Citation Nr: 21069897 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-07 404 DATE: November 22, 2021 REMANDED The matter of whether Department of Veterans Affairs (VA) correctly reduced the Veteran's nonservice-connected pension benefits due to previously unreported income is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1970 to November 1972. The current appeal before the Board of Veterans' Appeals (Board) arose from an October 2014 decision which reduced the Veteran's nonservice-connected pension benefits due to previously unreported income, effective November 1, 2010. In December 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of the December 2015 hearing is of record. In July 2018, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. In a January 2021 letter, the Veteran was advised of the retirement of the VLJ who had held the December 2015 hearing and was given an opportunity to testify at a new hearing before a VLJ who would decide his appeal. However, the Veteran failed to respond. Accordingly, the Board proceeded with further appellate review of his appeal. Specifically, in March 2021, the Board again remanded this appeal for further development. Unfortunately, for the reasons set forth below, the Board finds the need to remand this appeal once again. The Board sincerely regrets the delay caused by this current Remand but finds that the development requested herein is necessary prior to a final adjudication of this appeal. Whether VA correctly reduced nonservice-connected pension benefits Following the Board's March 2021 remand, the AOJ issued a March 2021 letter delineating the countable income totals and the total medical expenses that were used to determine the Veteran's pension payments from November 1, 2010, through December 1, 2020. Notably, however, neither the March 2021 letter, nor any other evidence of record, indicated the total benefit amount the Veteran was entitled to based on these calculations. Further, no evidence of record, to include the March 2021 letter, indicates what medical expenses were or were not used to determine the total unreimbursed medical expenses stated in the letter during each annualization period since February 2014. Moreover, the stated total countable income for those years where medical expenses were deducted does not appear to match the stated initial annual income for each respective year, with the stated unreimbursed expenses added on. Further, based on only the apparent findings from the March 2021 letter, it is unclear what the Veteran's pension benefit entitlement was determined to be for each annualization period beginning November 1, 2010. Without this evidence, the Board is unable to determine whether the final apparent reduction in the Veteran's pension benefits was correctly determined. Thus, based on these deficiencies in the record, remand is required in order for the AOJ to prepare an audit of the Veteran's nonservice connected pension benefits. Finally, in the March 2021 remand, the Board sought additional evidence with respect to the Veteran's final income payments, his receipt of a one-time payment from the Federal Thrift Savings Plan (TSP), and his unreimbursed medical expenses. While there is no indication that the Veteran responded to requests for information, given the evidence of record (including his statements and the AOJ's determination), as noted in the October 2014 letter, that his final income and TSP payments were being counted for the one-year period from November 1, 2010, the Board finds that no further development is warranted to obtain information as to these payments. Nonetheless, to afford the Veteran every possible consideration, while this matter is on remand, the AOJ should again request that he provide evidence of his unreimbursed medical expenses, including completed medical expense reports, beginning with the first annualization period from October 6, 2010, to October 30, 2011, and for each calendar year thereafter. Accordingly, this matter is hereby REMANDED for the following action: 1. Send a letter to the Veteran, together with copies of VA Form 21P-8416, and request that he provide VA with all appropriate documentation to identify all unreimbursed medical expenses that he paid beginning with the first annualization period, from October 6, 2010 to October 30, 2011, for the period from November 1, 2011, to December 31, 2011, and then for each calendar year thereafter, using a separate form for each year. 2. After any recalculation of the Veteran's entitlement to nonservice-connected pension benefits based on the receipt of additional evidence of unreimbursed medical expenses, prepare an audit reflecting his entitlement to nonservice-connected pension benefits for each year of the appeal period beginning November 1, 2010. Particularly, this audit should show how unreimbursed medical expenses were calculated and used (including which expenses were and were not used) to reduce his countable income for each year, and the actual monthly benefit that he was entitled to each year, with all appropriate adjustments in total income or benefits entitlement properly reflected. The Veteran must be provided with a copy of the audit report. 3. Thereafter, the RO should review the expanded record to determine whether the benefit sought on appeal may be granted. Readjudication must clearly detail and explain how all monthly income and unreimbursed medical expenses, as well as annualized income and expenses, were calculated for each year of the appeal, and the total benefit to which the Veteran was entitled, with appropriate adjustments reflected, for each year of the appeal period. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.