Citation Nr: 18106963 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 12-24 001A DATE: June 1, 2018 ORDER Whether the Veteran’s countable income exceeds the maximum annual rate permissible for receipt of non-service connected benefits is denied. FINDING OF FACT The Veteran’s countable annual income exceeds the maximum annual pension rate limit set by law for payment of VA nonservice-connected pension benefits. CONCLUSION OF LAW The Veteran’s countable annual income exceeds the prescribed limit for entitlement to nonservice-connected pension benefits. 38 U.S.C. §§ 1503, 1521 (2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1965 to June 1969. He also had service in the Air National Guard of Pennsylvania. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal was before the Board in May 2017 at which time it was remanded for additional evidentiary development. A review of the record shows that the RO has complied with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 1. Whether the Veteran’s countable income exceeds the maximum annual rate permissible for receipt of non-service connected benefits 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. §§ 1503, 1521 (2012); 38 C.F.R. §§ 3.3, 3.23 (2017). Payments of VA nonservice-connected pension benefits are made at the specified maximum annual rate, reduced on a dollar-for-dollar basis by annualized countable family income. 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 (2017). 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 regular maximum annual rate payable to a single veteran (excluding increased pension because of the need for aid and attendance). 38 C.F.R. § 3.272 (2017). The rates of pension are published in tabular form in Appendix B of the Veterans Benefits Administration Manual M21-1, and are given the same force and effect as if published in the Code of Federal Regulations. The maximum annual pension rate is adjusted from year to year. 38 C.F.R. § 3.21 (2017). Effective December 1, 2009, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was $23,396. Effective December 1, 2011, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was increased to $24,239. Effective December 1, 2012, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was increased to $24,642. Effective December 1, 2013, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was increased to $25,022. Effective December 1, 2014, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was increased to $25,448. Effective December 1, 2016, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was $25,525. See M21-1, Part I, Appendix B. Factual Background The available record shows that on June 24, 2011, the Veteran submitted an application for VA pension benefits. At that time, he reported that his monthly Social Security income was $1,583 and his wife’s monthly Social Security income was $622. The annual countable income reported by the Veteran was $26,460. In the accompanying medical expense report, the Veteran reported that he paid $97.50 in Medicare per month. He also reported that he paid $118 per month for UPMC for private medical insurance. See January 2012 VA 21-0820 Report of General Information. Additionally, he paid $126.44 per month for prescriptions and $27.00 every 90 days for specific prescription. The Veteran documented that he paid $17 for a walking cane in March 2009, $40 for glasses in February 2010, $50 for an emergency room visit in April 2011, $38 for vitamin D in April 2011, $30 for an emergency room visit in March 2011, and $30 for an emergency room visit in January 2011. Pursuant to a Social Security Administration (SSA) inquiry response received in December 2011, it was reported that effective December 2010, the Veteran’s monthly Social Security income was $1,679.50 and effective December 2011, his monthly Social Security income was $1,739.90. With regards to the Veteran’s wife, SSA reported that from December 2010, her Social Security income was $230.50 and from December 2011, her Social Security income was $238.90. According to a January 2012 VA 21-0820 Report of General Information, the appellant’s wife reported that the Veteran also received $1,278.70 per month from the Laborers Combine Pension. In May 2017, the Board remanded the claim to allow the Veteran to provide a detailed summary of his current household income and expenses, to include medical expenses for the years 2012 to 2016. Pursuant to the Board’s remand instructions, in July 2017, the Veteran submitted Eligibility Verification Reports documenting income from June 2011 to July 2017. Information regarding medical expenses or household expenses was not provided. The appellant reported that from June 24, 2011 to December 31, 2011, his gross income from Social Security was $10,075 and his wife’s gross income from Social Security was $2,000. He reported that his gross employment wages from June 24, 2011 to December 31, 2011 was $7,958.20. His reported gross annual income from June 2011 to December 31, 2011 was $20,033.30. The Veteran reported that his gross income from Social Security in 2012 was $20,966.80 and his wife’s gross income from Social Security was $8,660.90. His reported gross employment wages from January 1, 2012 to December 31, 2012 was $15,452.40. The appellant’s reported gross annual income was $45,079.90. He reported that in 2013, his gross income from Social Security was $21,370.00 and his wife’s Social Security income was $9,142.90. He reported that his gross employment wages from January 1, 2013 to December 31, 2013 was $25,452.90. The reported gross annual was $55,965.80. He reported that in 2014, his gross income from Social Security was $21,682.80 and his wife’s gross income from Social Security was $9,262.80. His gross employment wages from January 1, 2014 to December 31, 2014 was $15,450.11. His reported gross annual income was $ 46,395. 71. He reported that in 2015, his gross income from Social Security was $22,054.80 and his wife’s gross income from Social Security was $9,430. 80. His reported gross employment wages from January 1, 2015 to December 31, 2015 was $15,455.40. His reported gross annual income was $46.941.50. He reported that in 2016, his gross income from Social Security was $22,054.80 and his wife’s gross income from Social Security was $9,430.80. His reported gross employment wages from January 1, 2016 to December 31, 2016 was $15,452.40. His reported gross annual income was $46, 937.80. Lastly, the Veteran reported that from January 1, 2017 to the present (which the Board will construe as January 14, 2017, the date the Eligibility Verification Report was signed by the Veteran), his gross employment wages was $10,398 and his wife’ gross employment wages were $4,086. He did not report any income for the SSA. His reported gross income from January 1, 2017 to January 14, 2017 was $14,484, which calculates to be $178,176 per year. Analysis After a review of the evidence, the Board finds that the Veteran’s countable income exceeds the maximum annual rate permissible for receipt of non-service connected benefits. As noted herein, in the Veteran’s June 24, 2011 application for VA pension benefits, he reported that his monthly Social Security income was $1,583 and his wife’s monthly Social Security income was $622. His reported annual income was $26,460. However, in correspondence received in December 2011, the SSA reported that the Veteran’s SSA income as of December 2010 was $1,679.50 per month and $1,739.90, effective December 2011. His wife’s social security income was $230.50 from December 2010 and $238.90 from December 2011. The Board finds that the information regarding Social Security income from the SSA is more accurate and will therefore use the income reported by the SSA to calculate the Veteran’s and his wife’s Social Security income. Thus, the Board finds that the Veteran’s Social Security income in 2011 was $20,214.40 and his wife’s Social Security income was $2,774.40. Their combined Social Security income in 2011 was $22,988.40. Additionally, in the Report of General Information, the Veteran’s wife reported that the Veteran also received monthly income in the amount of $1,278.70 per month from the Laborers Combine Pension which computes to $15,344.40 per year. Thus, the Veteran’s annual income for 2011 was $38,332.80, which exceeds the allowable income for an award of nonservice-connected pension. Notwithstanding, the Board observes that non-reimbursed medical expenses can reduce income. Accordingly, the Board has considered the medical expenses reported by the Veteran. As detailed herein, the appellant stated that he paid $97.50 per month in Medicare ($1,170 per year); $118 per month for private medical insurance ($1,416 per year); and $126.44 per month for prescriptions ($1,517.28 per year). He also stated that he paid $27 every 90 days for a specific prescription ($108 per year). The Board observes that the Veteran reported additional medical expenses for glasses, a walking cane, and emergency room visits, which were incurred from March 2009 to April 2011. As the expenses were incurred prior to the appeal period and do not otherwise appear to be continued monthly expenses, the medical expenses will not be considered as non-reimbursed medical expenses. Thus, the non-reimbursed medical expenses are $4,211.28. In 2011, the maximum annual pension rate (MAPR) for a Veteran with one dependent was $15,493. To be deducted, medical expenses must exceed 5% of the MAPR ($744). As detailed above, the Veteran’s medical expenses exceed 5% of the MARP. Thus, subtracting $744 from the Veteran’s total medical expenses of $4,211.28 yields a total of $3,467.28 for non-reimbursed medical. When non-reimbursed medical expenses are deducted from the Veteran’s total annual income of $38,332.80, the Veteran’s annual income is calculated to be $34,865.52. Thus, even when considering the appellant’s non-reimbursable medical expenses, his income still exceeds the allowable income for an award of nonservice-connected pension. The Board also finds that the Veteran’s countable income exceeds the maximum annual rate permissible for receipt of non-service connected pension benefits from 2012 to 2017. As detailed above, in 2012, the Veteran’s gross income was $45,049.90. At that time, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was to $24,239. It was increased to $24,642, effective December 1, 2012. As detailed above, the Veteran did not report any non-reimbursed medical expenses. Thus, the appellant’s income exceeded the maximum annual pension rate for VA nonservice-connected pension benefits. In 2013, the Veteran reported that his income was $55,965.80. At that time, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was $24,642 and was increased to $25,022, effective December 1, 2013. Non-reimbursable medical expenses were not reported. As such, the Veteran’s income exceeded the maximum annual pension rate for nonservice-connected pension benefits. In 2014, his income was $46,395.41. The maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was $25,022 and was increased to $25,448, effective December 1, 2014. He did not identify any expenses which could be deducted from his income. Thus, the Veteran’s annual income exceeded the pertinent monthly annul pension rate. The Veteran reported that in 2015, his income was $46,937.80. At that time, the maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was $25,448. As, such, the Veteran’s income exceeded the monthly annual pension rate. The Veteran also indicated that his annual income in 2016 was $46,937.80. The maximum annual pension rate for a Veteran with one dependent at the aid and attendance rate was $25,448 and was increased to $25,525, effective December 1, 2016. The Veteran did not report any non-reimbursable medical expenses that could be deducted from his annual income. Thus, the Veteran’s income exceeds the monthly annual pension rate. Lastly, in the Veteran reported that from January 1, 2017 to the present, which the Board has construed as January 14, 2017, the date the Eligibility Verification Report was signed, his income was $178,176, which again exceeds the monthly annual pension rate. In sum, based on the information available, the Veteran’s countable income has exceeded the maximum annual pension rate throughout the appeal period, thereby rendering him ineligible for nonservice-connected pension. The appellant is advised that, if there is a change in his financial status in the future, he may reapply for pension at that time. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel