Citation Nr: 18153209 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-15 586 DATE: November 28, 2018 REMANDED Entitlement to nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran had active military service from December 1941 to November 1945. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. In the Veteran’s April 2015 substantive appeal (VA Form 9), he requested a Board hearing, which was subsequently scheduled in October 2018. Although the Veteran was duly notified of the time and date of the hearing, he failed to report and neither furnished an explanation for his failure to appear nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.702(d), when a Veteran fails to appear for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. In April 2010, the Veteran submitted an application for VA pension benefits. At that time, he reported that he was married in June 1976, but had separated in August 1993. He indicated that he had no dependents. He reported that in 2009, his annual income was $3,715.20. His current income consisted of $2,120 per month in social security income and $302 per month in business income. He denied receiving income from any dependents. With regards to expenses, he documented $26,000 per year for alimony payments and $1,368 per year in health insurance payments. In support of the claim, the Veteran provide a portion of his separation agreement, in which it was noted that the Veteran and his spouse separated in July 1993. Since that time, he paid alimony of $500 per week. In a Social Security Administration (SSA) inquiry response, it was noted that the Veteran received $2,216.50 per month in benefits and paid $96.50 per month in premiums. The Veteran’s claim was denied with the RO finding that the Veteran’s income, exceed the limit at the aid and attendance rate for a Veteran with no dependents. See February 2011 Notification Letter. Thereafter, the Veteran provided additional information regarding medical expenses. 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. § 1521(a); 38 C.F.R. §§ 3.3 (a)(3). Payments of VA nonservice-connected pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable family income. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. 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. The income of a dependent spouse is included as countable income for VA pension purposes. 38 C.F.R. § 3.23(d)(4). A veteran’s spouse who resides apart from the veteran and is estranged from the veteran may not be considered the veteran’s dependent unless the spouse receives reasonable support contributions from the veteran. 38 C.F.R. § 3.23(d); see also 38 C.F.R. § 3.60 (providing that for purposes of determining entitlement to pension, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged). A couple is “estranged” if they live apart because of marital discord. See VA’s Adjudication Procedures Manual, M21-1, Part IV, 16.26(b)(5). 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 maximum annual rate payable. 38 C.F.R. § 3.262. In determining the initial award entitlement, the monthly rate of pension payable shall be computed by reducing the applicable MAPR by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). The initial period is defined as the period extending from the effective date of the award through the end of the month that is 12 months from the month during which pension entitlement arose. See VA’s Adjudication Procedures Manual, M21-1, Part V, Subpart iii, 1.E.34(a). The maximum annual rates of improved pension are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. The rates of pension benefits are published in tabular form in appendix B of Veterans Benefits Administration Manual M21-1 (M21-1), and are given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. As set forth above, the Veteran’s pension claim was denied due to excessive income for a Veteran with no dependent. In a subsequent March 2015 statement of the case, the RO denied the claim due to excess income for a Veteran with one dependent. In reaching this determination, the RO considered the appellant’s spouse’s income, which include SSA income and pension payments. See March 2012 Correspondence. However, in a July 2012 Report of General Information, it was noted that the Veteran was contacted to determine his wife’s medical expenses. The Veteran indicated that her medical expenses were “considerable.” The RO advised the Veteran that his spouse would be provided medical expense forms to report her medical expenses. The record available to the Board does not show that the Veteran’s spouse was provided the medical expenses forms nor was the Veteran advised to provide such information. Under current VA regulations and laws, if a veteran and spouse physically live apart for reasons related to marital discord, but the veteran makes reasonable contributions to the support of the spouse, then the spouse is considered a dependent and the combined MAPR applies. Applicable law provides that unreimbursed medical expenses are excluded from countable income. As medical expenses for the Veteran’s spouse were not requested, remand is required to obtain such information. The matter is REMANDED for the following action: The Agency of Original Jurisdiction should contact the Veteran and request that he clarify his income. He should be asked to submit complete income and expense information, to include his spouse’s income; the amount he contributes to her support, if any; and any expenses which may reduce his countable income from 2010 to the present, which includes his spouse’s medical expenses. He should be advised that the submission of the requested forms is necessary to ascertain his countable family income for purposes of determining whether he is basically eligible for pension. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel