Citation Nr: 19106942 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-52 412 DATE: January 29, 2019 ORDER Nonservice-connected disability pension benefits in excess of $178.00 a month prior to December 1, 2017, in excess of $183.00 a month from December 1, 2017 to November 30, 2018, and in excess of $188.00 a month thereafter, is denied. REMANDED Entitlement to special monthly pension on the basis of the need for regular aid and attendance or housebound status is remanded. FINDINGS OF FACT 1. The Veteran’s yearly countable annual income prior to December 1, 2017 was $10,764.00. 2. The Veteran’s yearly countable annual income from December 1, 2017 to November 30, 2017 was $10,968.00. 3. The Veteran’s yearly countable annual income as of December 1, 2018 was $11,268.00. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected disability pension benefits in excess of $178.00 a month prior to December 1, 2017, in excess of $183.00 a month from December 1, 2017 to November 30, 2018, and in excess of $188.00 a month thereafter, are not met. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1953 to April 1956. Nonservice-Connected Pension Benefits Entitlement to nonservice-connected disability pension benefits in excess of $178.00 a month prior to December 1, 2017, in excess of $183.00 a month from December 1, 2017 to November 30, 2018, and in excess of $188.00 a month thereafter The Veteran asserts that he is entitled to a higher monthly rate for his nonservice-connected disability pension. The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C. §§ 1502, 1521. Basic entitlement exists if, among other things, the veteran’s income is not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a). The maximum rates for improved pension shall be reduced by the amount of the countable annual income of the veteran. 38 U.S.C § 1521; 38 C.F.R. § 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a). Medical expenses in excess of five percent of the maximum annual pension rate (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) may be excluded from an individual’s income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(2)(iii). As of December 1, 2016, the maximum annual pension rate for a single veteran with no dependent was $12,907.00. Effective December 1, 2017, the maximum annual pension rate for a single veteran with no dependent was $13,166.00. Moreover, as of December 1, 2018, the maximum annual pension rate for a single veteran with no dependent was $13,535.00. Veterans Pension Rate Table. Additionally, to be deducted, medical expenses must exceed 5 percent of the maximum annual pension rate, or $645.00 prior to December 1, 2017, $659.00 from December 1, 2017 to November 30, 2017, and $676.00 as of December 1, 2018. Based upon the evidence of record, the Board determines that the Veteran is not entitled to a higher monthly total for his nonservice-connected disability pension for any period on appeal. In this case, for the period prior to December 1, 2017, the Veteran was in receipt of $10,764.00 in annual Social Security Administration (SSA) benefits. His medical expenses included $3.50 relating to transportation costs for his medical appointments. However, as his medical expenses are less than 5 percent of the maximum annual pension rate, or $645.00, these expenses do not otherwise offset his total income. Therefore, subtracting the Veteran’s total countable income of $10,764.00 from the maximum annual pension rate of $12,907.00, he is entitled to a monthly pension award of $178.00. For the period from December 1, 2017 to November 30, 2017, the Veteran’s total countable income was $10,968.00 – which was due entirely to his annual SSA benefits. As such, subtracting the Veteran’s total countable income of $10,968.00 from the maximum annual pension rate of $13,166.00, he is entitled to a monthly pension award of $183.00. As of December 1, 2018, the Veteran’s total countable income was $11,268.00 – which was due entirely to his annual SSA benefits. Therefore, subtracting the Veteran’s total countable income of $11,268.00 from the maximum annual pension rate of $13,535.00, he is entitled to a monthly pension award of $188.00. As a result, the Veteran in not entitled to a higher monthly pension for any period on appeal. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In any event, the Board finds that the preponderance of the evidence is against the claim for the purposes of establishing improved pension benefits for the entire period on appeal. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to special monthly pension on the basis of the need for regular aid and attendance or housebound status is remanded. In support of his claim for an increase in nonservice-connected pension benefits, the Veteran has asserted that he has a need for aid and attendance or is housebound. However, the record is insufficient for the Board to grant the issue of need for aid and attendance or housebound status. Therefore, given that the Board has jurisdiction over this derivate claim that was raised by the record, the RO should be given the opportunity to fully develop this claim in the first instance. See generally Rice v. Shinseki, 22 Vet. App. 447 (2009); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).   The matter is REMANDED for the following action: 1. Obtain any and all treatment records from any VA medical facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. After completing the actions detailed above, perform any necessary development, including a VA examination, and adjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before returning the matter to the Board for further appellate review. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel