Citation Nr: 20006907 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-45 757 DATE: January 28, 2020 ORDER Nonservice-connected pension benefits were correctly adjusted from January1, 2014, to June 1, 2017, and the appeal is denied. FINDING OF FACT The Veteran was paid pension benefits at the annual rate less countable income from January 1, 2014, to June 1, 2017. CONCLUSION OF LAW The criteria for an increased rate of nonservice-connected pension benefits from January1, 2014, to June 1, 2017, have not been met. 38 U.S.C. §§ 1503, 1521 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION In July 2019, the Board of Veterans’ Appeals (Board) determined that nonservice-connected pension benefits were correctly adjusted from December 1, 2011, to December 31, 2013. The issue of whether nonservice-connected pension benefits were correctly adjusted from January 1, 2014, was remanded for further development. The Board has limited the time period on appeal from January 1, 2014, until June 1, 2017, when benefits were terminated. The issue regarding termination of pension benefits is being separately addressed by the Agency of Original Jurisdiction (AOJ). 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 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 Veteran. 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 included as countable income as it is not specifically excluded under 38 C.F.R. § 3.272. 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 surviving spouse 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 death 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 increased income began. 38 C.F.R. § 3.273 (b)(2). During the relevant time period, the Veteran was single with no dependents. He was in receipt of a pension of $311 per month from January 1, 2014, $316 per month from December 1, 2014, $317 from December 1, 2016, and $349 per month from February 1, 2017. His benefits were terminated June 1, 2017, for failure to provide fully complete marital history information for himself and his spouse. His benefits were stopped the first of the month after his marriage. During the relevant period, the Veteran was in receipt of SSA income of $743 per month from December 1, 2013, $756 per month from December1, 2014, $758 per month from December 1, 2016, and $773 per month from December 1, 2017. The Veteran’s Medicare premiums were paid by the state. To date, after multiple attempts to obtain the information, the Veteran has failed to provide receipts for unreimbursed medical expenses for January 1, 2014, to December 1, 2016, to include $78,050.00, in claimed expenses for the 2014 calendar year. The income calculations relevant to this appeal are as follows: The Veteran’s income from January 1, 2014 was calculated as $8,916 ($743 per month times 12 months). The MAPR of $12,652 less the Veteran’s income of $8,916 is $3,736. On a monthly basis, this is $311. From December 1, 2014, the Veteran’s income was calculated as $9,072 ($756 per month times 12 months). The MAPR rose to $12,868. Thus, the resulting difference was $3,796, or $316 per month. From December 1, 2016, the Veteran’s income was calculated as $9,096 ($758 per month times 12 months). The MAPR was $12, 907. Thus, the resulting difference was $3,811 or $317 per month. From February 1, 2017, the Veteran’s income was calculated as $9,096 ($758 per month times 12 months). He had family medical expenses totally $1,028, reducing his countable income to $8,713. The MAPR was 12,907. The resulting difference was $4,194 or $349 per month. Given the above, the Board finds that the rate of nonservice-connected pension benefits was correctly calculated from January1, 2014, to June 1, 2017. As such, the claim for an increased rate pension must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.