Citation Nr: 18150346 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-46 371 DATE: November 15, 2018 ORDER The appeal of the reduction in the Veteran’s pension payment rate, effective July 1, 2014, due to receipt of Social Security Administration (SSA) payments is denied. (The Veteran’s service connection claims and the appeal of the effective date of special monthly pension benefits will be addressed in a separate Board decision pursuant to BVA Directive 8430 since those issues are based on completely different law and facts due to the corpus and income considerations required in this appeal.) FINDING OF FACT The Veteran began receiving $633.00 per month from the SSA in May 2014 with subsequent cost-of-living adjustments commensurate with cost-of-living adjustments for the applicable maximum annual pension rate for his VA pension benefits. CONCLUSION OF LAW The criteria for a reduction in the Veteran’s pension payment rate due to receipt of SSA payments were met as of July 1, 2014. 38 U.S.C. § 1521, 5112 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.105, 3.271, 3.272, 3.660 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota, that reduced the Veteran’s pension payment rate due to the receipt of SSA payments. Basic entitlement to nonservice-connected pension benefits exists if, among other requirements, the Veteran’s income is not more than the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3(a)(3), 3.23(a), (b), (d)(4). 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. See 38 C.F.R. § 3.21. The MAPR is adjusted from year to year. If the Veteran’s income is less than the MAPR, VA will pay benefits to bring his or her income up to that level. If the Veteran’s income exceeds the MAPR, pension benefits are not warranted. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271. SSA payments are not excluded under 38 C.F.R. § 3.272; therefore, they are considered countable income for pension purposes. Whenever there is a change in a Veteran’s income, the MAPR will be reduced by the new annualized income effective on the date of the change in income, dividing the remainder by 12. 38 C.F.R. § 3.273(b)(2). The due process requirements for a reduction in pension benefits due to an increase in income are outlined in 38 C.F.R. § 3.105(h). The Agency of Original Jurisdiction (AOJ) must issue an administrative action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given a period of 60 days within which he or she may submit additional evidence or request a predetermination hearing. If additional evidence is not received in that period, a final administrative action may be taken to effectuate the reduction. 38 C.F.R. § 3.105(h). Where a reduction of a running pension award is warranted due to an increase in income, the reduction shall be made effective the end of the month in which the increase occurred. 38 U.S.C. § 5112(b)(4)(A); 38 C.F.R. § 3.660(a)(2). Here, the record establishes the Veteran began receiving $633.00 per month from the SSA in May 2014 with subsequent cost-of-living adjustments commensurate with cost-of-living adjustments in the MAPR for his VA pension benefits. In October 2015, the AOJ sent the Veteran notice that his pension payment rate would be reduced from $1,054.00 to $421.00 per month, effective July 1, 2014, due to his SSA income with a subsequent adjustment, effective December 1, 2014, due to cost-of-living adjustments in both SSA payments and the MAPR. The AOJ advised the Veteran he had 60 days following the date of the October 2015 notice to provide additional evidence regarding the proposed reduction. In December 2015, the AOJ sent the Veteran notice that the proposed reduction action would be taken because it had not received additional evidence showing why a reduction was not warranted. The December 2015 notice incorporated the payment of special monthly pension benefits, effective September 1, 2014, but did not otherwise disturb the reduction proposed in the October 2015 notice. (CONTINUED ON NEXT PAGE) Although the Veteran filed a timely notice of disagreement regarding the reduction decision, he has yet to provide any additional evidence or argument that relates to the reduction in his pension payment rate due to the receipt of SSA payments. The Board reiterates SSA payments are not excludable income for pension purposes. See 38 C.F.R. § 3.272. The AOJ complied with the procedural requirements of 38 C.F.R. § 3.105(h) before effectuating the reduction in the Veteran’s pension payments. In sum, the undisputed facts in this case show a reduction in the Veteran’s pension payment rate was warranted due to his receipt of SSA payments. As such, the Veteran’s appeal of the reduction must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel