Citation Nr: 18155743 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 11-05 575A DATE: December 6, 2018 ORDER Whether the Veteran’s annual family countable income is excessive for the purposes of receiving Special Monthly Pension (SMP) based on the need for aid and attendance. FINDING OF FACT The Veteran and his spouse’s annual income exceeded the MAPR for the type of nonservice-connected pension sought, and there were not additional unreimbursed medical expenses including travel expenses in connection with the same, which would have when counted reduced income to a level under the MAPR. CONCLUSION OF LAW The criteria for receipt of Special Monthly Pension based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1502(b), 1521(d) (2012); 38 C.F.R. §§ 3.23, 3.351, 3.352(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter is for entitlement to nonservice-connected pension at the rate for additional compensation based upon aid and attendance. The Veteran had passed away during the pendency of the case. The appellant became the substituted claimant in March 2018. The Board previously remanded this case May 2014, for an additional opportunity to identify pertinent unreimbursed medical expenses for purpose of permitted reduction in countable income, in determining pension eligibility. Thereafter, the denial of the claim was continued by issuance of a February 2015 Supplemental Statement of the Case (SSOC), and the case has since returned for an appellate disposition. 1. Whether the Veteran's annual family countable income is excessive for the purposes of receiving Special Monthly Pension (SMP) based on the need for aid and attendance. Applicable Law Pension is a benefit payable by VA to veterans of a period of war who meets the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a) (2012); 38 C.F.R. § 3.3 (b)(4) (2017). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). 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. 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. Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271 (a)(3). Exclusions from income do not include Social Security Administration (SSA) benefits. 38 C.F.R. § 3.272. Such income is therefore included as countable income. Entitlement exists if, among other things, the claimant’s income is not in excess of the maximum annual pension rate (MAPR) specified by law. 38 U.S.C. § 1521(a). The MAPR payable is published in tabular form in Appendix B of Veterans Benefits Administration Manual M21-1, and is to be given the same force and effect as if published in the Code of Federal Regulations. 38 C.F.R. § 3.21. In this case, the nonservice-connected pension claim included requested recognition of need for aid and attendance. Effective December 1, 2006, the MAPR for a Veteran receiving aid and attendance with one dependent was $21,615. The MAPR was revised upward in successive years to $22,113 effective December 1, 2007; then to $23,396 effective December 1, 2008 (remaining at that level for several years); $24,239 effective December 1, 2011; $24,652 effective December 1, 2012; $25,022 effective December 1, 2013; $25,448 effective December 1, 2014; $25,525 effective December 1, 2016; $26,036 effective December 1, 2017. Moreover, VA laws and regulations direct that special monthly pension at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502(b), 1521 (2012); 38 C.F.R. § 3.351(a),(b) (2017). Pursuant to 38 C.F.R. 3.351(c), a veteran, spouse, surviving spouse or parent will be considered in need of regular aid and attendance if he or she: (1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) Is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). The provisions of 38 C.F.R. § 3.352(a) state, in turn, that the following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable, frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Background and Analysis The Veteran’s statement of expenses August 2007 indicated estimated medical expenses for that year of $15,000 due to hospitalization for a clinical condition. The Veteran’s spouse’s income was listed as $13,500 from part time employment. Elsewhere there is documented Social Security Administration (SSA) disability benefits payable to the Veteran in the total amount of $7,735 since June 2007. The May 2008 medical expense form provided by the Veteran’s spouse indicates further that over the previous calendar year (May 2007 through May 2008) there had been $5,141 gross annual income on the spouse’s part, and the Veteran received SSA disability benefits of $11,050. There were reported unreimbursed medical expenses of $18,054. These figures were updated a few months later, and further stated that the Veteran’s spouse received $9,600 annually in SSA disability benefits. Then upon a December 2008 medical expenses form, specifically for the time period from August 2007 to December 2007, there was determined to have been total medical expenses consisting of in the range of $15,000 to 26,000. These findings are characterized as such because there is not complete information on file definitively documenting how the expenses were incurred. There is also the issue of whether the Veteran’s health insurance covered several already and under the circumstances these would not be unreimbursed expenses. The April 2009 expenses form provided by the Veteran provided indicates that the Veteran received $13,704 in SSA benefits annually. The Veteran’s spouse had received approximately $21,000 in income that year. The April 2009 medical expense report indicated total expenses of approximately $20,000 for year 2009. Again, in reaching this calculation the specific additional expenses for private health insurance and for “travel” (non-medical related) have not been included. There were several lists of medications provides from years 2008 and 2009, which appears to be cumulative of the complete estimates already given. A December 2009 filing confirmed the claimant’s background information that year 2008 income consisted of the Veteran’s SSA benefits at $13,704 and his spouse’s employment income at $22,230. Year 2009 income consisted of the Veteran’s SSA benefits at $14,503 and his spouse’s employment income at $21,726. Further completed December 2009 and retroactively regarding year 2007, an Income Verification Match (IVM) procedure indicated the receipt of additional income for that year consisting of unemployment compensation at $8,918, and interest income from a bank account at $3,687. An October 2012 income and expenses report indicated that the Veteran had SSA benefits of $12,924 for year 2009, $14,502 for year 2010. The Veteran’s spouse’s employment income was $21,426 for year 2009, $23,401 for year 2010. Additionally, the Veteran and his spouse had provided several forms indicating the complete mileage that they traveled during year 2012 for purpose of medical appointments, which per applicable VA regulations are acknowledged at a rate based upon 41.5 cents / mile. Further stated were travel expenses by air transportation. The Board’s May 2014 remand requested that another opportunity be provided to identify the foregoing, and $10,578 was the combined figure then indicated by the documented mileage based upon additional correspondence from the prior representative in this matter. Having reviewed the foregoing reported financial information, based upon the applicable income and medical expenses, the requirements for SMP based on need for aid and attendance have not been met. Essentially, countable income exceeds the MAPR, this including when factoring in applicable unreimbursed medical expenses. The Board takes into consideration that its prior May 2014 remand requested further information as to travel expenses for medical appointments and any additional pertinent financial data, the Veteran’s representative provided additional information. On the whole, the outcome of the claim for nonservice-connected pension turns on the numbers, and whether the MAPR is or is not exceeded based on all forms of countable income. Given that the numerical data does not show the requisite need, the claim for nonservice-connected pension must be denied. For the year 2007, taking the available information from the Veteran claimant the combined income for himself and his spouse was $43,440. That figure is inclusive of SSA income, the Veteran’s spouse’s employment income, and interest income from various accounts. Also included was a brief period of unemployment benefits. The income received clearly exceeded the MAPR of $21,615. There is still the question of unreimbursed medical expenses, however, that factor does not appear to change the result since the expense amount was relatively high but very likely has not exceeded the almost $22,000 gap between the MAPR and the joint income. First, the unreimbursed medical expense exclusion for 5 percent of the MAPR must be taken into account. Second, the estimates of unreimbursed medical expense vary considerably and as indicated the information made available does not definitively establish that every single one of listed medical expenses were unreimbursed, including by private health insurance or as applicable Medicare. Otherwise, the list given appears to be complete. Additional detail would help rule out duplicative expenses. Again, even assuming most or nearly all of the expenses listed met the requirements for “unreimbursed medical expense” the overall amount listed appears to fluctuate some based upon which document is considered. There are not clear grounds to find $22,000 of unreimbursed medical expenses based upon available information. While medical expenses were high, there was joint income, and the difference between that income and the MAPR would be difficult to make up. Further observed, the Board’s last remand gave opportunity to provide additional documentation (though focusing on the year 2012), and nothing was received that discussed year 2007 to warrant additional consideration of the issue. During the subsequent time periods reviewed the results are basically similar, in that the joint income for the Veteran’s household remained at or near the same level. It significantly exceeded the MAPR for when pension is determined to be needed, usually by at least $20,000. The unreimbursed medical expenses and later the recorded travel expenses did not reduce countable income to the point that the MAPR level was no longer exceeded. Accordingly, applying the guidelines for determining whether pension is payable, the Board finds that these requirements were not met, and the claim on appeal is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel