Citation Nr: 21069867 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-03 781 DATE: November 22, 2021 ORDER The rate of nonservice-connected pension benefits effective May 8, 2011, is correct; the claim is denied. REFERRED Whether clear and unmistakable error (CUE) exists in the August 2007 decision reinstating and determining the monthly rate of nonservice-connected pension benefits is referred to the agency of original jurisdiction (AOJ) for adjudication. Through statements made in the November 2016 notice of disagreement and January 2017 substantive appeal, as well as testimony before the Board of Veterans' Appeals (Board) in December 2020, the Veteran disputes the rate of monthly pension entitlement following his arrest on May 6, 2006, until the 61st day following his conviction on October 18, 2007. Notably, he maintains that the AOJ incorrectly calculated the amount of SSA benefits he was receiving when determining his annual countable income. The Board notes that in August 2007, the AOJ reinstated his pension benefits effective December 1, 2004. His monthly entitlement was set forth as follows: $106.00, from December 1, 2004; $111.00, from December 1, 2005; $110.00, from July 7, 2006; $110.00, from November 8, 2006; and $114.00, from December 1, 2006. The Veteran was notified of the decision and his appellate rights but did not express disagreement with the rate of pension within one year and the decision became final; he did not request an increase in benefits for calendar year 2006 or 2007. The propriety of the countable income calculation for a calendar year is an adverse determination concerning the provision of benefits and thus, once an adjudication assigning a rate of pension becomes final, the finality of the decision may only be overcome by a request for revision based on CUE. To the extent the Veteran argues that CUE exists in the August 2007 decision and requests a revision of that decision the matter is referred to the AOJ to adjudicate in the first instance. FINDING OF FACT Effective May 8, 2011, the Veteran's annual income consisted of $10,344.00, in Social Security Administration (SSA) income; he reported no medical expenses, which did not reduce his countable income; pension rates are determined by subtracting the Veteran's countable income from VA's maximum annual pension rate (MAPR) and that amount is then divided by 12 for a monthly payment rate. CONCLUSION OF LAW The rate of nonservice-connected pension benefits effective May 8, 2011, is proper. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.23, 3.271, 3.272 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board on appeal from a November 2016 decision reinstating the Veteran's nonservice-connected pension benefits effective May 8, 2011, the date he was released from incarceration. At the outset, the Board notes the Veteran does not contend that the rate of his nonservice-connected pension benefits should be higher effective May 8, 2011. Notably, the Veteran does not dispute his income or expenses as of the date of his release from incarceration on May 8, 2011. Instead, he disputes the amount of SSA income used to calculate his annual income between May 2006 and December 2007. See November 2016 notice of disagreement, January 2017 substantive appeal, and December 2020 BVA Transcript. For the reasons that follow, the Board concludes that the rate of nonservice-connected pension benefits effective May 8, 2011, 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 evidence shows effective May 8, 2011, the Veteran's 's annual income consisted of SSA income in the amount of $10,344.00. He had no medical expenses and thus, his countable income was not reduced. Pension rates are then determined by subtracting the Veteran's countable income from VA's MAPR. That amount is then divided by 12 for a monthly payment rate. On May 8, 2011, the MAPR for a veteran with no dependents was $11,830.00, minus income of $10,344.00, equaled $1,486.00, which was divided by 12 to get the monthly payment rate of $123.00. The Board is bound by the law governing pension rates in its determination in this case. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273. Thus, the Board concludes that rate of nonservice-connected pension benefits effective May 8, 2011, was proper. The preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the issue on appeal must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. Donohue 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.