Citation Nr: 18149751 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 13-35 678 DATE: November 14, 2018 ORDER The termination of nonservice-connected pension (NSP) benefits effective January 1, 2004 was proper; the appeal is denied. FINDING OF FACT As of January 1, 2004, the Veteran’s countable income exceeded the applicable maximum annual pension rate (MAPR). CONCLUSION OF LAW Termination of the Veteran’s nonservice-connected pension benefits, effective January 1, 2004, based on excessive income was proper. 38 U.S.C. § 1521 (2014); 38 C.F.R. §§ 3.31, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1970 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 determination issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) located in Milwaukee, Wisconsin. The Veteran testified before the undersigned at a Board videoconference hearing in December 2016. A transcript of the hearing is of record. This matter was before the Board in May 2017 at which time it was remanded for additional evidentiary development. A review of the record shows that there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board observes that the issues of entitlement to service connection for frostbite injuries to the feet and entitlement to a rating in excess of 30 percent for bronchitis have been certified to the Board. However, in the appellant’s substantive appeal received in September 2017, he requested a Board videoconference hearing. The evidence available to the Board does not show that the request for a Board hearing has been withdrawn. In light of the pending Board hearing request, the above-referenced claims will not be addressed at this time. The Board also notes that in a June 2017 rating decision, the regional office (RO) denied service connection for bilateral hearing loss and tinnitus. Thereafter, in September 2017, the Veteran filed a timely notice of disagreement. A statement of the case has not been issued with regards to these claims. Generally, the filing of a notice of disagreement confers jurisdiction on the Board and the next step is for the Agency of Original Jurisdiction (AOJ) to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). However, because the Board’s review of the claims file reveals that the RO is still acting on these claims, the Board will not exercise formal jurisdiction over them at this time. 1. Whether the termination of nonservice-connected pension (NSP) benefits effective October 1, 2003 was proper. Pursuant to 38 U.S.C. § 1521(a), pension is payable to a Veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. Basic entitlement exists if, among other things, such Veteran’s income is not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1503, 1521 (2012); 38 C.F.R. §§ 3.3, 3.23 (2017). Payments of VA nonservice-connected pension benefits are made at the specified maximum annual rate, reduced on a dollar-for-dollar basis by annualized countable family income. Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272 (2017). Unreimbursed medical expenses, which were paid within the twelve-month annualization period regardless of when incurred, are excluded from annual countable income to the extent that the amount paid exceeds 5 percent of the regular maximum annual rate payable to a single veteran (excluding increased pension because of the need for aid and attendance). 38 C.F.R. § 3.272 (2017). The rates of pension are published in tabular form in Appendix B of the Veterans Benefits Administration Manual M21-1, and are given the same force and effect as if published in the Code of Federal Regulations. The maximum annual pension rate (MAPR) is adjusted from year to year. 38 C.F.R. § 3.21 (2017). Effective December 1, 2002, the MAPR for a Veteran without a dependent was $9,690 and the MAPR for a Veteran with one dependent was $12,692. Effective December 1, 2003, the MAPR for a Veteran with one dependent was $12,959. Effective December 1, 2004, the MAPR for a Veteran with one dependent was $13,309. Effective December 1, 2005, the MAPR for a Veteran with one dependent was $13,855. Effective December 1, 2006, the MAPR for a Veteran with one dependent was $14,313. Effective December 1, 2007, the MAPR for a Veteran with one dependent was $14,643. Effective, December 1, 2008, the MAPR for a Veteran with one dependent was $15,493. Effective December 1, 2009 the MAPR for a Veteran with one dependent was $15,493. Effective December 1, 2011, the MAPR for a Veteran with one dependent was $16, 051. Effective December 1, 2012, the MAPR for a Veteran with one dependent was $16,324. Effective December 1, 2013, the MAPR for a Veteran with one dependent was $16,569. Effective December 1, 2014, the MAPR for a Veteran without a dependent was $12,868 and with one dependent was $16,851. See M21-1, Part I, Appendix B. Factual Background In May 2001, the Veteran’s application for pension was received. At that time, he reported that he was divorced. His total net worth was $400, which included stocks, bonds, and bank deposits. He denied receiving any income. In March 2002, the Veteran submitted Income and Tax Statements. In a 2001 Form 1099 for miscellaneous income, it was noted that the Veteran’s income in 2001 was $5,518.43. In a VA Form 119 Report of Contact received in November 2002, the appellant indicted that his income for 2002 would be less than $5,000. Based on the Veteran’s reported income, the RO granted nonservice-connected pension, effective May 10, 2001, in a November 2002 rating decision. In a March 2003 statement in support of the claim, the Veteran reported that he last worked in 2002 and that his income in 2002 did not exceed $2,500. He reported that he was currently unemployed and had no income except for his VA nonservice-connected disability pension. Subsequently, in a July 2003 notification letter, VA informed the Veteran that his disability pension had been amended. The Veteran was advised to notify VA if there were changes to his income or number of dependents. Eligibility Verification Reports were provided to the Veteran in December 2007, December 2008, December 2009, and December 2010 in which he was instructed about his responsibility to tell VA if he or a family member (a spouse or a child) started receiving income. In correspondence received in November 2011, the Veteran reported that he had withdrawn money from the stock market. He represented that he made $1,483. An additional Eligibility Verification Report was provided to the Veteran in December 2011 in which he was again instructed to report any changes in income. In correspondence received in September 2012, the appellant reported that he had received $288 in a tax refund. He also noted that was married to G. M. H. In a statement received in October 2012, the Veteran reported that in 2009, he made $673. He stated that he drew out all of his stocks to remodel this house. He also reported that he now received $62.80 per month in retirement pension. In a November 2012 notification letter, it was proposed to terminate the Veteran’s pension benefits as a result of his report of being married and failing to provide his spouses income. In a statement received in December 2012, the Veteran stated that he was married on September 13, 2003. See also Marriage Certificate/License, received 12/28/2012. The Veteran provided Improved Pension Eligibility Verification Reports in December 2012 in which he provided income information from 2007 to 2011. Specifically, he reported that he was married and living with his spouse. With regards to monthly income, he reported that in 2007, his wife received $2,472.47 per month in pension payments. Her annual pension income was $29,669.64. Additionally, she received $7,514.35 in gross annual income, $885 in annual interest and dividends, and $5,876 annually in income from all other sources. Her annual income was $14,275.35. The gross income in 2007 was $43,944.99. In 2008, the Veteran reported that he received $69.80 per month in pension payments and that his wife received $900.91 per month in pension payments. The total combined monthly pension income was $970.71. The annual pension income was $11,648.52. With regards to annual income, the appellant reported the he received $76.20 in interest and dividends. His wife received $9,697.67 in gross annual income and $285.80 in interest and dividends. The combined annual income in 2008 was $10,059.67. The gross income in 2008 was $21,708.19. In 2009, the Veteran reported that his wife received $705.38 per month in pension payments. Her annual pension income was $8,646.56. With regards to annual income, the Veteran reported that he received $62.00 in interests and dividends. His wife received $10,066.23 in gross annual income and $280.00 in interest in dividends. The combined annual income in 2009 was $10,398.23. The appellant also reported that he cashed in investments in the amount of $46,591.50. The gross income in 2009 was $65,630.29. In 2010, the Veteran reported that his wife received $705.38 in pension payments. Her annual pension income was $8,646.56. With regards to annual income, his wife received $9,223 in gross annual income and $11 in interest in dividends. The combined annual income in 2010 was $9,234.00. The Veteran reported that he cashed in an annuity in the amount of $10,613.44. The gross income in 2010 was $28,494. In 2011, the Veteran reported that he received $69.80 per month for pension and that his wife received $705.38 per month for pension. The combined annual pension income was $9,302.16. With regards to annual income, the appellant reported his wife received $13,143.24 in gross annual income, $5 in interest in dividends, and $2,707 from all other sources. The combined gross annual income was $15,855.24. The Veteran also reported that he received $7,466.86 for in inheritance. The gross combined annual income in 2011 was $32,604.26. The PMC terminated the Veteran’s nonservice-connected pension benefits, effective March 1, 1998, in a February 2013 determination letter. In a Financial Status report received in December 2015, the Veteran reported that he was not married. He reported that his monthly income included $780 from the Social Security Administration (SSA) and $82.20 for retirement. His total monthly income was $842.80. His gross annual income was $10,113.60. The accompanying divorce decree indicates that the Veteran was divorced in April 2015. The Veteran provided account transcripts from the Internal Revenue Service (IRS) in December 2017. The transcripts show that in 2004, the gross adjusted income was $20,875; in 2005, the gross adjusted income was $26,784; in 2006, the gross adjusted income was $26,479; in 2007, the gross adjusted income was $33,483; in 2008, the gross adjusted income was $8,878; and in 2009, the gross adjusted income was $29, 424. The appellant also provided IRS wage and income transcripts from 2014 to 2016. The wage and income transcripts show that in 2015, the appellant received $8,580 in pension and annuities and in 2016, he received $9,360 in pension and annuities. A copy of the Veteran’s divorce decree shows that his divorce was divorced from G. M. H. in April 2015. In an October 2018 statement, the Veteran reported that he did not file taxes in 2012 and 2013. He indicated that he had no further evidence to provide. Analysis After a review of the evidence, the Board finds that from January 1, 2004, the Veteran’s countable income exceeded the MAPR, thus termination of the Veteran’s nonservice-connected pension benefits was proper. At the outset, the Board notes that the PMC terminated the Veteran’s nonservice-connected pension benefits, effective March 1, 1998. However, nonservice-connected pension benefits were not in effect in 1998. As delineated above, nonservice-connected pension was awarded in a November 2002 rating decision, effective May 10, 2001. Further, the evidence does not show that the appellant was married until September 13, 2003. The Board acknowledges that the Veteran reported that he did not receive income in 2003 and did not provide income for his spouse in 2003. Notwithstanding, in the May 2017 remand directives, the PMC was requested to obtain income information for the Veteran and his spouse, to specifically include income for 2003. A review the record indicates that the PMC requested income from 2004 to 2015. There is no indication that income for 2003 was requested. As such, the Board finds that the evidence currently available is insufficient to determine whether the Veteran’s income prior to January 1, 2004 exceeded the MAPR. From January 1, 2004, the Veteran’s countable income has exceeded the MAPR for a Veteran with one dependent. As noted above, in 2004, documentation from the IRS demonstrates that the Veteran’s gross adjusted income was $20,875. The MAPR for a Veteran with one dependent in 2004 was $12,959. The Veteran did not report any unreimbursed medical expense which would have reduced his countable income. Further, the Veteran has not provided any evidence that his countable income was lower than the applicable MAPRs from January 2005 to April 2015, the date of his divorce. As detailed herein, the evidence obtained in connection with the claim on appeal consistently demonstrates that the Veteran’s income was higher than the MAPR. The Board observes that despite the request for the Veteran to provide income information from 2004 to 2015, he failed to provide complete information from 2012 to 2015. Notably, the Veteran reported that he did not file taxes in 2012 and 2013. The IRS wage and income transcripts do not show income for the Veteran 2014 or for his former spouse for 2014 and 2015. Nonetheless, the evidence indicates that the Veteran was still married (through April 2015), however, the Veteran failed to provide his wife’s income for that time. Neither the Veteran nor the evidence indicates that he did not have access to his former spouse’s income. As the available evidence indicates that the Veteran’s and his spouse’s combined income was consistently higher than the MAPR for a Veteran with one dependent, it can be logically reasoned that their combined income exceeded the MAPR from 2012 until their divorce in 2015. In reaching this conclusion, the Board acknowledges that there are conflicts in reported income in the IRS documents and the income information provided by the Veteran from 2007 to 2009. In this regard, the Veteran’s has consistently reported income higher than the gross income reflected in the IRS documents, specifically for 2008. However, as the income information provided by the Veteran includes information regarding inheritance, investments, and annuities, the Board finds his reports reflective of his income picture at that time. Additionally, the Board observes that evidence in 2015 and 2016 shows annual income below the MAPR for Veteran without a dependent. However, since May 1, 2008, the Veteran has a 30 percent combined evaluation for compensation, which is a greater benefit than nonservice-connected pension benefits. As the appellant’s countable income was in excess of the applicable pension rate as of January 1, 2004, termination of the Veteran’s NSP benefit was proper. In sum, the termination of the Veteran’s nonservice-connected pension benefits based upon excessive countable income, effective January 1, 2004, was proper. Pursuant to the governing legal authority, the Veteran did not meet the basic income eligibility requirement to establish entitlement to payment of nonservice-connected pension during the period on appeal. Although an appellant is entitled to the benefit of the doubt when the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable in this case, as the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit sought on appeal must, therefore, be denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel