Citation Nr: 1752649	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  16-47 741	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

1.  Entitlement to service nonservice-connected (NSC) disability pension benefits.

2.  Entitlement to special monthly pension (SMP) benefits.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel

INTRODUCTION

The Veteran served on active duty from April 1945 to July 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

Testimony was received from the Veteran during an August 2017 Board hearing.  A transcript of that testimony is associated with the claims file.

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.  Even considering deductions for unreimbursed medical expenses, the Veteran's countable income has exceeded the maximum annual pension rates (MAPRs) for 2015 through 2017 based on his Social Security income.

2.  The Veteran is not blind nor does he have uncorrectable vision; he is not a patient in a nursing home, and does not have a single disability rated as 100 percent disabling.

3.  The Veteran does not have a factual need for aid and attendance.


CONCLUSIONS OF LAW

1.  The Veteran's annual countable income is currently excessive for purposes of receipt of nonservice-connected pension benefits with special monthly pension.  38 U.S.C. §§ 1503, 1513, 1521, 1522, 1541, 1542, 5103, 5103A (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.274, 3.275 (2017).

2.  The criteria for SMP for aid and attendance or housebound status have not been met.  38 U.S.C. § 1521 (West 2012); 38 C.F.R. §§ 3.3, 3.23, 3.351, 3.352 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

VA's duty to notify was satisfied by an August 2016 letter.  See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Laws and Regulations

The Veteran filed a claim for nonservice-connected pension in November 2015.  For an original claim for pension, the initial annualization period extends from the date of receipt of the claim through the end of the month that is 12 months from the month during which entitlement arose.  See M21-1, Part V, Subpart iii, 1.E.7.a.  Subsequent annualization periods are based on the calendar year.

An improved pension is payable to Veterans of a period of war because of non-service-connected disability or age.  Basic entitlement exists if the Veteran served in the active military, naval, or air service for 90 days or more during a period of war (or other criteria not applicable in this case); is 65 years of age or older; and meets certain net worth and annual income requirements.  38 U.S.C. §1513, 1521; 38 C.F.R. §3.3.

Basic entitlement to improved pension exists if, among other things, a 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 U.S.C. §1521; 38 C.F.R. §3.3 (a)(3).  The maximum annual pension rate (MAPR) is periodically increased from year to year.  38 C.F.R. § 3.23 (a). The MAPR is published in Appendix B of VA Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. 

The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran.  38 U.S.C. § 1521; 38 C.F.R. § 3.23 (b).  In addition, payment of a veteran's pension shall be denied or discontinued based upon consideration of the annual net worth or corpus of the estate of the veteran, the veteran's spouse, and the veteran's children.  38 U.S.C. §1522 (a); 38 C.F.R. §3.274.  In determining countable annual income for improved pension purposes, 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); see also 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a), 3.272.  Fractions of dollars are ignored when computing income. 38 C.F.R. §§ 3.271, 3.272.  Social Security Association (SSA) income is not specifically excluded under 38 C.F.R. § 3.272.  Such income is therefore included as countable income.

A.  Pension

The MAPR for a Veteran with no dependents was $12,868 for 2015.  See 38 C.F.R. § 3.23 (a)(5); M21-1, Part 1, Appendix B.

The MAPR for a Veteran with no dependents was $12,907 for 2016 and 2017.  See 38 C.F.R. § 3.23 (a)(5); M21-1, Part 1, Appendix B.

Medical expenses exceeding 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.  38 C.F.R. § 3.272 (g)(I)(iii). 

Five percent of the MAPR was $643 for 2015.   Five percent of the MAPR was $645 for 2016 and 2017.

Based on the foregoing, the Board finds that the Veteran's countable income has exceeded the applicable income limits for receipt of nonservice-connected special monthly pension, from the date of his claim on November 2015.

For the year 2015, the Veteran's income was $13.932 which was his income from Social Security.  

The Veteran submitted medical expenses for this period in the amount of $1205.00.  This amount was reduced by the 5 percent of the MAPR which was $643 for 2015 which resulted in an amount of $562.

As a result, the amount of $562 is deducted from $13, 932 for a total countable income of $13,370.

As noted above, the maximum allowable income for 2015, however, was $12,868.  The Veteran's income of $13,370 therefore clearly exceeds that amount.  Thus, he did not meet the eligibility requirements for nonservice-connected pension for 2015.

For 2016, the Veteran's income was $13.980 which was his income from Social Security.  

The Veteran submitted medical expenses for this period in the amount of $1449 which included a $107.99 for Epsom salts and $137 for mileage to a VA facility.

The Board notes that VA allows a mileage allowance in computation of the Veteran's unreimbursed medical expenses for pension purposes.  In that connection, 38 C.F.R. § 70.10 (a) (4) authorizes beneficiary travel payments for Veterans receiving pension benefits under 38 U.S.C. § 1521 who traveled to or from a VA facility or VA-authorized health care facility for examination, treatment, or care.  The reimbursement rate for travel mileage was $0.415 per mile, effective November 17, 2008.  See Increase in Mileage Reimbursement Rate and Deductible Amounts in the Beneficiary Travel Program, 73 Fed. Reg. 68489 (Nov. 18, 2008).  The Board points out, however, that the mileage allowance is for application only for travel to or from a VA or VA-authorized health care facility.  See 38 C.F.R. § 70.10.

In this case, the records submitted by the Veteran reflect that he visited the VA Medical Center (VAMC) on 38 occasions in 2016.  On his Medical Expense Report, he indicated that the round-trip mileage from his home to the VAMC was 8.8 miles.  Thus, the Veteran appears to have traveled a total of 334 miles to VA facilities for health care in 2016.  Accordingly, at the reimbursement rate for travel mileage of $0.415 per mile, the total reimbursement for that travel in 2016 is $137. 

The submitted medical expense amount of $1449 is reduced by the 5 percent of the MAPR which was $645 for 2016 which resulted in an amount of $804.

As a result, the amount of $804 is deducted from $13, 980 for a total countable income of $13,176.

As noted above, the maximum allowable income for 2016 was $12,907.  The Veteran's income of $13,176 therefore clearly exceeds that amount.  Thus, he did not meet the eligibility requirements for nonservice-connected pension for 2016.

For 2017, the Veteran's projected income is $13, 980 which is his income from Social Security.  

The Veteran submitted medical expenses for this period in the amount of $489.  This amount resulted from the Veteran's submitted expenses of Epsom salts, copays, medical equipment expenses and 27 visits to a VA facility which calculates to $97 for mileage to a VA facility.

As a result, the amount of $489 is deducted from $13, 980 for a total countable income of $13,491.

As noted above, the maximum allowable income for 2016 is $12,907.  The Veteran's income of $13,491therefore clearly exceeds that amount.  Thus, he does not meet the eligibility requirements for nonservice-connected pension for 2017.

As a result, the Board finds that the Veteran's countable income exceeds the maximum limit for this benefit.  Therefore, his claim must be denied. 38 U.S.C. §§ 1521, 5107; 38 C.F.R. §§ 3.271, 3.272, 3.351.

B.  SMP

As noted above, the Veteran's income exceeds the limit established by the MAPR for nonservice-connected pension.  However, a different and higher MAPR is provided for a Veteran needing regular aid and attendance and the Veteran's income is not a bar to this benefit.  See VA Manual M21- 1, Part I, Appendix B; 38 U.S.C. § 1521; 38 C.F.R. § 3.23 (providing a MAPR of $18,654 for a Veteran with no dependents requiring aid and attendance). Thus, the Veteran's failure to meet the income eligibility requirement for the pension benefits discussed above does not prohibit him from qualifying for SMP based on the need for aid and attendance if he meets the other criteria for the award. 

A different and higher MAPR is provided for a Veteran needing regular aid and attendance.  See VA Manual M21- 1, Part I, Appendix B; 38 U.S.C. § 1521; 38 C.F.R. § 3.23 (providing a MAPR of $21,531 for a Veteran with no dependents requiring aid and attendance). 

SMP is warranted if a veteran is in need of regular aid and attendance.  38 U.S.C.A. §1521 (d).  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.  38 C.F.R. §3.351 (b).  A veteran shall be considered to be in need of regular aid and attendance if: he is 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; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. §3.352 (a).  See also 38 C.F.R. §3.351 (c).

Factual Background and Analysis

In this case, the Veteran does not have a disability rated as permanent and total.  Accordingly, he does not qualify for the special monthly pension based on being housebound.  Therefore, the Board evaluates whether special monthly pension by reason of the need for aid and attendance is warranted.

A veteran will be considered in need of regular aid and attendance if he or she: (1) is 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; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a); 38 C.F.R. § 3.351 (c). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others.  In making such determinations, consideration is given to such conditions as: inability of the claimant to dress and undress himself/herself or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 

"Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed.  It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. 

The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole.  It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need.  38 C.F.R. § 3.352 (a). 

In addition, any determination that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed.  It must be based on the actual requirement of personal assistance from others.  See Turco v. Brown, 9 Vet. App. 222, 224 (1996). 

Based on a review of the record, the Board finds that special monthly pension is not warranted.  A preponderance of the evidence shows that the Veteran is not in need of regular aid and attendance.  

In August 2016, the Veteran underwent an examination for aid and attendance purposes.  The examiner noted that the Veteran was not currently bedridden.  He could perform all functions, did not need aid for ambulation and had no restrictions on leaving the home.

At his August 2017 hearing, the Veteran testified that his daughter lived with him and was his caretaker, but that he still drove himself.

Notably, the private and VA treatment records do not show the Veteran requires the assistance of another individual to perform activities of daily living.  There is no indication the Veteran is a patient in a nursing home, nor is he blind with visual acuity of 5/200 or less.

While it was noted at his August 2017 that his daughter is his caregiver, the evidence demonstrates that the Veteran lives at home, is not blind, is able to feed himself, has the ability to attend to the needs of nature, and is not confined to a bed. Additionally, the August 2016 VA examiner specifically noted that the Veteran was not currently bedridden, could perform all functions, did not need aid for ambulation and had no restrictions on leaving the home.

To the extent the Veteran's lay claims contradict the VA examiner's findings, they are outweighed in probative value by such findings because the VA examiner has greater training, knowledge, and experience in assessing disabilities than does the Veteran.  Accordingly, special monthly pension based on the need for regular aid and attendance is not warranted.

In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b).  


ORDER

Entitlement to service disability pension benefits is denied.

Entitlement to SMP benefits is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs