Citation Nr: 1723948 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 09-15 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to nonservice-connected pension benefits for accrued benefits purposes. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to December 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2008 determination of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2013, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran had a claim for non-service connected disability pension benefits pending at the time of his death. 2. The Appellant filed her claim for accrued benefits within one year of the Veteran's death. 3. From the date of claim to the Veteran's death in February 2007, the Veteran's reported total income, less unreimbursed medical expenses, did not exceed the applicable maximum annual pension rate for a Veteran in need of aid and attendance with one dependent. CONCLUSION OF LAW The requirements for nonservice-connected pension benefits for accrued benefits purposes have been met. 38 U.S.C.A. §§ 1502, 1503, 1513, 1521, 5121 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.274, 3.275, 3.1000 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that she is entitled to benefits because the Veteran had an appeal pending at the time of his death for non-service connected disability pension benefits. Nonservice-connected improved pension is available to a Veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct, or who is 65 years of age or older. 38 U.S.C.A. §§ 1501, 1502, 1503, 1513, 1521, 1522 (West 2014); 38 C.F.R. §§ 3.3(a)(3), 3.23. The purpose of VA pension benefits is to provide a subsistence income for Veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. The Veteran's countable annual income must not exceed the specified maximum annual pension rate (MAPR), as increased periodically. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3. Special monthly pension, with an increased rate of payment and a higher income limit or MAPR, is warranted if the Veteran is in need of regular aid and attendance and meets the other requirements. 38 U.S.C.A. § 1521(d); 38 C.F.R. § 3.351(a)(1). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. See 38 C.F.R. §§ 3.351(b), 3.352(a). A review of the record shows that in August 2004, the Veteran was granted entitlement to nonservice-connected pension benefits, effective July 29, 2004, and entitlement to special monthly pension based on the need for aid and attendance, effective July 29, 2004. In September 2005, the RO informed the Veteran that, within 60 days, he needed to submit an Eligibility Verification Report (EVR) and verification of his medical expenses for the time period of August 2004 to December 2006 or his nonservice-connected pension benefits would be terminated. In January 2006, the RO terminated the Veteran's nonservice-connected pension benefits on the basis that he did not submit the EVRs and medical expense forms. Subsequently, in August 2006, the Veteran submitted EVRs and other information concerning his income and medical expenses in support of his claim to reinstate the nonservice-connected pension benefits. The Veteran died in February 2007. For a claimant to prevail on her accrued benefits claim, the record must show the following: (1) the Veteran had a claim pending at the time of his death (see 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998); (2) the Veteran would have prevailed on his claim if he had not died (Id.); (3) the claim for accrued benefits was filed within one year of the Veteran's death (see 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c)); and (4) the appellant has standing to file a claim for accrued benefits (see 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000). Based on a review of the record to include the evidence noted above, the Board finds that there was a claim for non-service-connected pension benefits pending at the time of the Veteran's death. Remaining is the dispositive question as to whether the Veteran's countable income was too high to enable the award of pension benefits beginning August 2006 until the time of his passing in February 2007. The Board notes as an initial matter that, in making its determination, it may consider only evidence contained in the claims file at the time of the Veteran's death. See 38 C.F.R. § 3.1000(a). Accordingly, after the Veteran's death, VA cannot develop additional evidence that might better substantiate the claim of entitlement to accrued benefits. To be eligible for nonservice-connected pension, the Veteran's countable annual income must not exceed the specified MAPR, as increased periodically and reported in the Federal Register. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3. In calculating the Veteran's annual income, countable income consists of payments of any kind from any source received during a 12-month annualization period (e.g., a year), unless specifically excluded. Countable income expressly includes gross salary or wages of a veteran. Social Security Administration (SSA) and VA benefits also constitute countable income, as they are not specifically excluded. See 38 C.F.R. §§ 3.271, 3.272. In determining annual income for pension purposes, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) are generally counted as income during the 12-month annualization period in which received. Fractions of dollars will be disregarded in computing income; and only those amounts that are listed in 38 C.F.R. § 3.272 may be excluded from countable income for determining entitlement to improved pension. 38 U.S.C.A. § 1503; 38 C.F.R. §§ 3.271, 3.272. Unreimbursed medical expenses (UMEs) paid by a claimant may be used to reduce the claimant's countable income-provided certain conditions are met. Relevant to this case, UMEs paid within the 12-month annualization period are excluded from income if: (1) they were or will be paid by a veteran or spouse for medical expenses of the veteran, spouse, children, parents and other relatives for whom there is a moral or legal obligation of support; (2) they were or will be incurred on behalf of a person who is a member or a constructive member of the Veteran's or spouse's household; and (3) they were or will be in excess of 5 percent of the applicable MAPR(s) for the Veteran (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) as in effect during the 12-month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.272(g). An August 2006 rating decision reflects that the Veteran was found not competent for VA purposes. In August 2006, the Veteran submitted an assisted living statement which reflected an assisted living facility total monthly expense of $2250.00. A September 2006 correspondence notes that the Veteran had been admitted to an assisted living facility in March 2006 and that a court appointed custodian would be handling the Veteran's correspondences, including the payment for the assisted living facility. In November 2006, the Veteran submitted SSA information which noted that beginning December 2005, the Veteran's full monthly SSA benefits would be $983.10. His medical insurance premiums would be $88.50 each month. As to the 2006 pension year, the applicable MAPR for a Veteran with one dependent at the aid and attendance rate was $20,924.00. See 38 C.F.R. § 3.23(a)(2); M21-1, Part 1, Appendix B. Noting that the period on appeal starts in August 2006 and the applicable MAPR is valid until December 2006, the MAPR for 4 months is $6,974.67. (($20,924.00 / 12 months ) x 4 months). The Veteran reported one income source: SSA benefits of $983.10 per month. Annualizing the Veteran's income provides a total income of $11,797.20. ($983.10 monthly SSA benefits x 12 months). The Veteran's income for the 4 months during the 2006 pension year on appeal is $3,932.40. ($983.10 x 4 months). In regard to the Veteran's UMEs, the Veteran listed the following medical expenses: (1) total monthly assisted living expenses of $2,250.00 per month and (2) $88.50 for medical insurance premiums each month as noted in the SSA benefits letter. Using these figures produces a total of medical expense of $28,062.00 for the year. (($2,250.00 assisted living expenses x 12 months) + ($88.50 for medical expenses x 12 months)). Noting that the period on appeal starts in August 2006 and the applicable MAPR is valid until December 2006, this reflects that the Veteran's medical expenses for 4 months totaled $9,354.00. (($2,250.00 assisted living expenses x 4 months) + ($88.50 for medical expenses x 4 months)). The five percent deduction of the MAPR for medical expenses is $692.00 for the 2006 pension year. The total of this deduction for 4 months is $230.67. (($692.00/12 months) x 4 months)). Thus, when deducting the medical expenses of the MAPR, the total medical expenses for this 4 month period is $9,123.33. ($9,354.00 less $230.67). Subtracting the $9,123.33 in allowable UMEs from the Veteran's previously calculated annual income of $3,932.40 produces a negative result of $5,190.93 for a 4 month period. Removing the 30 cents from this new total-as 38 C.F.R. § 3.271 (h) mandates that the Board disregards fractions of dollars in computing income-provides a total of negative $5,190.00 in annual countable income for the Veteran for adjudication purposes for the applicable 2006 pension year. This is less than the MAPR of $6,974.60 for this time period. As the Veteran's negative annual countable income for August 2006 through November 2006 was less than the applicable MAPR for 4 months in the 2006, the Board finds that the Appellant's claim for accrued benefits based on a pending claim for nonservice-connected pension benefits, to include aid and attendance, is warranted for this period. See 38 C.F.R. §§ 3.3(a)(3), 3.23. As noted above, after the Veteran's death, VA cannot develop additional evidence that might better substantiate the claim of entitlement to accrued benefits. As to the 2007 pension year, income and medical expenses information are not of record. As such, the Board can only use the information provided by the Veteran regarding the 2006 pension year as an estimate to calculate the annual countable income and medical expenses for the next 3 months (December 2006, January 2007 and February 2007). The applicable MAPR for a Veteran with one dependent at the aid and attendance rate effective December 1, 2006 was $21,615.00. See 38 C.F.R. § 3.23(a)(2); M21-1, Part 1, Appendix B. Noting that the period on appeal starts in December 2006 until February 2007, the MAPR for 3 months is $5,403.75. (($21, 615.00/ 12 months) x 3 months). Again, the Veteran reported one income source: SSA benefits of $983.10 per month. Annualizing the Veteran's income from the figures listed above provides a total income of $11,797.20. ($983.10 monthly SSA benefits x 12 months). The Veteran's income for the 3 months was $2,949.30. ($983.10 x 3 months). In regard to the Veteran's UMEs, a May 2007 correspondence reflects that the Veteran lived in the assisting living home until February 1, 2007. The Veteran died on February [REDACTED], 2007. As such, a calculation of 2 months will be used regarding this medical expense. Again, the Veteran listed the following medical expenses: (1) total monthly assisted living expenses of $2,250.00 per month and (2) $88.50 for medical insurance premiums each month as noted in the SSA benefits letter. Using these figures produces a total of medical expense of $28,062.00 for the year. (($2,250.00 assisted living expenses x 12 months) + ($88.50 for medical expenses x 12 months)). Noting that the period on appeal starts in December 2006 until the Veteran's death on February [REDACTED], 2007, the total of the Veteran's medical expenses for this period is $4,765.50. (($2,250.00 assisted living expenses x 2 months) + ($88.50 for medical expenses x 3 months)). The five percent deduction of the MAPR for medical expenses is $715.00. The total of this deduction for 3 months is $178.75. (($715.00/12 months) x 3 months)). Thus, when deducting the medical expenses of the MAPR, the total medical expenses for this 3 month period is $4,586.75. ($4,765.50 less $178.75). Subtracting the $4,586.75 in allowable UMEs from the Veteran's previously-calculated annual income of $2,949.30 produces a negative result of $1,637.45 for a 3 month period. Removing the 45 cents from this new total-as 38 C.F.R. § 3.271(h) mandates that the Board disregards fractions of dollars in computing income-provides a new grand total of negative $1,637.00 in annual countable income for the Veteran for adjudication purposes for the applicable year 2007. The Board acknowledges the possibility that these figures might have changed during this period, but the difference between the predicted expenses and income is so gaping that the Board finds that this potential difference bears no reasonable possibility of changing the result. As the Veteran's estimated negative annual countable income for December 2006 through February 2007 was less than the applicable MAPR for 3 months in the 2007 pension year, the Board finds that the Appellant's claim for accrued benefits based on a pending claim for nonservice-connected pension benefits, to include aid and attendance, is warranted for this period. See 38 C.F.R. §§ 3.3(a)(3), 3.23. As the Veteran's annual countable income was less than the applicable MAPR for the period beginning in August 2006 until his death in February 2007, the Board finds that the Appellant's claim for accrued benefits based on a pending claim for nonservice-connected pension benefits is warranted. See 38 C.F.R. §§ 3.3(a)(3), 3.23. The claim is thus granted in full. ORDER Entitlement to nonservice-connected pension benefits for accrued benefits purposes is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs