Citation Nr: 1746959 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 16-32 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2015 pension year. 2. Whether the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2014 pension year. 3. Entitlement to special monthly pension based on the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1951 to June 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied nonservice-connected pension benefits with special monthly pension. On a VA Form 9 received in July 2016, the Veteran indicated that he wanted a Board hearing by videoconference. However, on a subsequent VA Form 9 received later that month, he indicated that he did not want a Board hearing. Thus, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2016). A June 2016 rating decision denied special monthly pension based on the need for regular aid and attendance of another person. In the above VA Forms 9, the Veteran expressed disagreement with this denial. In August 2013 correspondence, the Veteran raised the issues of entitlement to nonservice-connected pension benefits for 2012 and 2013. The issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to special monthly pension based on the need for regular aid and attendance of another person is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's countable annual income in pension year 2015 was $20,898.62. 2. The Veteran's countable annual income in pension year 2014 was $21,901.13. 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 for pension year 2015. 38 U.S.C.A. §§ 1503, 1521 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2016). 2. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits for pension year 2014. 38 U.S.C.A. §§ 1503, 1521 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although VA has statutory and regulatory duties to notify and assist claimants who submit claims, those provisions are not applicable here where resolution of the claim is as a matter of law. Manning v. Principi, 16 Vet. App. 534 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521 (West 2014). Basic entitlement exists if, among other things, the veteran's income is not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3(a) (2016). The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b) (2016). 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. 38 U.S.C.A. § 1503(a) (West 2014); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a) (2016). Medical expenses in excess of five percent of the maximum annual pension rate (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(iii) (2016). Special monthly pension by reason of being housebound was established effective January 27, 2014; however, the Veteran does not receive such benefits due to his income exceeding the allowable limit for pension benefits. Effective December 1, 2014, the maximum annual pension rate for a veteran with one dependent was $16,851.00, and $19,710.00 at the housebound rate. Veterans Pension Rate Table. To be deducted, medical expenses must exceed 5 percent of the maximum annual pension rate, or $842.00. For 2015, the Veteran reported $11,638.80 in annual Social Security Administration (SSA) benefits, $4,785.06 in annual state retirement benefits, and $9,790.80 in annual SSA benefits for his spouse. Based on the above information, the Veteran's annual income was $26,214.66. Medical expenses for 2015 included Medicare premiums of $2,517.60, private insurance premiums of $3,040.32, pharmacy payments of $220.12, hospital payments of $50.00, eye doctor payments of $40.00, and doctor payments of $290.00, for a total of $6,158.04. Subtracting 5 percent of the maximum annual pension rate, or $842.00, results in $5,316.04 in deductible medical expenses. Subtracting that from the Veteran's income results in a total countable income of $20,898.62. That exceeds the maximum annual pension rate of $19,710.00 for a veteran with one dependent at the housebound rate. Thus, the Veteran was not eligible for pension in 2015. All of the medical expenses in the Medical Expense Report received in March 2016 could not be deducted. The hospital payment of $1,260.00 could not be deducted because as of a February 2016 statement only $50.00 had been paid with a balance of $1,210.00. The pharmacy payments for the Veteran of $141.14 included those made in 2014 and 2015 and were allocated accordingly. The pharmacy payments for his spouse of $615.44 included those made in 2014 and 2015 and were allocated accordingly. The eye doctor payment of $342.00 could not be deducted because a March 2016 statement shows that only $40.00 had been paid. If either the hospital or eye doctor balances were paid in 2016, the Veteran should include them in his application for the 2016 pension year. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2015 pension year, and entitlement to improved pension benefits for the 2015 pension year is denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective December 1, 2013, the maximum annual pension rate for a veteran with one dependent was $ 16,569.00, and $ 19,380.00 at the housebound rate. Veterans Pension Rate Table. To be deducted, medical expenses must exceed 5 percent of the maximum annual pension rate, or $828.00. For 2014, the record shows $11,446.80 in annual SSA benefits for the Veteran, $4,584.12 in annual state retirement benefits, and $9,634.80 in annual SSA benefits for his spouse. Based on the above information, the Veteran's annual income was $25,665.72. Medical expenses for 2014 included Medicare premiums of $2,517.60, private insurance premiums of $1,327.84, pharmacy payments of $536.46, hospital payments of $126.69, and doctor payments of $84.00, for a total of $4,592.59. Subtracting 5 percent of the maximum annual pension rate, or $828.00, results in $3,764.59 in deductible medical expenses. Subtracting that from the Veteran's income results in a total countable income of $21,901.13. That exceeds the maximum annual pension rate of $19,380.00 for a veteran with one dependent at the housebound rate. Thus, the Veteran was not eligible for pension in 2014. As above, not all of the medical expenses reflected in billing statements could be deducted because they remained outstanding as of the end of 2014. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2014 pension year, and entitlement to improved pension benefits for the 2014 pension year is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2015 pension year, the appeal is denied. As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2014 pension year, the appeal is denied. REMAND A June 2016 rating decision denied special monthly pension based on the need for regular aid and attendance of another person. The Veteran filed a timely notice of disagreement in July 2016. Thus, the Board is required to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to special monthly pension based on the need for regular aid and attendance of another person. Advise the Veteran that a timely substantive appeal is necessary to perfect an appeal to the Board. If an appeal is perfected, then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs