23,396 in effect for 2009. See 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. For the year 2010, the evidence shows that the Veteran was in receipt of SSA benefits of $29,652. The evidence reflects that he also was in receipt of rental income of $7,200 for a total of $36,852. However, the Veteran's tax return shows that he had unreimbursed medical expenses totalling $11,580. Based on the above, for the year 2010, the Veteran's countable income of $25,272 exceeded the applicable MAPR of $23,396 in effect for 2010. See 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. For the year 2011, the evidence shows that the Veteran was in receipt of SSA benefits of $29,652. The evidence reflects that he also was in receipt of rental income of $6,000. The page from the 2011 tax return regarding unreimbursed medical expenses is missing. Based on the above, for the year 2011, the Veteran's countable income of $36,652 exceeded the applicable MAPR of $23,396 in effect for 2011. See 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. For the year 2012, the evidence shows that the Veteran was in receipt of SSA benefits of $30,718. The evidence reflects that he also was in receipt of rental income of $14,400. However, the Veteran's tax return shows that he had unreimbursed medical expenses totalling $4,465. Based on the above, for the year 2012, the Veteran's countable income of $40, 653 exceeded the applicable MAPR of $24,652 in effect for 2012. See 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. For the year 2013, the evidence shows that the Veteran was in receipt of SSA benefits of $24,067. The evidence reflects that he also was in receipt of rental income of $14,400. However, the Veteran's tax return shows that he had unreimbursed medical expenses totalling $4,071. Based on the above, for the year 2013, the Veteran's countable income of $34,396 exceeded the applicable MAPR of $25,022 in effect for 2013. See 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. Accordingly, the Board finds that the Veteran's income was excessive for improved pension purposes from 2009 to 2013, and entitlement to SMP based on aid and attendance is not warranted, for substitution purposes. ORDER Special monthly pension benefits based on the need for regular aid and attendance, for substitution purposes, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs