Citation Nr: 20022098 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-28 688A DATE: March 30, 2020 ORDER The termination of VA nonservice-connected pension was proper; and, entitlement to payment of pension benefits is denied. FINDING OF FACT The Veteran’s countable income exceeded applicable the maximum annual pension rate. CONCLUSION OF LAW The criteria for entitlement to payment of nonservice-connected benefits based on the Veteran’s countable income have not) been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION The matter comes on appeal from a May 2017 decision which terminated payment of nonservice-connected pension benefits from December 1, 2016 due to excessive income. The Veteran testified before the undersigned at a February 2020 Board video conference hearing. The hearing transcript is of record. Whether the termination of VA nonservice-connected pension was proper The Veteran contends that payment of at least a percentage of pension benefits is warranted. He describes financial hardship to the termination of his benefits. 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 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). Prior to reducing or terminating benefits by reason of information received concerning income, VA is required to comply with pertinent VA regulations concerning due process, including the creation of a proposal for the reduction or termination of benefits. An exception to this due process requirement is if the adverse action is based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary provided to VA in writing or orally, with knowledge or notice that such information would be used to calculate benefit amounts. 38 C.F.R. §§ 3.103 (b)(3), 3.105(h). VA benefits were terminated based on the Veteran’s receipt of SSA benefits. Confirmation of the receipt of such benefits was independently verified by the Veteran when he submitted a December 2016 letter from SSA identifying his monthly benefit award. In the May 2017 decision on appeal, the RO reinstated benefits from September 2016 following a period of incarceration and terminated benefits effective December 1, 2016 based on countable income. The Board finds, therefore, that due process requirements have been met with regard to the termination of benefits. In a June 2016 notice of disagreement, the Veteran appealed the May 2017 discontinuance of VA nonservice-connected pension. The evidence of record shows that the Veteran’s countable income exceeded the applicable the maximum annual pension rate. The MAPR for a veteran without dependents effective on December 1, 2016 was $12,868.00. A December 2016 SSA letter and April 2014 SSA Inquiry show that the Veteran was receiving SSA benefits at a rate of $1,424.00 a month. The Veteran has not identified any unreimbursed medical expenses to be deducted from countable income and confirmed in February 2020 Board hearing testimony that he did not have any medical expenses. In May 2019, the Veteran submitted bills and copies of checks showing payments made on rent, utilities, and other living expenses. Such expenses, however, are not countable to reduce income for pension purposes. The Board finds that the Veteran’s annualized income of $17,088.00 from his SSA benefits alone exceeded the MAPR of $12,868.00 and is a bar to the receipt of pension benefits. For these reasons, the Board finds that the termination of the Veteran’s nonservice-connected pension benefits was proper. While the Board is sympathetic to the Veteran’s financial situation, a review of the evidence shows that pension benefits are not payable from December 1, 2016 based on his countable income. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.