Citation Nr: 1753838 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 15-14 684A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to nonservice-connected VA pension benefits, to include special monthly pension (SMP) based on the need for aid and attendance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to February 1956, and November 1959 to November 1963 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center (PMC) in Milwaukee, Wisconsin. In November 2016, the Veteran withdrew his request for a Board hearing. There is no hearing request presently pending. In March 2017, the Board remanded the claim for further development. The electronic filing system contains pertinent documents that were associated with the record since the RO's last readjudication of the claim. In the absence of a specific, written request for initial agency of original jurisdiction (AOJ) review of any additional evidence, there is an automatic waiver of AOJ review. See 38 U.S.C. § 7105(e)(1), (2) (West 2012) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. Prior to 2016, the countable annual income for VA pension purposes was in excess of the established income limits for receipt of payment for nonservice-connected disability pension benefits and SMP based on the need for regular aid and attendance. 2. In 2016, the countable annual income for VA pension purposes was not in excess of the established income limits for receipt of payment for SMP based on the need for regular aid and attendance. 3. In 2016, the Veteran was not a patient in a nursing home, was not blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, and did not have concentric contraction of the visual field to 5 degrees or less. Additionally, he was not permanently bedridden or so helpless that he was unable to perform self-care tasks or protect himself from the hazards incident to his daily environment without care or assistance of another person on a regular basis. CONCLUSION OF LAW The criteria for receiving nonservice-connected pension benefits or SMP based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1521, 5107 (West 2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In reaching the decision below, the Board considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 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. §§ 1501, 1502, 1503, 1513, 1521, 1522 (West 2012); 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. § 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. § 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). Some of the basic eligibility requirements are not in dispute. There is no dispute that the Veteran had 90 days of service during the Korean conflict. Additionally, he is over the age of 65. The dispositive question with respect to both his eligibility for nonservice-connected pension benefits and SMP based on the need for aid and attendance, is whether the countable income is too high to enable the award of pension benefits. 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. § 1503 ; 38 C.F.R. §§ 3.271, 3.272. 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. Relevant to this case, unreimbursed medical expenses paid within the 12 month annualization period are excluded from income, if: (i) 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; (ii) 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 (iii) 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). See also M21-1, Part V, Subpart iii, Chapter 1, Section G.2.b. The Veteran filed his claim in 2011. The Board will thus address his eligibility for nonservice-connected pension benefits and SMP based on the need for aid and attendance for each full year since 2011 in chronological order. Although the MAPR rates are changed effective December 1 of each year, total income for calendar years governs payment of benefits. 38 C.F.R. § 3.260 (f). The Veteran's VA Forms 21-0516-1, Improved Pension Eligibility Verification Report, indicate he is married with one dependent, his spouse. 2011 As of December 1, 2010, (for 2011), the MAPR for veterans with a spouse and no other dependents was $15,493 ($23,396 for the corresponding aid and attendance rate). See 38 U.S.C. § 1521 (c)-(d); 38 C.F.R. § 3.23; see also Veterans Pension Rate Table, http://www.benefits.va.gov/pension/current_rates_veteran_pen.asp, accessed November 15, 2017. These rates were unchanged from the previous year. To be deducted, medical expenses must have exceeded 5 percent of the MAPR, or $774. As for the Veteran's income in 2011, his VA Form 21-0516-1, Improved Pension Eligibility Verification Report, indicates that he received $972 monthly in benefits from the Social Security Administration (SSA), $453 monthly in U.S. Civil Service benefits, and his spouse received $1188 monthly from SSA. This is consistent with information received from the SSA (found in both Virtual VA and VBMS), as well as the information provided on his VA Form 21-527, Income-Net Worth and Employment Statement. This totals $31,356 for 2011. As for the Veteran's expenses in 2011, his VA Form 21-527 indicates he paid $1158 in Medicare expenses for himself, $1158 in Medicare expenses for his spouse, $264 in Medicare supplemental insurance expenses for himself, and $480 in counseling expenses for his spouse. In a VA Form 21P-8416, he indicated that he also paid $657 in prescriptions for his spouse in 2011. This totals $3717. He also provided another VA Form 21P-8416, Medical Expense Report, listing 6 medical and dental expenses, for 2011, totaling $7801. Adding his $657 in prescriptions for his spouse totals $8458. As the latter form indicated a higher amount of medical expenses, the Board will resolve doubt and use the higher figure. Deducting the 5 percent, or $774, from $8458 results in $7684 as excludable from his income. Accordingly, the Veteran's countable income for pension for 2011, adjusted to reflect the maximum annual medical expenses demonstrated in the record, was $23,672 ($31,356 minus $7684). This exceeds the MAPR for veterans with a spouse and no other dependents, as well as the corresponding aid and attendance rate. 2012 As of December 1, 2011, (for 2012), the MAPR for veterans with a spouse and no other dependents was $16,051 ($24,239 for the corresponding aid and attendance rate). See 38 U.S.C.A. § 1521 (c)-(d); 38 C.F.R. § 3.23; see also Veterans Pension Rate Table, http://www.benefits.va.gov/pension/current_rates_veteran_pen.asp, accessed November 15, 2017. To be deducted, medical expenses must have exceeded 5 percent of the MAPR, or $802. As for the Veteran's income in 2012, his VA Form 21-0516-1 indicates that he received $972 monthly in benefits from the SSA, $453 monthly in U.S. Civil Service benefits, and his spouse received $1188 monthly from the SSA. Information received from the SSA reflects slightly higher monthly figures ($1006.90 for the Veteran and $1229.90 for his spouse) but the Board will resolve all doubt in favor of the Veteran and use the lower figures. This totals $31,356 for 2012. As for the Veteran's expenses in 2012, his VA Form 21P-8416, Medical Expense Report, indicates a list of 10 medical and dental expenses, totaling $6443. In a separate VA Form 21P-8416, he indicated that he also paid $498 in prescriptions for his spouse for this year. This totals $6941. In a previously filed VA Form 21-8416 found in Virtual VA only, the Veteran provided a longer list of medical and dental expenses for 2012, totaling $7011. This form included prescription costs. However, resolving any doubt in his favor, the Board will also add the $498 in prescriptions identified in the separate VA Form 21P-8416. This totals $7509. The Board will resolve doubt in favor of the Veteran and use the higher figure for his 2012 medical expenses. Deducting the 5 percent, or $802, from $7509 results in $6707 as excludable from his income. Accordingly, the Veteran's countable income for pension for 2012, adjusted to reflect the maximum annual medical expenses demonstrated in the record, was $24,649 ($31,356 minus $6707). This exceeds the MAPR for veterans with a spouse and no other dependents, as well as the corresponding aid and attendance rate. 2013 As of December 1, 2012, (for 2013), the MAPR for veterans with a spouse and no other dependents was $16,324 ($24,652 for the corresponding aid and attendance rate). See 38 U.S.C.A. § 1521 (c)-(d); 38 C.F.R. § 3.23; see also Veterans Pension Rate Table, http://www.benefits.va.gov/pension/current_rates_veteran_pen.asp, accessed November 15, 2017. To be deducted, medical expenses must have exceeded 5 percent of the MAPR, or $816. As for the Veteran's income in 2013, his VA Form 21-0516-1 indicates that he received $1024 monthly in benefits from the SSA, $465 monthly in U.S. Civil Service benefits, and his spouse received $1251 monthly from SSA. This is consistent with information from the SSA. This totals $32,880 for 2013. As for the Veteran's expenses in 2013, his VA Form 21P-8416, Medical Expense Report, indicates a list of 8 medical and dental expenses, totaling $8038. In a separate VA Form 21P-8416, he indicated that he also paid $603 in prescriptions for his spouse for this year. This totals $8641. Deducting the 5 percent, or $816, from $8641 results in $7825 as excludable from his income. Accordingly, the Veteran's countable income for pension for 2013, adjusted to reflect the maximum annual medical expenses demonstrated in the record, was $25,055 ($32,880 minus $7825). This exceeds the MAPR for veterans with a spouse and no other dependents, as well as the corresponding aid and attendance rate. 2014 As of December 1, 2013, (for 2014), the MAPR for veterans with a spouse and no other dependents was $16,569 ($25,022 for the corresponding aid and attendance rate). See 38 U.S.C. § 1521 (c)-(d); 38 C.F.R. § 3.23; see also Veterans Pension Rate Table, http://www.benefits.va.gov/pension/current_rates_veteran_pen.asp, accessed November 15, 2017. To be deducted, medical expenses must have exceeded 5 percent of the MAPR, or $828. As for the Veteran's income in 2014, he submitted two VA Forms 21-0516-1 covering this year. The Board will resolve doubt and use the form containing the lower figures. This form indicates that he received $1024 monthly in benefits from the SSA, $465 monthly in U.S. Civil Service benefits, and his spouse received $1251 monthly from SSA. Information received from the SSA reflects slightly higher monthly figures ($1038.90 for the Veteran and $1269.90 for his spouse) but the Board will resolve all doubt in favor of the Veteran and use the lower figures. This totals $32,880 for 2014. As for the Veteran's expenses in 2014, his VA Form 21P-8416, Medical Expense Report, indicates a list of 5 medical and dental expenses, totaling $6931. In a separate VA Form 21P-8416, he indicated that he also paid $307 in prescriptions for his spouse for this year. This totals $7238. Deducting the 5 percent, or $828, from $7238 results in $6410 as excludable from his income. Accordingly, the Veteran's countable income for pension for 2014, adjusted to reflect the maximum annual medical expenses demonstrated in the record, was $26,470 ($32,880 minus $6410). This exceeds the MAPR for veterans with a spouse and no other dependents, as well as the corresponding aid and attendance rate. 2015 As of December 1, 2014, (for 2015), the MAPR for veterans with a spouse and no other dependents was $16,851 ($25,448 for the corresponding aid and attendance rate). See 38 U.S.C. § 1521 (c)-(d); 38 C.F.R. § 3.23; see also Veterans Pension Rate Table, http://www.benefits.va.gov/pension/current_rates_veteran_pen.asp, accessed November 15, 2017. To be deducted, medical expenses must have exceeded 5 percent of the MAPR, or $842. As for the Veteran's income in 2015, his VA Form 21-0516-1 indicates that he received $1039 monthly in benefits from the SSA, $468 monthly in U.S. Civil Service benefits, and his spouse received $1270 monthly from SSA. Information received from the SSA reflects slightly higher monthly figures ($1056.90 for the Veteran and $1290.90 for his spouse) but the Board will resolve all doubt in favor of the Veteran and use the lower figures. This totals $33,324 for 2015. As for the Veteran's expenses in 2015, his VA Form 21P-8416, Medical Expense Report, indicates a list of 5 medical and dental expenses, totaling $4251. In a separate VA Form 21P-8416, he indicated that he also paid $803 in prescriptions for his spouse for this year. This totals $5054. Deducting the 5 percent, or $842, from $5054 results in $4212 as excludable from his income. Accordingly, the Veteran's countable income for pension for 2015, adjusted to reflect the maximum annual medical expenses demonstrated in the record, was $29,112 ($33,324 minus $4212). This exceeds the MAPR for veterans with a spouse and no other dependents, as well as the corresponding aid and attendance rate. 2016 As of December 1, 2015, (for 2016), the MAPR for veterans with a spouse and no other dependents was $16,851 ($25,448 for the corresponding aid and attendance rate). See 38 U.S.C. § 1521 (c)-(d); 38 C.F.R. § 3.23; see also Veterans Pension Rate Table, http://www.benefits.va.gov/pension/current_rates_veteran_pen.asp, accessed November 15, 2017. These rates were unchanged from the previous year. To be deducted, medical expenses must have exceeded 5 percent of the MAPR, or $842. As for the Veteran's income in 2016, his VA Form 21-0516-1 indicates that he received $1057 monthly in benefits from the SSA, $486 monthly in U.S. Civil Service benefits, and his spouse received $1292 monthly from SSA. This totals $34,020 for 2016. As for the Veteran's expenses in 2016, his VA Form 21P-8416, Medical Expense Report, indicates a list of 6 medical and dental expenses, totaling $7597. In a separate VA Form 21P-8416, he indicated that he also paid $1840 in prescriptions for his spouse for this year. This totals $9437. Deducting the 5 percent, or $842, from $9437 results in $8595 as excludable from his income. Accordingly, the Veteran's countable income for pension for 2016, adjusted to reflect the maximum annual medical expenses demonstrated in the record, was $25,425 ($34,020 minus $8595). This exceeds the MAPR for veterans with a spouse and no other dependents. However, it does not exceed the corresponding aid and attendance rate ($25,448). The Veteran's identified medical expenses are all valid as they are included in the "List of Common Allowable Medical Expenses," M21-1, Part V, Subpart iii, Chapter 1, Section G.2.c. As such, the Board will turn to a discussion of his eligibility for SMP based on the need for aid and attendance in 2016. The rate for aid and attendance with one dependent is the only rate that applies and for which his income is not excessive. Under 38 C.F.R. § 3.351 (b), the need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria for determining whether such need exists are set forth under 38 C.F.R. § 3.351 (c). The criteria for establishing the need for aid and attendance include consideration of whether a veteran is blind or is 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. In determining whether there is a factual need for regular aid and attendance, the following will be accorded consideration: the inability of a veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal function which a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be constant need. See 38 C.F.R. § 3.352 (a); see also VAOPGCPREC 21-94. In discussing the requirements of 38 C.F.R. § 3.352 (a), the United States Court of Appeals for Veterans Claims (Court) noted the following: (1) it is mandatory for VA to consider the enumerated factors within the regulation; (2) eligibility requires that at least one of the enumerated factors be present; and (3) the "particular personal function" refers to the enumerated factors. See Turco v. Brown, 9 Vet. App. 222 (1996). "Bedridden" will be a proper basis for finding the need for the regular aid and attendance of another person and is to be determined based on the actual requirement to be confined to a bed. 38 C.F.R. § 3.352 (a). As for visual impairment, there is no indication that the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or that he has concentric contraction of the visual field to 5 degrees or less. To the contrary, on VA examination for Housebound Status or Permanent Need for Regular Aid and Attendance in May 2017, the examiner stated he is not legally blind. With regard to being in a nursing home, the May 2017 examiner indicated he does not require nursing home care. There is no evidence to the contrary As to a factual need for aid and attendance, the May 2017 examiner found that the Veteran could feed himself. He could not prepare his own meals. He did not require assistance in bathing or tending to hygiene. He did not require medication management. He could manage his own financial affairs. There were no restrictions of either upper extremity with particular reference to grip, fine movements, or the abilities for self-feeding, to button clothing, shave, or attend to the needs of nature. The lower extremities were limited to the extent there was pain in the left ankle and foot with ambulation. The Veteran also had a decreased range of motion of the lumbar and cervical spine. He did not require aids such as canes, braces, or crutches, or the assistance of another person, for locomotion. The examiner stated that fatigue and poor balance limited movement, but did not find that he was unable to leave his home in response to the applicable question. Based on this examination report and the lack of evidence to the contrary, the Board finds the weight of the evidence reflects that the Veteran is not permanently bedridden or so helpless that he is unable to perform self-care tasks or protect himself from the hazards incident to his daily environment without care or assistance of another person on a regular basis. Therefore, the preponderance of the evidence is against the claim for SMP based on the need for aid and attendance, and it is denied. The Veteran has provided medical documentation which appears to be in support of a claim for special monthly pension benefits for his wife. As noted above, the rate for aid and attendance for the Veteran with one dependent is the only rate that applies, and for which his income is not excessive. While the MAPR table contemplates situations were both spouses require aid and attendance and/or are housebound, this applies where both parties are veterans. As there is no indication that the Veteran's spouse is also a veteran, this does not apply. The Board will nonetheless address the Veteran's argument to the extent possible. Under 38 C.F.R. § 3.351 (a)(5), increased pension is payable to a surviving spouse by reason of need for aid and attendance or by reason of being housebound. A "surviving spouse" is defined, in pertinent part, as a person who was the spouse of a veteran at the time of his death. See 38 C.F.R. § 3.50 (b). As the Veteran is still living, his wife is not considered a surviving spouse. As such, special monthly pension cannot be paid for her regular aid and attendance. See 38 C.F.R. § 3.351. Under 38 C.F.R. § 3.351 (a)(2), special monthly compensation may be payable to a veteran by reason of the veteran's spouse being in need of aid and attendance. The authority for section 3.351(a)(2) is 38 U.S.C. § 1115 (1)(E), which provides, in pertinent part, that any veteran entitled to compensation at the rates provided in section 1114 (38 U.S.C. § 1114 ) and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents in certain specified amounts, including for a spouse who is a patient in a nursing home or who is blind, or so nearly blind or significantly disabled as to need or require the regular attendance of another person. In order to be entitled to compensation under section 1114, the Veteran must have a service-connected disability. See, generally, 38 U.S.C. § 1114. Here, the Veteran does not have any established service-connected disabilities and thus is not entitled to compensation under 38 U.S.C. § 1114 for a disability rated 30 percent or higher. The Board has considered the Veteran's representative's October 2017 arguments, but claims for service connection are not before the Board. Accordingly, special monthly compensation for the aid and attendance of the Veteran's spouse cannot be paid. See 38 U.S.C. § 1115; 38 C.F.R. § 3.351 (a)(2). ORDER Entitlement to nonservice-connected VA pension benefits, to include special monthly pension based on the need for aid and attendance, is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs