Citation Nr: 19151925 Decision Date: 07/03/19 Archive Date: 07/03/19 DOCKET NO. 16-24 502 DATE: July 3, 2019 REMANDED The issue of whether the Veteran's non-service-connected disability pension benefits were properly terminated as of July 1, 2009 is remanded. REASONS FOR REMAND The Veteran had honorable active military service from August 1981 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s June 2015 administrative decision that terminated the Veteran’s non-service-connected disability pension benefits effective July 1, 2009 due to excessive unreported income, which adjustment resulted in an overpayment in the amount of $75,353. In a June 2015 notice of disagreement, the Veteran disagreed with the termination of his non-service-connected disability pension benefits and this appeal ensued. The Veteran testified at a Board hearing held at the RO in Atlanta, Georgia, before the undersigned Veterans Law Judge in March 2019. A copy of the hearing transcript is associated with his claims file. At the March 2019 hearing, the Veteran and his representative raised the issue of waiver of the overpayment. The Board notes that the Veteran requested waiver of recovery of the overpayment in July 2015 correspondence, which request was denied by the Committee on Waivers and Compromises in a March 2016 decision. Notice of that decision was issued to the Veteran on March 17, 2016 along with his appeal rights. Unfortunately, he did not submit a notice of disagreement as to that decision within one year of its issuance and that decision is final. See 38 U.S.C. § 7105. Therefore, the Board has no jurisdiction to consider that issue. Finally, this appeal derives from an adjustment to the Veteran’s nonservice-connected pension benefits for income found through an income verification match (IVM) with the Internal Revenue Service (IRS). As such, the Board is restricted by confidentiality from discussing any of the Veteran’s federal tax information, which involves any specific information obtained through the IVM or information derived thereafter in verifying that information. Therefore, the Board will speak in generalities when discussing the Veteran’s confidential federal tax information. The issue of whether the Veteran's non-service-connected disability pension benefits were properly terminated as of July 1, 2009 is remanded. The Veteran has asserted that the termination of his non-service-connected disability pension benefits (hereafter “pension benefits”) was not proper because he attempted to verify his income with VA via telephone multiple times and that VA should have been able to verify his income and avoided the overpayment with his social security number through other government agencies that deal with granting benefits to those in need or for people who are in debt to the government. See June 2015 notice of disagreement and statement submitted with VA Form 9 received in August 2016. In June 2009, the Veteran filed a claim for entitlement to pension benefits, which claim was granted by the Phoenix RO in a December 2009 decision. However, the RO only determined the Veteran had basic eligibility to pension benefits and referred the matter to the Pension Management Center (PMC) for processing to determine the amount of benefits to which the Veteran was entitled. In a February 2010 letter, the PMC notified the Veteran that he was awarded pension benefits in the amount of $985 starting July 1, 2009 based on his report in his June 2009 application that he had no income. Neither of these two letters requested verification of the Veteran’s income. However, in October 2012, VA learned through an IVM with the IRS that the Veteran had both earned and unearned income in 2010 from three source payers that he had failed to report to VA, and the Veteran was sent a letter requesting that he verify this income. There is no record in the claims file to indicate that he responded to this letter. In November 2014, the PMC was contacted by VA’s Home Loan Guaranty office because the Veteran had filed for a home loan and had reported receiving an annuity in addition to his VA pension, but VA’s system was not showing the annuity. The Home Loan Guaranty office wanted to know if the annuity income would affect the amount of the Veteran’s pension payments. The Home Loan Guaranty office provided the PMC with a copy of a statement from the annuity payer showing that payments began in April 2009. The Veteran has reported that this annuity is for disability retirement and that the payment received in 2010 was a one-time severance payment from his previous employer and that no other money was received except for his disability retirement. See June 2015 notice of disagreement. In November 2014, the PMC sent the Veteran a letter proposing to terminate his pension benefits effective July 1, 2009 because of excessive income. In June 2015, the PMC notified that Veteran by letter that it was terminating his pension benefits effective July 1, 2009 because of excessive income At the time of the June 2015 decision terminating the Veteran’s pension benefits as of July 1, 2009, the only information available as to the start date of the annuity was the payer’s statement that the benefit began on April 1, 2009. However, the statement provided by the payer only showed the current benefit being received as of December 1, 2014. It did not show what happened in 2010. In his notice of disagreement, the Veteran stated that this annuity is for disability retirement and that the payment received in 2010 was a one-time severance payment from his previous employer and that no other money was received but his disability retirement. He also provided his tax form 1099 showing the amount reported to the IRS verifying this income. However, at the Board hearing in March 2019, the Veteran testified that he was not receiving this income at the time he filed his claim for pension benefits in June 2009 but rather that he was awarded what he called “civil service” income in April 2010 with back pay to April 2009. Therefore, the Veteran’s testimony has placed into controversy the information previously known. First, it indicates that the assumption by the PMC that the income began in April 2009 may not be correct. If the Veteran’s disability retirement was not awarded until sometime in 2010 and he was awarded a retropayment plus monthly benefits, then the effective date that the PMC assigned is likely too early and, if so, a later effective date would decrease the amount of the overpayment the Veteran has to pay back to VA. Therefore, it is important to ensure that VA has the correct date for when the annuity payments actually began, not when they became effective. That needs to be determined on remand. Furthermore, although the Veteran has reported that the 2010 payment was a lump sum payment from his employer, given his testimony, it would appear that it actually consists of both a retroactive payment for benefits from April 2009 to April 2010 and then monthly benefits the Veteran received for the remainder of 2010 (from May to December). However, there is no information as to this breakdown or what monthly benefits the Veteran received for 2011 through 2013 to determine his entitlement to continued pension benefits after 2010 when he would not have had the retroactive payment counted in his income. Such information is important in order to know if he had any entitlement that may reduce the overpayment and thus such information should be sought on remand. The matter is REMANDED for the following action: The PMC should contact both the Veteran and the payer of the Veteran’s disability retirement annuity (which the Veteran refers to as “civil service” income) and request that they provide verification of the following information relating to the disability retirement annuity that the Veteran was awarded effective as April 1, 2009 (the Veteran should specifically be advised the he must provide a written response along with supporting documentation): (a.) The date benefits were awarded. (b.) The date benefits were first paid. (c.) The date and amount of any retroactive payment made upon the award of benefits. (d.) The monthly benefit paid throughout 2009, 2010, 2011, 2012 and 2013. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow 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.