Citation Nr: 19115551 Decision Date: 03/01/19 Archive Date: 03/01/19 DOCKET NO. 18-55 601 DATE: March 1, 2019 ORDER Entitlement to nonservice-connected pension benefits, to include special monthly pension for aid and attendance, is denied. FINDING OF FACT The Veteran has a net worth such that it would be reasonable that some part of the corpus of such estate be consumed for his maintenance CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits for aid and attendance have not been met. 38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.274, 3.275 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from April 1943 to March 1946. Entitlement to special monthly pension, based on aid and attendance. The Veteran claim, received in October 2017, is that nonservice connected pension for aid and attendance is warranted. A pension is payable to veterans of a period of war because of nonservice-connected disability or age. The basic entitlement exists if the veteran: (1) served in the active military, naval or air service for ninety (90) days or more during the period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct, or is 65 years of age or older; and (3) meets the specified net worth requirements and does not have an annual income in excess of the applicable maximum annual pension rate. 38 U.S.C. §§ 1513, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.274. Special monthly pension is warranted if a veteran is in need of regular aid and attendance. 38 U.S.C.A. § 1521(d). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). However, pension will be denied when the corpus of the estate is such that under all circumstances it is reasonable that some part of the corpus of such estate be consumed for the Veteran’s maintenance. 38 C.F.R. § 3.274. There is no specific dollar limitation on corpus of estate or net worth (as opposed to income) that bars an otherwise eligible claimant from receiving pension benefits under 38 C.F.R. § 3.274. However, as a general rule, VBA’s adjudication manual directs the rating agency to undertake development action to determine if net worth is excessive for any claimant who has an estate of $80,000 or greater. See M21-1, Part V.i.3 and V.iii.1. J.70. For claims received before October 18, 2018, the term net worth means all real and personal property owned by the claimant, except his dwelling and personal effects suitable to the claimant’s reasonable mode of life. The claimant’s primary residence is not part of his net worth. 38 C.F.R. § 3.275; M21-1, Part V.iii.1. J.1.e. At the time of the October 2017 claim, the Veteran’s primary residence was the Adult Living at Rosebrook nursing home. Thus, the Veteran’s former home, sold in March 2018 for $370,000 would be considered part of his net worth. The proceeds from that sale have since been put into a trust for the Veteran and is considered part of his net worth. Additionally, even without consideration of his prior residence’s worth or sale, at the time of his claim, he held bank and federal credit union accounts that could easily be converted to cash of worth well over $50,000 as part of his net worth. The Veteran also has a substantial income, including monthly Social Security Administration (SSA) benefits of over $1,200 and even higher monthly pension. The Board must also consider his expenses, which include the monthly cost of the nursing home of $2,795 in 2017 and $3,025 in 2018 and his prescription costs that he has indicated as less than $200 per year. The Veteran’s age must also be considered. As he has been over 95 through this appeal, he has a life expectancy of 3 years under the M21-1, Part V, iii, 1, J. The Board finds that even if it were to round up significantly to $4000 per year of expenses, over 3 years, the Veteran would be expected to expend $144,000. His income rounded down significantly for both SSA (1,200 x 36 months = $43,200) and pension ($1,400 x 36 months = $50,400) totaled $93,600 (and does not even include his variable dividends received). $144,000 expenses - $93,600 income = $50,400 (with all calculations made significantly in the Veteran’s favor). Such excess expenditure of $50,400 could be covered by the cash value of the Veteran’s bank and credit union accounts at the time of claim, without consideration of the significant amount received from the March 2018 house sale. The basic issue in evaluating net worth is to determine whether or not the claimant’s financial resources are sufficient to meet the claimant’s basic needs without assistance from VA. In the present case, the Board finds that it would be reasonable, under all the circumstances, for the claimant to consume some of his/her estate for maintenance. Both prior to and since his March 2018 sale of his house, the Veteran has had a sufficient net worth to live off his assets for a reasonable period of time without assistance from VA. VA’s pension program is intended to give beneficiaries a minimum level of financial security; it is not intended to protect substantial assets or build up the beneficiary’s estate for the benefit of heirs. Pension entitlement is based on need and that need does not exist if a claimant’s estate is of such size that he/she could use it for living expenses. If in the future the Veteran’s net worth is sufficiently depleted, he can reopen the pension claim. The Board notes that for new claims filed after October 2018, there are bright line net worth limits for pension entitlement that change yearly. M21-1, Part V, iii, 1, J. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful. However, at this time, the Veteran does not qualify for the requested benefits. Entitlement to nonservice-connected pension, including special monthly pension for aid and attendance, is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio