Citation Nr: 18153460 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 10-03 691 DATE: November 27, 2018 ORDER Payment of nonservice-connected (NSC) pension benefits is denied.   FINDING OF FACT For the entire appeal period, the Veteran’s countable income exceeded applicable maximum annual pension rates. CONCLUSION OF LAW The criteria for payment of nonservice-connected pension benefits based on the Veteran’s countable income have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to March 1983 and from September 1990 to May 1991. The case is on appeal from a May 2009 decision. In November 2015, the Veteran testified at a Board hearing. In June 2016, the Board remanded the claim for additional development. The compensation claims that were also before the Board at that time have either been granted in full or no longer on appeal. In October 2017, the Veteran’s attorney withdrew representation prior to recertification of the appeal to the Board. Prior to certification of an appeal to the Board, a claimant’s representative may withdraw from representation before an agency of original jurisdiction at any time, “if such withdrawal would not adversely impact the claimant’s interest.” 38 C.F.R. § § 14.631, 20.608 (a). The Board finds that there is no adverse impact to the Veteran’s interest and Ms. Brewer withdrew representation with adequate notice and time for the Veteran to obtain new representation. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Whether the Veteran’s income exceeds the maximum threshold for the payment of VA NSC pension benefits. Legal Criteria A veteran who meets wartime service requirements and who is permanently and totally disabled due to disability not the result of willful misconduct is entitled to a rate of pension set by law, reduced by the amount of his countable income. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23. Countable income consists of payments of any kind from any source received during a 12-month annualization period (e.g., a year), unless specifically excluded. 38 C.F.R. § 3.271. Basic entitlement to pension exists only if, among other things, the Veteran’s countable income is not in excess of the maximum annual pension rate specified by law. 38 U.S.C. § 1521(a). If basic entitlement is met, the monthly rate of pension shall be computed by reducing the maximum annual pension rate (MAPR) by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). Whenever there is a change in a beneficiary’s amount of countable income the monthly rate of pension payable shall be computed by reducing the applicable maximum annual pension rate by the new amount of countable income on the effective date of the change in the amount of income and dividing the remainder by twelve. 38 C.F.R. § 3.273(b)(2). In determining annual income, all payments of any kind or from any source, including salary, retirement or annuity payments, or similar income, shall be included during the twelve-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were “in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid.” See 38 C.F.R. § 3.272(g)(1)(iii); 38 U.S.C. § 1503(a)(8). To be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the claimant received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. For the purpose of determining initial entitlement, or resuming payments on an award that was previously discontinued, 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 twelve. 38 C.F.R. § 3.273(a). Analysis The Veteran filed an initial claim for pension benefits which was received on December 30, 2008. The record shows that he has been in receipt of income from Social Security and military retirement. This income as reported by the Social Security Administration (SSA) and Defense Finance Accounting System (DFAS) and had been counted in calculating the Veteran’s countable income. The RO denied payment for NSC pension because the Veteran’s annual income exceeded the applicable MAPR for a veteran with one dependent. The applicable MAPR for a veteran with one dependent at the time the Veteran submitted his claim was $15,439.00. The MAPR was increased to $16,051.00 effective December 1, 2011, to $16,324.00 effective December 1, 2012, to $16,569.00 effective December 1, 2013, and to $16,851.00 effective December 1, 2014. SSA data shows that for the annualized appeal period beginning on December 30, 2008, the Veteran was in receipt of SSA benefits in the amount of $1,359.00 a month. The Veteran indicated in his claim that he had no other source of income and did not identify any spousal income. The Board finds that the Veteran’s annual income of $16,308.00 exceeded the applicable MAPR of $15,439.00, and is a bar to the payment of pension benefits. Unreimbursed medical expenses in excess of five percent of the applicable MAPR (in excess of $771.95 for the initial annualization period beginning on December 30, 2008) may be deducted from countable income. The Veteran identified unreimbursed medical expenses in the amount of $2,600.00 paid on November 1, 2008, and in the amount of $850.00 paid on December 1, 2008 in a December 2008 claim. However, these expenses were paid prior to the appeal period beginning on December 30, 2008 and are, therefore, not deductible. While the Veteran and his representative contend in November 2015 hearing testimony that income and expenses should be counted for all of 2008 because the Veteran lost his job and income in January 2008, the effective date of entitlement is set by the later date of the claim, and not the date entitlement arose. See 38 C.F.R. § 3.400. Thus, the Board may only count income and expenses paid during the annualized appeal period beginning on December 30, 2008. The Veteran has not identified any other medical expenses to be deducted from income or that these were recurrent expenses. In addition to income from SSA, DFAS Payment Worksheets show that beginning on December 1, 2014, the Veteran began receiving military retired pay in the amount of $1,128.00 a month, or $13,536.00 annually. Thus, his annual income continued to exceed the applicable MAPR. The Board notes that, effective January 22, 2015, the Veteran was in receipt of a total disability rating based on individual unemployability and as this represents the greater benefits, from January 22, 2015, the appeal for NSC pension is moot. The Veteran has not provided updated income and expense information for the appeal period from December 30, 2008 to July 31, 2015. The Board remanded the appeal in June 2016 to afford the Veteran an opportunity to submit income and medical expense information. In November 2017 correspondence, the Veteran was furnished with a VA Form 21-8416 “Medical Expense Report” and Improved Pension Eligibility Verification Report and was asked to report his income and any unreimbursed medical expenses. To date, the Veteran has not submitted the requested information and has not identified any additional medical expenses to be deducted from countable income. When the RO requests evidence and the claimant does not respond, the claim essentially may be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). See also Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Based on the available income information of record, the Board finds that countable income exceeded applicable maximum annual pension rates, and as the Veteran has not submitted additional income and expense information requested by the RO, he has effectively abandoned his claim. For these reasons, the Board finds that entitlement to payment for NSC pension is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung