Citation Nr: 18146498 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-36 861 DATE: October 31, 2018 ORDER Entitlement to payment of nonservice-connected disability pension benefits is denied. FINDING OF FACT The Veteran’s income exceeds the Maximum Annual Pension Income allowable for the applicable period. CONCLUSION OF LAW The criteria for entitlement to payment nonservice-connected disability pension benefits have not been met. 38 U.S.C. § 1521 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from May 1969 to February 1973. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Entitlement to payment of VA pension benefits. The Veteran has been granted basic eligibility for nonservice-connected pension benefits based upon his wartime service. However, he was denied entitlement to payment of payments because his income was excessive. Disability pension is paid 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. 38 U.S.C. §§ 1502, 1503, 1521. 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. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the veteran supports. 38 U.S.C. §§ 1521, 1522. The rate of pension payable to an entitled payee is based on the amount of countable income received. The maximum annual rate of pension (MAPR) is established by statute every year and is reduced by the veteran’s countable annual income. Annual income includes the veteran’s own annual income, and, where applicable, the annual income of a dependent spouse and, with certain exceptions, the annual incomes of each child of the veteran in his or her custody or to whose support he or she is reasonably contributing. 38 C.F.R. § 3.23(d)(4). In determining annual income for pension purposes, all payments of any kind or from any source, which is received by anyone in the recipient’s household, are generally counted as income during the 12-month annualization period in which received. 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. Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits; payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses in excess of five percent of the MAPR, which have been paid. Medical insurance premiums, as well as the Medicare deduction, may be applied to reduce countable income. 38 C.F.R. § 3.272 (g)(1)(iii). The only income information the Veteran provided was on his initial application, VA Form 526, received in April 2014, on which he reported being in receipt of annual earnings of $4,189. Inquiries to the Social Security Administration indicate that, in 2013, the Veteran spouse’s income totaled $16,320.00; and that the Veteran had annual wages of $5,000, Social Security monthly payments of $2,149.90 ($25,798 annual), a monthly retirement annuity of $82.00 ($984), and other monthly income of 3,200.00 ($38,400). Medical expenses of $1,258.00 were considered against these amounts. Nevertheless, the total income attributable to the Veteran and his spouse was $86,072.00. The MAPR for a veteran with a dependent receiving special monthly pension (SMP) with aid and attendance benefits, that was in effect in 2013, was $25,022. Therefore, the Veteran’s countable income of $86,072 clearly exceeded the income allowable to be entitled to disability pension payments. In an October 2014 telephone call, the Veteran confirmed annual wage income figures of $5,040 from one source, $5,950 from another source, and $16,574 for his spouse. The Veteran also confirmed that he was receiving Social Security benefits. However, the Veteran reported that he was not receiving any other income. In response, VA recalculated his countable income. This resulted in a sum of $53,363. The Veteran also reported additional medical expenses, which reduced his countable income by $606.76. This resulted in a sum of $52,756. As reported in the October 2014 Statement of the Case, the Veteran’s income still exceeded the applicable MAPR by $27,734. In April 2015, VA confirmed Social Security payments from November 2011 through December 2014, which reflect payments adjusted annually for inflation that are consistent with the amounts reported above. The Board also notes that the Veteran was provided with the applicable law and regulations in the decision letter and Statement of the Case. He was notified of the type of expenses that can be deducted from income in determining entitlement. Based on the income amounts confirmed by the Veteran and SSA, the Board concludes that the Veteran’s income exceeded the applicable MAPR during the period on appeal, and that payment of VA disability pension benefits was not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp