Citation Nr: 19136335 Decision Date: 05/13/19 Archive Date: 05/10/19 DOCKET NO. 16-08 056 DATE: May 13, 2019 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The Veteran failed to comply with the Department of Veteran’s Affairs’ (VA) request to submit the required information to show entitlement to nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for entitlement to payment of nonservice-connected pension benefits based on the Veteran’s countable income have not been satisfied. 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 February 1966 to November 1968, to include service in the Republic of Vietnam. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Basic entitlement to pension exists if, among other things, the claimant’s income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 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 during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. 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.” 38 C.F.R. § 3.272(g)(1)(iii). In order 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). In essence, VA subtracts the total amount of countable income in one year, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly pension benefit. When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the change in income began. 38 C.F.R. § 3.273(b)(2). Recipients of pension income are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C. §§ 1521; 38 C.F.R. § 3.277. The Veteran applied for VA pension benefits in August 2013. On a September 2013 application for pension the Veteran reported he receives $1,163 per month in social security income. He did not report unreimbursed medical expenses during the period on appeal. The record reflects in October 2013 the Veteran was informed his claim was denied based on excessive countable income for a Veteran with no dependents because he did not provide the required information to add his spouse as a dependent. As VA did not receive the requested information from the Veteran he was considered a Veteran with no dependents. Beginning December 1, 2012, the relevant MAPR for a Veteran without a dependent was $12,465. See https://www.benefits.va.gov/pension/current_rates_veteran_pen.asp (accessed May 2, 2019). The Veteran’s income was $15,204 (SSA benefits of $1,267 per month ). Subtracting $623 (five percent of the MAPR) from the reported medical expenses of $1,248 (Supplemental Medical Insurance of $104 per month) equals $625 which may be subtracted from his yearly income. Thus, the Veteran’s countable income for this period was $14,579, which exceeds the MAPR. In the January 2016 Statement of the Case (SOC) VA explained the Veteran failed to report the number of previous marriages his spouse had or her income or net worth information as requested on VA Form 21-0516 Improved Pension Eligibility Verification Report and form 21-8416 Medical Expense Reports. In determining claims of entitlement to pension, “[i]f VA requests that a claimant or beneficiary submit an eligibility verification report but he or she fails to do so within 60 days of the date of the VA request, the Secretary shall suspend the award or disallow the claim.” 38 C.F.R. § 3.277(d). 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 record reflects the Veteran has been given notice and the opportunity to submit such and has failed to provide the required information. The Veteran has only provided his income, net worth and medical expenses information despite being asked to provide such information by the Agency of Original jurisdiction (AOJ). (Continued on next page). In summary, as the Veteran has not provided the information necessary to verify his entitlement to nonservice-connected pension benefits, his claim must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.