Citation Nr: 18141071 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-20 709 DATE: October 9, 2018 ORDER Entitlement to nonservice-connected pension is granted. FINDING OF FACT Applying the appropriate maximum annual pension rate (MAPR) for a veteran with one dependent who is in need of aid and attendance of another, the Veteran's household income did not exceed the effective MAPR for the period on appeal. CONCLUSION OF LAW The criteria for payment of nonservice-connected pension have been met. 38 U.S.C. §§ 1513, 1521, 5312 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.205, 3.271, 3.272, 3.273, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1953 to August 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. In February 2017, the Veteran and his spouse testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2017, the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since returned to the Board for the purpose of appellate disposition. Entitlement to Nonservice-Connected Pension A veteran who meets the wartime service requirements 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. 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 Veteran has one dependent, his spouse. During the pendency of his claim, the applicable MAPRs for a Veteran with one dependent, who is permanently and totally disabled have been $16,569 effective December 1, 2013; $16,851 effective December 1, 2014; and $16,902, effective December 1, 2016. Also, a higher rate of pension is available for a Veteran who is housebound and an even higher rate of pension is available for a Veteran who is in need of regular aid and attendance. 38 U.S.C. § 1541(d)(1); 38 C.F.R. § 3.23(d)(2). A person is considered permanently housebound if he or she is substantially confined to the home by reason of disabilities that are reasonably certain to remain throughout the lifetime. 38 U.S.C. § 1541(e). 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(f). A person shall be considered in need of regular aid and attendance if (1) a patient in a nursing home, or (2) blind or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1502 (b). In determining whether a person needs regular aid and attendance, consideration is accorded to the inability of the person to dress or undress herself, to keep herself ordinarily clean and presentable, to feed himself, to attend to the wants of nature, or to protect himself from hazards or dangers incident to her daily environment. It is not required that all of the listed types of incapacity be found to exist before a favorable rating may be made. It is only necessary that the evidence establish that the person is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The applicable MAPRs for a Veteran in need of the aid and attendance of another person with one dependent have been $25,022 effective December 1, 2013; $25,448 effective December 1, 2014 and $25,525 effective December 1, 2016. During the Veteran’s Board hearing, he testified that he was legally blind. He noted that he used a walker in the house and was not able to prepare his own meals. He needed assistance with his medication. An October 2016 examination for housebound status or permanent need for regular aid and attendance reflects that the Veteran had mild neurocognitive disorder/mild cognitive impairment. The examiner reported that the Veteran was able to feed himself, but could not prepare his own meals due to mild cognitive impairment. He did not need assistance with bathing and tending to other hygiene needs. He was legally blind due to macular degeneration, glaucoma and diabetic retinopathy. Vision was 20/70 in the left eye and 20/200 in the right eye. He needed assistance with medication management and was not able to manage his own financial affairs due to dementia. He had no restrictions of the upper extremities, lower extremities, spine, trunck, or neck. He had no loss of bowel or bladder control. The examiner indicated that the Veteran had no contraindications or limitations to leave his home, though he was usually accompanied by his wife and needed assistance from his wife for his instrumental activities of daily living. VA treatment records dated from 2016 to 2018 detail the Veteran’s difficulties with his vision and cognitive disorder, along with other disorder such as hypertension and diabetes mellitus. A 2017 activities of daily living screen reflects that the Veteran was independent in activities of daily living, but completely dependent with respect to instrumental activities of daily living such as medication, finances, food preparation, laundry, and transportation. The Veteran’s wife observed occasional forgetfulness, little initiation of conversations, and occasional forgetfulness for attending to his personal hygiene. She also reported that he needed assistance when completing his basic and instrumental activities of daily living, primarily as a result of his visual deficits. A January 2018 report notes corrected distance vision of 20/160 in both eyes and visual field defects, with diagnoses of primary open angle glaucoma, bull’s eye maculopathy, diabetic retinopathy, and pseudophakia. The Board acknowledges that the evidence reflects that the Veteran is generally able to complete activities of daily living such as eating, dressing, and bathing. However, given that he requires assistance with getting around the house, meal preparation, medication, and finances due to his neurocognitive disorder/dementia and visual impairment render him so helpless as to need regular aid and attendance. While medical records are not of record prior to 2016, given the nature of the Veteran’s disorders, the Board resolves reasonable doubt in the Veteran’s favor and finds that he has been in need of aid and attendance for the entire appeal period. Accordingly, when assessing whether the Veteran's level of income would allow for receipt of non-service connected pension, the Board may consider whether the Veteran's annual household income for pension purposes is less than the higher MAPR for a disabled Veteran with one dependent in need of aid and attendance of another individual. Financial status reports and the Veteran’s Board hearing testimony indicate that his primary source of income is Social Security benefits for himself and his spouse, along with a $103 per month insurance policy payment. SSA data match records indicate that the Veteran and his spouse received $865.90 and $817.90 per month at the time he filed his claim for benefits in 2014. Combining these payments along with the income from the insurance policy reflects a yearly income of $21,406, which is lower than the MARP at the aid and attendance rate for a veteran with one dependent for that year, $25,022. Even considering cost of living adjustments of Social Security benefits from 2015 through 2018—1.7 percent in January 2016 (increasing the respective monthly payments to $879 and $831), no increase in January 2016, 0.3 percent in January 2017 ($886 and $834), and 2.0 percent in January 2018 ($904 and $850), the Veteran’s household income is still not in excess of the MARP of $25,448 effective December 1, 2014 and of $25,525 effective December 1, 2016, regardless of any medical expense deduction for any given year. See https://www.ssa.gov/news/cola/. It is the Board's conclusion under the circumstances of this case and resolving reasonable doubt in his favor, that the Veteran's countable income for the period on appeal should have been calculated based on a veteran with one dependent in need of the aid and attendance. As shown above, the Board finds that by applying the appropriate MAPR for a veteran with one dependent who is in need of the aid and attendance, his household countable income did not exceed the effective MAPR so as to preclude payment for the entire period on appeal. Accordingly, entitlement to nonservice-connected pension is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel