Citation Nr: 18158838 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-40 629A DATE: December 18, 2018 ORDER Entitlement to non-service-connected disability pension benefits is denied. FINDING OF FACT The Veteran’s spouse is a dependent for VA non-service-connected disability pension benefits purposes but the Veteran has failed to provide her income, net worth and medical expenses information. CONCLUSION OF LAW The criteria for entitlement to non-service-connected pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from October 1950 to May 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board remanded the Veteran’s appeal for additional development. There has been substantial compliance with the Board’s remand. The RO sent the Veteran a letter in March 2018 requesting the additional information from the Veteran that the Board directed in its remand. In April 2018, a Supplemental Statement of the Case was issued continuing the denial of the Veteran’s claim and his appeal was returned to the Board. Entitlement to non-service-connected disability pension benefits In May 2015, the Veteran filed a claim for non-service-connected disability pension benefits but only reported his income, net worth and medical expenses information. He reported that he was married and living with his spouse. Despite being asked for his spouse’s income, net worth and medical expenses information in a May 2015 duty to assist letter, the Veteran responded that he does not believe that she is a dependent for VA purposes because, since their marriage in 1989, which is the second marriage for both of them, she has filed her federal income tax return 1040 as “single” rather than “joint.” Thus, he contends that he does not support his spouse and, therefore, she is not a dependent of his and VA should not count her income and net worth toward calculating his pension entitlement. See June 4, 2015 Correspondence. The Veteran has provided his spouse’s statement in which she states that she does not depend upon the Veteran for support and that she does not share a bank account or any other assets with the Veteran. She also stated that since their marriage in 1989, she has filed her federal tax returns as “single and filing separately” and never jointly. See August 22, 2016 Lay Statement. The Veteran was afforded an RO hearing in March 2018 on this matter. The RO sent the Veteran a letter in March 2018 requesting the additional information from the Veteran that the Board directed in its remand; however, the Veteran has not supplied his spouse’s income, net worth and medical expenses information. Disability pension is paid to a veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements, and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct or who meets certain age requirements. 38 U.S.C. §§ 1502, 1503, 1521. The purpose of VA pension benefits is to provide a subsistence income for veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the veteran supports. (Emphasis added.) 38 U.S.C. §§ 1521, 1522. The rate of pension payable to an entitled payee is based on the amount of countable income received. The maximum annual rate of pension (MAPR) is established by statute every year and is reduced by the veteran’s countable annual income. “Annual income” includes the veteran’s own annual income, and, where applicable, the annual income of a dependent spouse and, with certain exceptions, the annual incomes of each child of the veteran in his or her custody or to whose support he or she is reasonably contributing. (Emphasis added.) 38 C.F.R. § 3.23 (d)(4). Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits; payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses in excess of five percent of the MAPR, which have been paid. Medical insurance premiums, as well as the Medicare deduction, may be applied to reduce countable income. For purposes of calculating the five percent deduction for medical expenses, the MAPR is calculated using the rate for a veteran and any dependents, without regard for SMP status. (Emphasis added.) 38 C.F.R. § 3.272 (g)(1)(iii). For purposes of VA pension benefits, a “dependent” is defined as a veteran’s spouse or child. 38 C.F.R. § 3.23(d)(1). A spouse is not a “dependent” if he or she resides apart from the veteran, is estranged from veteran, and does not receive support contributions from the veteran. (Emphasis added.) Id. The term is further clarified by 38 C.F.R. § 3.60, which notes that a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged. Furthermore, 38 U.S.C. § 1521(b) and (c) defines an “unmarried” veterans to include those that are married but not living with or reasonably contributing to the support of their spouses and “married” veterans as those that are living with or reasonably contributing to the support of their spouses. The statutory and regulatory texts taken separately and together indicate that a veteran’s spouse is a “dependent” if he or she lives with the veteran regardless of the level of support the spouse receives from the veteran. Thus, information about the Veteran’s spouse’s income as well as their collective net worth is required to properly decide the Veteran’s application. The Board has reviewed the Veteran’s written statements and oral testimony and understands the Veteran’s contentions that his spouse is not his dependent because she has her own income and bank account, files her own tax return and, therefore, does not rely on him for her support. Unfortunately, however, he does not appear to be correctly understanding VA law on the subject. The Veteran is focused on the phrase “income of your dependents (spouse, child, etc.), if any” in the instructions on page 7, Section VIII, Number 26 on the VA Form 21-527EZ that he submitted in his application for VA non-service-connected disability pension benefits. See his submission received August 26, 2015. He argues that the word “dependent” is defined as “one who relies upon the support of another”; the parenthesis around the phrase “spouse, child, etc.” is used to modify or mark off a term, in this case “spouse,” in order to qualify the term and allow for an explanation and modify the term “dependent”; and the phrase “if any” is an indication that he is permitted and encouraged to submit evidence that he does not have any dependents, including a spouse. He further argues that the term “as applicable” when taken in combination with the other three terms/phrases says that the term “dependent” is not applicable to the Veteran’s spouse. Unfortunately, the Veteran’s arguments are not consistent with VA law. As set forth above (with the pertinent parts bolded for clarity), VA law defines what a dependent is and that a spouse is a dependent except in a very narrow circumstance. That narrow exception applies only when the Veteran and his or her spouse are estranged and not living together, and the Veteran does not reasonably contribute to the spouse’s support. The evidence shows that the Veteran and his spouse are living together. The Veteran appears to have read the instructions for the VA Form as if it is VA law. When he was advised of what VA law says, such as at the March 2018 RO hearing, he appears to the interpret the instructions using VA law. However, the instructions are merely a simplified interpretation of VA law given to assist a claimant in how to fill out the form. The language therein can only be interpreted by referring to VA statutes and regulations for the specific provisions of what the law says in figuring out any definitions, modifications or exceptions that may apply if not made clear in the instructions. Therefore, for example, the Board agrees that the plain meaning of the phrase “if any” qualifies the term “dependent” indicating that maybe there might not be a dependent. However, in order to know how the term “dependent” is qualified, the Veteran must look to VA laws and regulations as those are the rules VA must follow. Although the Board understands the Veteran’s arguments and his position, the law requires the inclusion of a dependent spouse’s income and net worth in the calculation of a Veteran’s entitlement to nonservice-connected pension benefits so long as the two live together. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. However, the law and the facts are clear in this case. The Veteran has reported, and his spouse has confirmed, that they live together. Therefore, according to VA law, his spouse is a dependent and her income and net worth must be counted in determining the Veteran’s annual income. However, her unreimbursed medical expenses may also be counted to offset her income as well. Unfortunately, to date, the Veteran has only provided his income, net worth and medical expenses information despite being asked to provide such information multiple times by the RO and having previously been told by the Board that he needed to provide his spouse’s information. He has been given sufficient opportunity to provide such information. As he has not provided the information necessary to verify his entitlement to non-service-connected disability pension benefits, his claim must be denied as a matter of law. In summary, based on the available evidence, the provisions of the statutes and regulations are dispositive in this matter. As the Veteran has not provided the necessary information required to verify his eligibility for VA death benefits, the appellant’s claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow