Citation Nr: 1802800	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  13-31 773	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether the Veteran's countable income exceeded the annual limit for receipt of nonservice-connected pension benefits from the period from November 2, 2010 to December 1, 2011.

2.  Entitlement to a waiver of recovery of overpayment of VA disability pension benefits during the period from November 2, 2010 to December 1, 2010, to include the preliminary issue of the validity of the debt.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel


INTRODUCTION

The Veteran served on active duty from May 1987 to May 1991.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2012 determination in which the RO discontinued nonservice-connected pension benefits, effective November 1, 2010.  In July 2013, the RO reinstated the Veteran's non-service connected pension benefits, effective December 1, 2011.  Thus, the issue has been characterized as set forth on the front page of these decision.  

The issue of entitlement to a waiver of recovery of overpayment of VA disability pension benefits during the period from November 2, 2010 to December 1, 2010, to include the preliminary issue of the validity of the debt is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

For the period from November 1, 2010 to December 1, 2011, the Veteran's countable income for pension exceeded the VA maximum annual pension rate for a Veteran with no dependents.


CONCLUSION OF LAW

The Veteran's countable income was excessive for receipt of VA nonservice-connected pension benefits from November 1, 2010 to December 1, 2011.  38 U.S.C. §§ 1521, 1522 (2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The present appeal includes the issue of whether the Veteran's countable income exceeded the VA maximum annual pension rate (MAPR) from November 1, 2010 to December 1, 2011.  By way of background, the Veteran received an inheritance upon the death of his mother in October 2010.  The inheritance included a house valued at $56,200.00, an automobile valued at $4,912.00 and an insurance benefits payment of $2,234.24.  In sum, the inheritance totaled $63,346.00.  In light of the inheritances, the RO determined that the Veteran's countable income exceeded the MAPR for the period in question.  
 
Payments of any kind from any source (for example, life insurance proceeds) shall be counted as income during the 12-month annualization period in which received, unless specifically excluded.  38 C.F.R. § 3.271. 

For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12.  38 C.F.R. § 3.273(a).  Nonrecurring income (income received on a one-time basis e.g. an inheritance) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income.  38 C.F.R. § 3.271(c). 

Basic entitlement to such pension exists if, among other things, the appellant's income is not in excess of MAPR specified in 38 C.F.R. § 3.23.  38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3).  The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations.  38 C.F.R. § 3.21. 

Further, certain unreimbursed medical expenses (in excess of five percent of the MAPR) may be excluded from countable income for the same 12-month annualization period to the extent they were paid.  38 C.F.R. § 3.272.  

In the instant case, during the period in question, the Veteran had no dependents.  Effective December 1, 2009, the MAPR for a permanently and totally disabled Veteran with no dependents was $11, 830.00.  See M21-1, part I, Appendix B.  Five percent of the MAPR to determine the medical expenses to be deducted was $591.00.

During the period in question, the Veteran did not report any other income besides his inheritance.  He also did not submit any information concerning unreimbursed medical expenses.   

Accordingly, the Veteran's reported annual income for pension purposes was $63,346.00 for the 12 month period in question, which far exceeded the MAPR of $11,830.00.  Again, as the Veteran's inheritance is considered a nonrecurring income, it will be counted for pension purposes for a full 12-month annualization period following receipt of the income as in the instant case.  As such, the Veteran's pension benefits were reinstated, effective December 1, 2011.  

While the Board sympathizes with the Veteran's situation, it is bound by the clear and specific legal authority governing income limitations and the computation of income for the purpose of receiving VA pension benefits.  Here, the record shows that the RO appropriately determined the Veteran's monthly pension amount for the period in question according to the controlling regulations.  Thus, the Board has no alternative but to find that the Veteran was ineligible for VA pension due to excess income for the period from November 1, 2010 to December 1, 2011.  See 38 U.S.C.A. § 1521(a), (b) ; 38 C.F.R.  § 3.3(a)(3).  Accordingly, the Veteran's claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The appeal to establish that the Veteran's income was not excessive for the purpose of payment of VA nonservice-connected pension benefits for the period from November 1, 2010 to December 1, 2011 is denied.



REMAND

The Veteran is also seeking entitlement to a waiver of recovery of overpayment of VA disability pension benefits during the period from November 2, 2010 to December 1, 2011, to include the preliminary issue of the validity of the debt.
The Veteran has made it clear in his statements of record that he was not only seeking a waiver of the overpayment amount, but was also asserting that the overpayment was not properly calculated.  See Schaper , 1 Vet. App. at 434; see also 38 C.F.R. § 1.911(c); VAOPGCPREC 6-98.  

In November 2012, the Veteran was notified that an overpayment of debt of $24,036.00 was created.  In March 2013, the Veteran submitted a notice of disagreement pursuant to 38 C.F.R. § 20.201 disagreeing with the validity of the debt as well as requesting a waiver of overpayment.  However, the AOJ has not issued a statement of the case with respect to this issue.  The Court has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the AOJ to issue a statement of the case, and to provide the veteran an opportunity to perfect the appeal.  Manlincon v. West, 12 Vet. App. 238 (1999).

Moreover, the Board also observes that the record does not contain a recalculation of the debt in light of the Veteran's pension benefits being subsequently reinstated, effective December 1, 2011.  As such, the Board finds that a written paid and due audit of the Veteran's account for the period of the overpayment is necessary.

Accordingly, the case is REMANDED for the following action:

1. A written paid and due audit of the Veteran's account for the period of the overpayment should be performed. This audit should reflect, on a month-by-month basis, the amounts actually paid to the Veteran and the amounts properly due.  In addition, the audit should include the amount of the overpayment, if any, that may have been repaid by the Veteran.  A copy of the written audit should be inserted into the claims file and another provided to the Veteran and his representative.

2.  After completion of the above development, the AOJ should take appropriate action pursuant to 38 C.F.R. § 19.26 (2017), to include furnishing the Veteran and his representative with an appropriate statement of the case with respect to the issue of entitlement to a waiver of recovery of overpayment of VA disability pension benefits during the period from November 2, 2010 to December 1, 2010, to include the preliminary issue of the validity of the debt..  The Veteran and his representative should be advised of need to file a timely substantive appeal if the Veteran desires to complete an appeal as to this issue.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
L. M. Barnard
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs