Citation Nr: 20045149 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 10-41 231 DATE: July 7, 2020 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The record does not reflect that the Veteran meets the income requirements for nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 1502, 1521, 1522 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.274, 3.275 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to July 1974. This matter comes to the Board of Veterans’ Appeals (Board) from a January 2010 rating decision which, in pertinent part, denied entitlement to nonservice-connected pension benefits. In July 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the transcript is of record. In September 2015, the Board remanded the matter for further development, to include obtaining net worth and employment information. Entitlement to nonservice-connected pension benefits. The Veteran contends that he is entitled to nonservice-connected pension benefits. Basic entitlement to an improved monthly pension exists if a Veteran (1) served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. § 1521(j)); (2) meets the net worth requirements under 38 C.F.R. § 3.274; (3) does not have an annual income in excess of the applicable maximum annual pension rate; (4) and is age 65 or older or is permanently and totally disabled from nonservice-connected disability not due to the Veteran’s own willful misconduct. 38 C.F.R. § 3.3(a)(3). The Veteran meets the first requirement of service in the active military during a period of war as the Veteran served on active duty from August 1972 to July 1974, during the Vietnam era. The Veteran filed this claim for nonservice-connected pension in March 2009. In November 2018, and during the pendency of the appeal, the Veteran turned 65. By way of history, in a March 2009 VA Form 21-527 (Income-Net Worth and Employment Statement), the Veteran reported that he last worked in November 2008 and an October 2009 VA examination report noted that the Veteran stopped working in November 2008 due to a family issue. He reported no income or net worth other than pension benefits of $180.47 per month. VA treatment records reflect employment after this date and in July 2015, the Veteran testified at a Board hearing that he was employed, but had missed nine days of work in the last 90 days. In September 2015, the Board noted that the Veteran had been employed periodically during the appeal period and remanded the appeal so that he could clarify his employment status beginning in December 2007. In a June 2016 VA Form 21-4138 (Statement in Support of Claim), the Veteran indicated he last worked in July 2015, and that his monthly income consisted of $1,069 in Social Security benefits and $180.47 from a pension. VA treatment records note that the Veteran was admitted to a residential treatment program in October 2016 and thereafter obtained employment. In May 2017, the RO requested the Veteran complete a net worth statement for each year he was claiming nonservice-connected pension benefits from 2007 to present. In May 2017, the Veteran submitted VA Form 21P-0516-1 (Improved Pension Eligibility Verification Report (Veteran with No Children)) showing a monthly income of $1,073.10 in Social Security benefits, $180.47 in pension benefits, and employment income of $2,460 from April 2017 to May 2017, with $2,739.89 in interest-bearing bank accounts. However, VA treatment records dated in May, October, and December 2017 show that the Veteran was unemployed, but actively seeking employment. In a May 2019 VA Form 21P-527EZ (Application for Veterans Pension), the Veteran reported that he was last employed in May 2018 and had a monthly income of $1134.60 in Social Security benefits and $180 in pension benefits. Prior to May 2019 The Board finds the second element, requiring that the Veteran be over 65 or permanently and totally disabled, is moot as the file does not support a finding that the Veteran meets the net worth requirements under 38 C.F.R. §§ 3.274 and 3.275 and that the Veteran’s annual income does not exceed the applicable maximum annual pension rate (MAPR), the third element required for entitlement to nonservice-connected pension. 38 U.S.C. §§ 1502, 1521, 1522; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. Specifically, the record does not include an account of the Veteran’s annual income or net worth for the appeal period prior to May 2019. The Veteran was initially notified that VA needed records of his income and expenses when the initial VCAA notification was sent in April 2009. The Veteran did not provide any such accounting, other than as noted above. In a September 2015 Board decision, the Board indicated that the Veteran’s net worth and employment history were still uncertain and remanded the matter to attempt to determine the Veteran’s net worth, income, and employment history over the appeal period. The September 2015 remand required the RO to request a detailed summary of household income and expenses, including medical expenses, as well as Improved Pension Eligibility Verification Reports. Letters were mailed to the Veteran in June 2016, January 2017, February 2017, and May 2017 requesting this information for each year from December 2007. To date, the Veteran has not responded to this request other than to provide incomplete information for 2017. The Board notes that even if it were to consider the information provided for 2017, the Veteran reported income of $1,073.10 per month in Social Security benefits, $180.47 per month in pension benefits, and gross wages for April and May 2017 of $2,460. He did not report any unreimbursed countable medical expenses; thus, his yearly countable income of $17,503 would exceed the applicable MAPR of $12,907 for a Veteran with no dependents, and he would not be entitled to nonservice-connected pension benefits. See Veterans Benefits Administration, Veteran’s Pension Rate Table – Effective 12/1/16 (https://www.benefits.va.gov/PENSION/rates_veteran_pen16.asp). Based on the foregoing, the Board finds the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Because the Veteran’s reporting of his employment history is unclear and incomplete, no determination can be made regarding his income prior to May 2019. Therefore, the Veteran’s claim for nonservice-connected pension benefits must be denied.   From May 2019 From May 2019, the Veteran was at least 65 years of age and no longer must prove permanent and total disability. Thus, the remaining issue is whether, from May 2019, he meets the net worth requirements under § 3.274 and his income is not in excess of the applicable MAPR specified in 38 C.F.R. § 3.23. See 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3(a). The Board finds that entitlement to nonservice-connected pension benefits is not warranted from May 2019 because the preponderance of evidence establishes the countable annual income of the Veteran has exceeded the MAPR for a veteran with no dependents. Countable income and excludable expenses are based on 12-month annualization periods. 38 C.F.R. §§ 3.271, 3.272. Annualization periods have two types, the initial annualization period and calendar years. After the initial year, countable income is generally based on the calendar year. When the initial annualization period and the first calendar year beginning after the initial award overlap, the greater benefit is awarded. 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 Veteran 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 MAPR by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). In a January 2020 supplemental statement of the case (SSOC), the RO determined that the Veteran’s countable income exceeded the MAPR amount for a Veteran with no dependents. Although the Veteran reported in a May 2019 VA Form 21P-527EZ (Application for Veterans Pension), that he had a monthly income of $1,134.60 in Social Security benefits and $180 in pension benefits, a May 2019 letter from the Veteran’s pension shows a monthly benefit amount of $180.47 and a July 2019 Social Security inquiry shows a monthly benefit payment of $1,134.50, resulting in a yearly income of $15,780. Regarding medical expenses, the evidence of record reflects that the Veteran had unreimbursed Medicare Part B premiums totaling $1,626. The Veteran did not report any other unreimbursed medical expenses. Unreimbursed medical expenses in excess of five percent of the applicable MAPR are used to reduce countable income. The MAPR effective December 1, 2018 for a Veteran with no dependents is $13,535, and five percent of that amount is $676. See Veterans Benefits Administration, Veteran’s Pension Rate Table – Effective 12/1/18 (https://www.benefits.va.gov/PENSION/rates_veteran_pen18.asp). Therefore, in calculating the Veteran’s countable income, only unreimbursed medical expenses in excess of $676 can be considered. In this case, the record reflects that the Veteran had unreimbursed medical expenses of $1,626. Deducting $676 from $1,626 results in $950 in countable unreimbursed medical expenses. Deducting the amount of countable unreimbursed medical expenses of $950 from the Veteran’s income of $15,780 results in countable income of $14,830, which exceeds the applicable MAPR of $13,535 for a veteran with no dependents. The Board notes that after a cost-of-living increase, the MAPR effective December 1, 2019 for a Veteran with no dependents is $13,752, and five percent of that amount is $687. See Veterans Benefits Administration, VA pension rates for Veterans (https://www.va.gov/pension/veterans-pension-rates/). While this results in countable unreimbursed medical expenses of $939 and a countable income of $14,841, this amount still exceeds the applicable MAPR of $13,752 for a Veteran with no dependents. In light of the foregoing, the appellant is not entitled to payment of nonservice-connected pension benefits from May 2019, and his claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.