Citation Nr: 1805391 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-44 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Whether the Veteran's income is excessive for purposes of receipt of VA non-service connected pension. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in St. Paul, Minnesota. In December 2012, September 2014 and December 2014, the case was remanded in order to afford the Veteran a Board videoconference hearing. In March 2015, the hearing was held before a Veterans Law Judge (VLJ) who is no longer employed by the Board; a transcript of the hearing is of record. In June 2015, the case was remanded for further development. More recently, the Veteran was notified that because the VLJ who conducted the hearing is no longer employed by the Board, he had the right to have a new hearing. However, in October 2017 correspondence, the Veteran indicated that he did not wish to appear at another Board hearing and instructed the Board to consider his case based on the evidence of record. FINDING OF FACT The Veteran's annual countable income for pension purposes exceeds the applicable maximum annual pension rate (MAPR). CONCLUSION OF LAW The criteria for receipt of VA non-service connected pension benefits are not met. 38 U.S.C. §§ 101, 1501, 1503, 1521 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the instant appeal because turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error. The Board also notes that the Veteran actually received appropriate VCAA notice in January 2010. Also, the RO substantially complied with the June 2015 Board remand. In this regard, in an October 2015 letter, the RO requested that the Veteran provide financial status information documenting his current assets, income, and expenses. The RO also requested a detailed employment history for the time frames during the appeal period both prior to and since the Veteran turned 65. Additionally, the RO asked the Veteran to identify all VA and non-VA medical care providers who have treated him for his claimed nonservice-connected psychiatric disorder and left shoulder arthritis during the course of this appeal. The Veteran subsequently provided responses to all of these inquiries. No additional assistance to the Veteran is required. II. Analysis The Veteran asserts that he should be awarded non-service connection pension benefits due to being disabled or being 65 or over and having limited household income. A Veteran who meets the wartime service requirements, as the Veteran in this case does, will be paid the maximum rate of pension, reduced by the amount of his countable income. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.23, 3.273. Regarding the disability requirement, a veteran must be permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct. 38 U.S.C. 1521 (a). However, for veterans 65 years of age and older, the permanent and total disability requirement under section 1521(a) is excluded. See 38 U.S.C. § 1513 (a). In this case, the Veteran's service personnel records reveal that his date of birth was October 17, 1947. This means that the Veteran turned age 65 on October 17, 2012. Therefore, as of this date, the Veteran does not have to meet the permanent-and-total-disability requirement under 38 U.S.C.A. § 1521 (a) in order to receive non-service connected pension. See 38 U.S.C. § 1513 (a). However, he does still need to meet the income requirements. Regarding the income requirements, payments of any kind from any source, including Social Security Administration (SSA) benefits, shall be counted as income during the 12- month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. The types of exclusions from income for VA pension purposes include certain unreimbursed medical expenses in excess of five percent of the maximum annual pension rate (MAPR) that have been paid within the 12-month annualization period. 38 U.S.C. § 1503 (a); 38 C.F.R. § 3.272. 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) 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 the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521 (a), (b); 38 C.F.R. § 3.3 (a)(3). The MAPR is published on the VA benefits website and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21; See also http://www.benefits.va.gov/PENSION/current_rates_veteran_pen.asp. The MAPR increases according to how many dependents a Veteran has. A child of the Veteran not in the custody of the Veteran and to whose support the Veteran is not reasonably contributing may not be considered the Veteran's dependent. 38 C.F.R. § 3.23 (d)(1). The term "child," as defined for the purposes of establishing dependency status, means an unmarried person who is a legitimate child; a child legally adopted before the age of 18 years; a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household at the time of the veteran's death; or an illegitimate child. In addition, the child must be someone who: (1) is under the age of 18 years; (2) before reaching the age of 18 years became permanently incapable of self-support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101 (4); 38 C.F.R. § 3.57 (a)(1). In December 2009, the Veteran filed a claim for non-service connected pension. On the claim form, the Veteran reported that he received monthly Social Security Administration (SSA) income but did not report the amount received. In subsequent January 2010 correspondence, the Veteran reported that he received $1143 per month in SSA benefits. Additionally, he reported that he had a daughter who was born in June 1993. In subsequent February 2010 correspondence, the Veteran indicated that his daughter currently lived with her mother. He noted that he had previously been paying child support of $350 per month but as of February 17, 2010, SSA had begun to pay her "$747.00 as a dependent." In an April 2010 rating decision, the RO denied entitlement to non-service connected pension, finding that the Veteran did not meet the disability requirements for the benefit. A September 2010 RO inquiry to SSA shows that SSA reported that the Veteran began receiving $1143 per month in benefits in November 2009. At the March 2015 Board hearing, the Veteran testified that his disabilities did preclude him from securing or following a substantial gainful occupation. He also indicated that while he had initially retired from his position as a security guard, he actually was continuing to work full time in this capacity. Additionally, he reported that he was receiving his monthly SSA benefits. In a July 2015 financial status report, the Veteran indicated that he had worked as a security guard since 1990 and that he was currently working in that capacity, earning a salary of $1200 per month. He also indicated that he was currently receiving SSA benefits in the amount of $1632 per month. At a June 2016 VA examination, the Veteran was diagnosed with left shoulder strain, hypertension, type 2 diabetes and erectile dysfunction. The examiner noted that the Veteran was employed part time as a security guard. The examiner found that these conditions did not prevent the Veteran from securing or following a substantial gainful occupation. In a December 2016 pension eligibility verification report (EVR), the Veteran reported $17,592 in annual SSA income. He also reported $14,300 in annual income from his work as a security guard. Also, in a December 2016 medical expense report, the Veteran did not report any specific expenses. Entries of "Medicare Part B, Medicare Part D and Private Medical Insurance" are listed on the report but no amounts paid were filled in by the Veteran. In a separate December 2016 EVR, the Veteran reported that he contributed $11000 over the past year for support of a child not in his custody (presumably his adult daughter as the Veteran has not reported any other potential dependent children). In an April 2017 supplemental statement of the case, the RO determined that the Veteran's annual SSA income alone exceeded the applicable MAPRs for a Veteran with no dependents for the entire period from December 2009 to the present. In this regard, the MAPR for a single Veteran for the period beginning December 2009 was $ 985.00 (considered on a monthly basis) while the Veteran's monthly SSA income was $1143.00; the monthly MAPR beginning December 2011 was $1021.00 while the Veteran's monthly SSA income was $1184.00; the monthly MAPR beginning December 2012 was also $1021.00 while the Veteran's monthly SSA income was 1205.00; the monthly MAPR beginning December 2013 was $1054.00 while the Veteran's monthly SSA income was 1229.00; the monthly MAPR beginning December 2014 was $1072.00 while the Veteran's monthly SSA income was $1250.00; and the monthly MAPR beginning December 2016 was $1075.00 while the Veteran's monthly SSA income was $1638.00. The Board notes that in addition to the income from SSA, the Veteran has consistently reported that he has continued working as a security guard throughout the appeal period and to date has not reported that he has ceased this employment. Also, in both July 2015 and December 2016, he reported annual income from this employment in the amount of approximately $14300 and in the July 2015 report; he indicated that this approximate amount of annual income dated back to 1990. The Board also notes that the Veteran testified at the March 2015 Board hearing that he has been working full time in this capacity throughout the appeal period, aside from a brief period in October 2010 when he retired due to age. However, the Veteran did not specify the length of this period of brief retirement at the hearing or in the subsequent July 2015 or December 2016 reporting. He also did not report that it lowered his annual income from employment substantially during any year within the appeal period. Similarly, the Veteran reported working part-time at the June 2016 VA examination but did not subsequently report that this had reduced his wages in comparison to the earlier periods when he reported full time. Once again, in his December 2016 reporting, he simply indicated that he received $14,300 annually for his work as a security guard. Consequently, his additional reported income from this employment must be added to his annual countable income for pension purposes for each year during the appeal period. The Board notes that the Veteran has been given ample opportunity to more specifically report his annual employment income from employment over the course of the appeal period and to date, he has not done so. Consequently, as he does have a duty to provide this information in order for VA to appropriately determine his pension eligibility, the Board finds it appropriate to use the annual figure of approximately $14000 in employment income that he did report in determining this eligibility. Notably, this additional income added to his SSA income is greatly in excess of the applicable MAPR for a Veteran with no dependents. . The Board notes that the Veteran has reported that his daughter is his dependent even though she does not live with him, as he provides her with substantial support. It is also noteworthy that as the daughter was born in June 1993 and thus, turned 18 in June 2011. Additionally, there is no indication that the daughter, before the age of 18 years, became permanently incapable of self-support; or that after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) pursued a course instruction at an approved educational institution. Thus, it appears she could only potentially be classified as the Veteran's dependent for part of the appeal period. However, even assuming that she could be considered the Veteran's dependent for all or part of the appeal period, with the inclusion of the Veteran's income from employment, his annual income for pension purposes exceeds the annual MAPRs for a Veteran with one dependent. Pertinent to this case, these MAPRs are $15493 effective December 2009; $16051 effective December 2011; $16324 effective December 2012; $16569 effective December 2013; $16851 effective December 2014; $16902 effective December 2016; and $17241 effective December 2017. Notably, when the Veteran's estimated wages from employment are added to his SSA benefits, his annual income is shown to substantially exceed these MAPRs. In this regard, considering the Veteran's annual income for pension purposes effective December 2009, income from SSA benefits of approximately $13716 ($1143 x 12) plus an additional $14000 in annual wages, equals a total annual income for pension purposes in excess of $27000, which is greatly in excess of the $15493 MAPR effective December 2009 for a Veteran with one dependent. Calculations pertaining to subsequent years similarly reveal annual income greatly in excess of the annual MAPR (e.g. effective December 2016, the Veteran's wages were approximately $14,000 and his annual SSA benefits were approximately 19,656, leading to an annual income for pension purposes in excess of $33000, more than $15000 higher than the annual MAPR for a Veteran with one dependent of $16902. Thus, the evidence of record indicates the Veteran's annual income for pension purposes has always exceeded the applicable maximum annual pension rate even if his daughter can be recognized as a dependent for some or all of the appeal period. The Board notes that certain unreimbursed medical expenses may be excluded from countable income for pension purposes for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272. However, after being given an appropriate opportunity to do so, the Veteran has not reported any such expenses. In addition, while he has reported other types of monthly expenses, these are not of the type that can be deducted from his annual income for pension purposes. The Board empathizes with the Veteran's desire to obtain additional monthly income to help him support himself. However, the Board is bound to follow the controlling regulations, which only allow for an award of non-service connected pension when a Veteran has very minimal annual income for pension purposes. As the Veteran's income for pension purposes is shown to have exceeded the applicable maximum annual pension rate for all years included in the appeal period, the Board must deny the instant claim based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As the Veteran's income is excessive, entitlement to non-service connected pension is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs