Citation Nr: 20045697 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 19-05 305 DATE: July 9, 2020 ORDER Nonservice-connected pension benefits are denied. FINDING OF FACT The preponderance of evidence establishes the Veteran’s countable annual income has exceeded the maximum annual pension rate (MAPR) for a veteran with no dependents. CONCLUSION OF LAW The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 1503, 1521 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.32, 3.271, 3.272 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to December 1998 and from October 2001 to May 2002. This matter comes to the Board of Veterans’ Appeals (Board) from a November 2018 decision that denied nonservice-connected pension benefits on the basis that the Veteran’s income exceeded the maximum annual pension rate. In October 2019, the Board remanded the matter for further development, to include requesting additional information on the Veteran’s income, net worth, and medical expenses. The Veteran contends that he is entitled to nonservice-connected pension benefits. A veteran who meets wartime service requirements and who is permanently and totally disabled due to disability not the result of willful misconduct is entitled to a rate of pension set by law, reduced by the amount of his countable income. 38 U.S.C. § 1521; 38 C.F.R. § 3.23. Countable income consists of payments of any kind from any source received during a 12-month annualization period (e.g., a year), unless specifically excluded. 38 C.F.R. § 3.271. At issue is whether the countable annual income of the Veteran exceeds the applicable maximum annual pension rate (MAPR) limit set by law. The Board finds that entitlement to nonservice-connected pension benefits is not warranted because the preponderance of evidence establishes the Veteran’s countable annual income has exceeded the MAPR for a veteran with no dependents throughout the appeal period. Basic entitlement to pension exists if, among other things, the claimant’s income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 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 is available online at Veterans Benefits Administration, Veteran’s Pension Rates (https://www.va.gov/pension/veterans-pension-rates/). The MAPR shall be reduced by the amount of the Veteran’s countable annual income. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). 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. VA allows a mileage allowance in computation of a veteran’s unreimbursed medical expenses for pension purposes. The provision of 38 C.F.R. § 70.10(a)(4) authorizes beneficiary travel payments for veterans receiving pension benefits under 38 U.S.C. § 1521 who traveled to or from a VA facility or VA-authorized health care facility for examination, treatment, or care. The reimbursement rate for travel mileage was $0.415 per mile, effective November 17, 2008. See Increase in Mileage Reimbursement Rate and Deductible Amounts in the Beneficiary Travel Program, 73 Fed. Reg. 68498 (Nov. 18, 2008). To date, this reimbursement amount remains the same. 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 March 2020 supplemental statement of the case (SSOC), the RO continued to find that the Veteran’s countable income could not be reduced by his medical expenses. As is pertinent for this case, for the initial annualization period, income will be counted from the date of the claim, here July 20, 2018, through the end of the month that is twelve months after that day, or July 31, 2019. On a July 2018 VA Form 21-526 (Veteran’s Application for Compensation and/or Pension), the Veteran reported $1,190 per month in Social Security Administration (SSA) income, $50 in a bank account, and that he had paid $5000 in medical expenses in January 2017. In an October 2018 VA Form 21P-527EZ (Application for Pension), the Veteran reported $1,190 per month in SSA income, that he had $13,044 in expected income over the next 12 months , and that he paid $792 in 2014 to his doctors, $3000 in 2017 to the hospital, and $7,488 to Medicare in October 2018. In October 2018, the Veteran submitted a Medicare claim log showing amounts billed and approved through Medicare; however, these receipts do not show the amounts the Veteran paid, if any. The Veteran also submitted correspondence indicating mileage and copays to unspecified doctors, prescription copays, and Medicare premiums from October 2017 through September 2018, but did not specify the dates these were paid. In November 2018, the RO denied the Veteran’s claim for nonservice-connected pension benefits, noting that his annual income exceeded the pension limit of $13,166. The RO was unable to deduct any medical expenses as they were either paid before the Veteran’s claim or the Veteran did not provide an adequate breakdown of the remaining expenses. The RO indicated that the Veteran could provide the required information on the provided forms. On a February 2019 VA Form 9 (Appeal to the Board of Veterans’ Appeals), the Veteran indicated he had annual SSA income of $13,044, or $1,190 a month. In October 2019, the Board remanded the matter so that the Veteran could provide additional information pertaining to his medical expenses. On an October 2019 VA Form 21P-0516-1 (Improved Pension Eligibility Verification Report (Veteran with no Children)), the Veteran reported $1,224 in SSA income. On a separate VA Form 21P-8416 (Medical Expense Report), the Veteran reported expenses totaling $3,693.50 as reimbursed expenses, $14,400 in expected in-home attendant expenses on December 31, 2019, as well as payments of $204 and $90 on December 31, 2018, to West Hawaii Health and Kaloko Pain clinic, and expected payments of $1,876 and $128.65 for Medicare premiums and to CVS Pharmacy on December 31, 2019. This form, as well as the worksheet for in-home attendant expenses, was incomplete and unsigned. In a January 2020 letter, the RO requested additional information pertaining to the Veteran’s unreimbursed medical expenses. To date, no response has been received. The Board finds that to date, the Veteran has not provided the information required to reduce his countable income by unreimbursed medical expenses. Specifically, he has reported medical expenses paid prior to his July 2018 claim or he has not provided the required information on unreimbursed expenses paid since the date of his claim needed to reduce his countable income, to include payments made to Medicare, despite numerous requests to do so. Therefore, these expenses cannot be used to reduce the Veteran’s countable income. SSA records, however, do show that the Veteran paid Medicare premiums from December 2019, and, as discussed below, the Board has considered these payments. The evidence of record reflects that from August 1, 2018, the Veteran was in receipt of monthly SSA income of $1,190, or $14,280 yearly. Although the Veteran reported a yearly SSA income of $13,044, the Veteran has not provided documentation that he received less than the amount reported by SSA. Therefore, the Board has used the amount reported by SSA. The MAPR effective on December 1, 2017, for a Veteran with no dependents is $13,166. At the time the Veteran filed his claim, he had an initial annualized income of $14,280. As his initial annualized income exceeded the applicable MAPR of $13,166, it is a bar to the payment of pension benefits. The MAPR for a Veteran with no dependents increased to $13,535 on December 1, 2018. The Veteran’s SSA income increased to $1,224 from December 1, 2018, or $14,688 yearly. As his annualized income of $14,668 exceeded the applicable MAPR of $13,166, it is a bar to the payment of pension benefits. Finally, the MAPR for a Veteran with no dependents increased to $13,752 on December 1, 2019, and five percent of this amount is $687. The Veteran’s SSA income increased to $1,243.60 from December 2019, or $14,923 yearly. An SSA Inquiry reflects that the Veteran paid Medicare premiums of $144.60 per month, or $1,735 per year. In calculating the Veteran’s countable income, only unreimbursed medical expenses in excess of $687 can be considered. Deducting $687 from $1,735 results in $1,048 in countable unreimbursed medical expenses. Deducting the amount of countable unreimbursed medical expenses from the Veteran’s income of $14,923 results in countable income of $13,875. As his annualized income of $13,875 exceeded the applicable MAPR of $13,752, it is a bar to the payment of pension benefits. In sum, the Board finds the preponderance of the evidence establishes that for each year during the appeal period, the Veteran had a countable annual income which exceeded the applicable MAPR for a veteran with no dependents and is a bar to the (Continued on next page) payment of pension benefits. Therefore, the Veteran’s claim of nonservice-connected pension benefits is denied. James L. March 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.