Citation Nr: 21000320 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-24 502 DATE: January 5, 2021 ORDER Termination of the Veteran's nonservice-connected disability pension benefits effective July 1, 2009, was proper; the request for reinstatement is denied. FINDING OF FACT The Veteran’s income for year 2009/2010 exceeded VA’s maximum annual pension limit for a veteran with no dependents. CONCLUSION OF LAW Termination of nonservice-connected pension benefits effective July 1, 2009, due to excessive income was proper. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to December 1992. This matter comes before the Board of Veterans’ appeals (Board) on appeal from a June 2015 decision. The Veteran presented testimony before the Board in March 2019. In July 2019, the Board remanded the matter for further development. In pertinent part, the Veteran applied for VA pension benefits on June 22, 2009. In a February 2010 decision, the RO awarded nonservice-connected pension benefits effective June 22, 2009, the date of claim. Pension was payable from July 1, 2009. In November 2014, the Veteran was notified that his pension benefits would be stopped effective July 1, 2009, because of unreported income for 2010 in the amount of $42,312.00, which among other sources, included $34,842.00, from the Civil Service Retirement System. The Veteran was notified that his retirement income was to be considered annual recurring income back to July 1, 2009, through the present unless he provided evidence to the contrary. In June 2015, his benefits were terminated effective July 1, 2009, because his countable income exceeded the maximum annual pension rate (MAPR) for a Veteran with no dependents. In terms of income, the RO listed $15.00 from the United States Postal Service, $20,460.00, per year from Civil Service Retirement, and $7,470.00, from Department of Labor. The RO noted that they received a statement from Civil Service showing that he received $1,705.00, per month or $20,460.00 per year. The Veteran maintains, through statements and testimony, that at the time of his original application for benefits he was not receiving retirement benefits and that he informed VA of income changes and was told they were inputted into the system. The Veteran does not dispute that he received, and continues to receive, monthly Civil Service retirement benefits. Instead, in his notice of disagreement, the Veteran maintains that he had a one-time severance payment of $34,842.00, which was not recurring income, in addition to his monthly amount. The matter was remanded in July 2019 for the Veteran to provide information regarding the date his retirement benefits were awarded, when they were first paid, the date and amount of any retroactive payment made upon the award of benefits, and the monthly benefits paid between 2009 and 2013. To date, the Veteran has not responded to the request for information. In this regard, the Board notes that the duty to assist is not a one-way street. A claimant cannot remain passive when he has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991). For the reasons that follow, the Board concludes that the termination of nonservice-connected pension benefits was proper. Pursuant to 38 U.S.C. § 1521 (a), nonservice-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his own willful misconduct. Entitlement exists if, among other things, the veteran’s income is not in excess of the applicable maximum allowable pension rate, and specified at 38 C.F.R. § 3.23, as changed periodically, and reported in the Federal Register. See 38 U.S.C. § 1521. The maximum rates for a veteran’s pension are reduced dollar for dollar by the amount of the countable annual income of a veteran, his spouse, and any dependent. 38 U.S.C. § 1521; 38 C.F.R. § 3.23 (d). 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) are to be included except for listed exclusions. 38 U.S.C. § 1503 (a); 38 C.F.R. §§ 3.271, 3.272. Income from the Social Security is not specifically excluded, and is, therefore, included as countable income. Medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, may be excluded from an individual’s income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272 (g)(1)(iii). Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); VA pension benefits; payments under Chapter 15 of Title 38, United States Code, including accrued pension benefits; reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner). 38 C.F.R. § 3.272. The Veteran’s original entitlement was based on his having no income and no unreimbursed medical expenses. As indicated above, subsequent income verification match information revealed the Veteran had unearned income for 2010 totalling $42,327.00, which includes employment income, unemployment benefits, and retirement benefits. Based on the unreported income information his benefits were recalculated and resulted in the retroactive termination of his entitlement from July 1, 2009, the onset of his award. The Board notes in connection with his request for waiver of overpayment as result of the termination of benefits (not in appellate status), the Veteran submitted Statements of Annuity paid for the years 2010 ($34,842.00), 2011 ($24,685.00), 2012 ($19,488), and 2013 ($19,824). Verification of the amount of the Veteran’s annuity (retirement benefits) from the Office of Personnel Management (OPM) revealed that the annuity commencement date was April 19, 2009. As of December 1, 2014, his monthly retirement benefits were $1,705.00. The maximum allowable pension rate for a veteran with no dependents effective December 1, 2008, and December 1, 2009, was $11,830.00. This rate continued until it was changed, effective December 1, 2012, to $12,465.00. As noted above, the Veteran maintains the $34,842.00, originally reported from OPM was a one-time retroactive payment of benefits. This has not been supported by the evidence of record. In fact, the evidence of record reveals the Veteran has received monthly Civil Service retirement benefits from April 2009 to the present. (Continued on the next page)   The Veteran has not submitted any evidence to refute his receipt of $42,312.00, in unreported income for 2010. As his claim was submitted in June 2009 and payments were granted effective July 1, 2009, even irregular income for pension purposes will be amount received or anticipated during a 12 month annualization period. The Veteran has not submitted information to show the specific amounts of recurring income from his Civil Service retirement from 2009 to 2013; rather, the file only contains annual annuity statements. Even if the Board afforded the Veteran all reasonable doubt and simply used the minimum monthly retirement benefits of $1,624.00, reported for the year 2012, his income of $19,488.00 ($1,624 x 12) with no exclusions from income, as he did not report any medical expenses, would still be in excess of the MAPR. See 2012 Statement of Annuity Paid. The Veteran’s income was above the allowable limit as of July 1, 2009. Thus, the Board concludes that the termination of nonservice-connected pension benefits effective July 1, 2009, was proper. The preponderance of the evidence is against the Veteran’s claim and it is denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.