Citation Nr: 1729290	
Decision Date: 07/26/17    Archive Date: 08/04/17

DOCKET NO.  12-02 701A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to nonservice-connected disability pension benefits prior to March 1, 2012. 


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Bosely, Counsel



INTRODUCTION

The Veteran had active service from January 1974 to August 1976. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which found the Veteran to have basic eligibility for pension benefits at the aid and attendance amount, but income too excessive to qualify for payment.  

A March 2012 decision granted pension benefits at the aid and attendance level effective February 8, 2012, payable from March 1, 2012.  The Veteran has not disputed the amount of pension benefits awarded.  Accordingly, the sole issue before the Board is basic entitlement prior to that date.  


FINDINGS OF FACT

1.  For the annualization period from December 2009 through November 2010, the Veteran's income was $22,197.00, which is greater than the maximum annual pension rate (MAPR) for a single veteran without dependents requiring aid and attendance for that year in the amount of $19,736.00, and he reported no medical expenses.  

2.  For the annualization periods starting December 2010 and December 2011, the Veteran's income was less than the applicable MAPR.  


CONCLUSION OF LAW

The criteria for the award of basic nonservice-connected pension benefits are met beginning from December 2010, but no earlier.  38 U.S.C.A. §§ 1521, 1542, 5312 (West 2014); 38 C.F.R. §§ 3.2, 3.3, 3.21, 3.23, 3.271, 3.272, 3.274, 3.660 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

In this case, there is no material dispute that the Veteran meets the basic eligibility criteria for award of a pension to the extent of serving for 90 days or more during a period of war, the Vietnam era.  It is also not in dispute that he qualifies for the MAPR rate on the basis of a single veteran without dependents requiring aid and attendance.  What remains in dispute is whether his income was excessive for purposes of qualifying for pension prior to February 2012.    

A. Applicable Law

As a general matter, VA will pay a pension to any veteran of a period of war because of nonservice-connected disability or age.  38 U.S.C.A. § 1521.  Basic entitlement exists if a veteran meets one of several criteria, including service in the active military, naval or air service for 90 days or more during a period of war and meets the net worth requirements under §3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in §3.23; and is age 65 or older.  38 C.F.R. § 3.3(a)(3). 

In determining whether annual income is in excess of the applicable maximum annual pension rate, the amount of the countable annual income of the veteran is reduced.  See 38 C.F.R. § 3.23(b).  Certain expenses shall be excluded from countable income for the purpose of determining entitlement to improved pension.  In relevant part, there will be excluded from the amount of an individual's annual income any unreimbursed amounts which have been paid within the 12-month annualization period for medical expenses regardless of when the indebtedness was incurred.  38 C.F.R. § 3.272(a). 

Unreimbursed medical expenses will be excluded from a Veteran's income when all of the following requirements are met:  (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 maximum annual pension rate or rates 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)(1). 

B. MAPR

The Maximum Annual Pension Rates (MAPR) are specified in 38 U.S.C.A. §§ 1521 and 1542, as increased from time to time under 38 U.S.C.A. § 5312 .  The rates of veterans pension benefits are published in tabular form in the Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in Title 38 of the Code of Federal Regulations.  38 C.F.R. § 3.21.  See also VBA Manual M21-1, V.iii.1.E.2.

Effective December 1, 2009, the MAPR for a single veteran without dependents requiring aid and attendance was $19,736.00.  To be deducted, medical expenses must exceed $986.00.  This rate remained unchanged for the year beginning December 1, 2010. 

Effective December 1, 2011, the MAPR for a single veteran without dependents requiring aid and attendance was $20,447.00.  To be deducted, medical expenses must exceed $1022.00.

C. Analysis

In this case, the Veteran's income was greater than the MAPR amount for the year starting December 1, 2009, but not for the subsequent years. 

The annualization period here for purposes of income computation begins December 2009, consistent with the filing of his claim that month.  See VBA Manual M21-1, V.iii.1.E.7.a., Definition: Initial Year.  

On this basis, the Social Security Administration (SSA) sent the RO a certification in December 2015 specifying the amount of benefits he received from that agency during the years in question.  Beginning December 2009, he was paid $1,385.00 per month; in December 2009, he was paid $5,577.04 in back pay; beginning in January 2012, he was paid $1,435.00 per month; beginning in July 2012, he was paid a gross amount of $1,434.90 with $99.90 deducted for Medicare..  

Based on the SSA's certification, the following table represents the Veteran's income for the applicable years.  The MAPR for each year is included for reference purposes.  

Year
Gross Income
Medical Exp.
Net
MAPR
12/09-11/10
$22,197.00
$0.00
$22,197.00
$19,736.00
12/10-11/11
$16,620.00
$0.00
$16,620.00
$19,736.00
12/11-11/12
$16,620.00
$499.50
$16,665.50
$20,447.00

(A February 2016 RO inquiry reflects slight higher amounts for some years.  For purposes of this appeal, the Board finds that the December 2015 response from SSA reflects the most accurate amounts as it was certified as accurate.  Even assuming the higher amounts, the outcome of this appeal would not change.)

As seen from this table, the Veteran's income for the year starting December 1, 2009 exceeded the MAPR.  While his monthly SSA income might have otherwise been below the MAPR, he received a lump sum retroactive award from SSA in December 2009.  This one-time nonrecurring income is counted for the full 12-month annualization period following receipt of the income, which began December 1, 2009.  See 38 C.F.R. § 3.271(a)(3); M21-1.V.iii.1.E.6.a ("Count nonrecurring income for 12 months from the first day of the month after the month during which the income is received.").

As further seen from this table, the Veteran's income for each successive year was below the MAPR, regardless of whether he had qualifying medical expenses.  Thus, disability pension benefits are payable for each year beginning December 1, 2010.  

In the March 2012 decision granting pension benefits from March 1, 2012, the RO informed the Veteran that it could not pay him pension benefits prior to that date because "your previous claim dated December 2, 2009, was denied because your income was over the limit [and i]t is now past the time limit to go back to that date for entitlement to pension."  

According to 38 C.F.R. § 3.660(b)(1), where payments were not made, pension may be awarded or increased in accordance with the facts found but not earlier than the beginning of the appropriate 12-month annualization period if satisfactory evidence is received within the same or the next calendar year.  Where a claimant's actual income did not permit payment, or payment was made at a lower rate, for a given 12-month annualization period, pension may be awarded or increased, effective the beginning of the next 12-month annualization period, if satisfactory evidence is received within that period.  38 C.F.R. § 3.660(b)(2); see also VBA Manual M21-1, V.iii.1.A.3.b., Time Limits to Submit Amended Income Information.

As explained in the VBA Manual M21-1, a claim is not finally adjudicated, under 38 CFR 3.160(d), until one year has elapsed from the date of the earlier of the following two dates: notice of denial, or denial on appellate review.  38 CFR 3.660(b) provides the time limits for a claimant to submit amended income information after his/her claim is denied due to excessive income or net worth.  It determines the date from which entitlement can be established when new evidence is submitted.  Important:  38 CFR 3.160(d) does not extend the time limits in 38  CFR 3.660(b) for submitting satisfactory evidence of entitlement because of income.  (Emphasis in original.)  If income information is not received within the established time limits, then the income information must be considered a new claim.  The earliest possible effective date is the date of receipt of the new claim under 38 CFR 3.400(r).  See M21-1, V.iii.1.A.3.b., Time Limits to Submit Amended Income Information.  

Here, the Veteran did not submit specific information regarding his income within the 12-month period prior to March 1, 2012.  However, he had already filed that information in connection with his appeal.  Moreover, he filed a notice of disagreement (NOD) in July 2010, thereby initiating the instant appeal of this matter.  See 38 C.F.R. §§ 3.103(f), 20.200.  In connection with his NOD, he disputed the amount of SSA benefits paid.  Thus, the RO should have taken steps to verify his ongoing SSA income.  Moreover, it was known to the RO that his income was initially excessive due to his award of a one-time retroactive lump sum award from SSA.  Thus, the RO should have known from the information already provided that his income from the ongoing SSA disability payments, after deducting the retroactive award from subsequent annualization periods, was not excessive.  The RO did not take this step.  Nor did it, between July 2010 and February 2012, inquire with the Veteran or SSA to obtain updated information to determine the amount of his ongoing SSA benefits, as is consistent with VA's duty to assist.  See 38 C.F.R. § 3.159; see also M21-1 V.i.3.C.1.d., Social Security Benefits (If information about Social Security (SS) benefits is needed, it may be obtained directly from the SSA by using the Share application.); V.i.3.A.2.d., Determining and Recording the Receipt of Income.

Under such circumstances, the Board finds that the Veteran had timely filed the needed information when he filed his original claim.  Accordingly, there is no basis to apply 38 C.F.R. § 3.660(b) and limit his award to March 1, 2012.  

In summary, the Veteran meets the basic eligibility criteria for a pension beginning from December 2010.  (There will still be an offset of the full pension amount in light of his SSA income, but that amount will be computed by the RO upon implementing the award).  Accordingly, the appeal is granted to this extent.



ORDER

From December 2010, but no earlier, nonservice-connected pension benefits are granted, subject to the income offset from MAPR. 




____________________________________________
RYAN T. KESSEL 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs