Citation Nr: 21066653 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-24 509 DATE: November 1, 2021 ORDER Entitlement to payment of higher amounts of non-service-connected pension benefits from December 1, 2016 is denied. FINDING OF FACT The Veteran's non-service-connected pension benefits were adjusted correctly for the relevant annualization periods from December 1, 2016. CONCLUSION OF LAW The criteria for an award of higher amounts of non-service-connected pension benefits from December 1, 2016 have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272, 3.277. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1996 to October 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 determination issued by a Department of Veterans Affairs (VA) Regional Office. In her April 2018 substantive appeal, the Veteran indicated that she wanted to appear at a Board hearing. She was scheduled for a hearing before a member of the Board in September 2020. Subsequently, however, her authorized representative indicated that she was no longer in need of a Board hearing. Accordingly, the Veteran's request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(e). Entitlement to payment of higher amounts of non-service-connected pension benefits from December 1, 2016 is denied. The Veteran asserts that her non-service-connected pension benefits were not adjusted correctly for the relevant annualization periods from December 1, 2016. By way of procedural history, the record reflects that in March 2012, the Veteran was awarded non-service-connected pension benefits. In June 2013, the Agency of Original Jurisdiction (AOJ) amended the Veteran's non-service-connected pension based, in part, on the receipt of a March 2012 VA Form 21-527, in which she reported child support income of $425 per month ($5,100 per year). Pursuant to 38 U.S.C. § 1521(a), non-service-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of her own willful misconduct. A veteran is entitled to pension only if her income is not in excess of the applicable MAPR, as specified at 38 C.F.R. § 3.23 and changed periodically, as 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 income of a veteran, her spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Unreimbursed medical expenses reduce countable income for VA pension purposes. Unreimbursed 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. On February 15, 2017, VA received a VA Form 21-527EZ (Fully Developed Claim (Pension)), in which the Veteran reported that her child support income had been reduced to $385 per month ($4,620 per year). The July 2017 determination on appeal awarded a higher pension amount based on a cost-of-living adjustment but indicated that no changes would be made based on the Veteran's reported child support income until she provided evidence that her child support income had decreased. The letter informed the Veteran that the requested evidence had to be in the form of an official document from the authority from which her support payments were initiated. In a January 2018 development letter, the AOJ reiterated the request for the above-referenced evidence and requested that the Veteran provide updated VA Forms 21P-0517-1 (Improved Pension Verification Report) and 21P-8416 (Medical Expense Report). In August 2019, the Veteran contacted VA and reported that her income had been reduced by about $300 and that she would submit a new income report soon. To date, the requested evidence has not been provided. As a condition of granting or continuing pension, VA may require from any person who is an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person. 38 C.F.R. § 3.277(a). The Board notes that, to date, the requested evidence with respect to the Veteran's income has not been received. Her failure to provide the requested information makes it impossible for VA to determine her eligibility for a higher pension amount. She has a duty to aid VA in developing her claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street; if a claimant wishes help in developing her/his claim, s/he cannot passively wait for it in those circumstances where s/he may or should have information that is essential in obtaining putative evidence). Because the Veteran did not respond to VA's requests for additional income and expense information, the Board will not use the claimed lower child support income amount and will decide the claim based on the evidence of record. In that regard, while the February 15, 2017 VA Form 21-527EZ shows that the Veteran reported unreimbursed medical expenses of $1,500, she indicated that those expenses were incurred in September 2015, prior to the appeal period. As noted above, the Veteran failed to provide evidence of unreimbursed medical expenses during the relevant period on appeal. Accordingly, the Board will not use the unreimbursed medical expenses that were reported and will decide the claim based on the evidence of record. The record reflects that effective December 1, 2016, the Veteran had two dependents (her children), and that, for non-service-connected pension purposes, the MAPR for a Veteran with two dependents was $19,107. See Pension Rate Tables, effective December 1, 2016, available at https://www.benefits.va.gov/ PENSION/rates_veteran_pen16.asp (accessed on October 29, 2021). Based on the above, the Veteran's total annualized income was $5,100 per year. As noted previously, she did not submit evidence of eligible unreimbursed medical expenses. Accordingly, for the period from December 1, 2016, non-service-connected pension is warranted in the amount of the difference between the relevant MAPR ($19,107) and the Veteran's annualized countable income ($5,100), which is $14,007 annually (approximately $1,167 per month). The record reflects that the AOJ awarded pension benefits in the amount of $1,167 per month during this period. See November 2020 VA notification letter. Accordingly, the Veteran is not entitled to non-service-connected pension benefits in excess of $1,167 per month for the period from December 1, 2016. The same sort of analysis applies for subsequent annualization periods (from December 1, 2017), and does not result in entitlement to higher amounts of non-service-connected pension benefits than those already awarded by the AOJ. See November 2020 VA notification letter. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.