Citation Nr: A21017963 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 210406-177366 DATE: November 5, 2021 REMANDED Entitlement to apportionment of the Veteran's nonservice-connected pension benefits, to his spouse, during his current incarceration, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to April 1992. In this matter, D.R., is the appellant and the Veteran's spouse. The apportionment decision on appeal was issued in March 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The March 2021 decision denied apportionment of the Veteran's nonservice-connected pension benefits on the behalf of his spouse. The March 2021 decision was issued to the Veteran and not the appellant. However, both Veteran and the appellant signed the same April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), which specifically identified the March 2021 decision as the decision they disagreed with. Thus, the Board will presume the appellant received the March 2021 decision. Additionally, because the Veteran is incarcerated, he does not have a personal stake in the outcome as to any apportionment of his nonservice-connected pension benefits, nor has he shown that he has been adversely affected by any apportionment. See Belton v. Principi, 17 Vet. App. 209, 211-12 (2003) (holding an incarcerated veteran did not have standing to file an appeal of the termination of an apportionment granted on behalf of his mother). Therefore, the Board has recognized the Veteran's spouse, D.R., as the appellant in the case. In the April 2021 NOD, the appellant elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to apportionment of the Veteran's nonservice-connected pension benefits, to his spouse, during his current incarceration, is remanded. Pursuant to 38 U.S.C. § 1505, pension benefits administered by the Secretary shall not be paid to or for an individual who has been imprisoned in a Federal, State, or local penal institution because of conviction of a felony or misdemeanor for any part of the period beginning 61 days after such individual's imprisonment begins and ending when such individual's imprisonment ends. 38 U.S.C. § 1505(a). Additionally, where any veteran is disqualified for pension for any period solely by reason of subsection (a) of this section, the Secretary may apportion and pay to such veteran's spouse or children the pension which such veteran would receive for that period but for this section. 38 U.S.C. § 1505(b). By way of background, a November 2014 rating decision awarded the Veteran entitlement to nonservice-connected pension benefits effective June 18, 2014. One prerequisite for entitlement to VA nonservice-connected pension benefits is that the veteran's income may not exceed the applicable maximum annual pension rate set by Congress. 38 U.S.C. § 1521; 38 C.F.R. § 3.23(a). The March 2021 decision denied apportionment of the Veteran's nonservice-connected pension benefits to his spouse during his current incarceration based on a finding the Veteran had excess income from December 1, 2014. The March 2021 decision also found that the Veteran had been overpaid, that a separate initial proposal letter would inform him about the overpayment, and that VA's Debt Management Center would also send him letter explaining how much he had been overpaid, as well as how to repay this debt. However, the Board is unclear as to whether the AOJ, in fact, terminated the Veteran's nonservice-connected pension benefits effective December 1, 2014. This is especially true in light of the fact the basis for a termination of the Veteran's nonservice-connected pension benefits due to excess income should reflect that the Veteran received income for the Social Security Administration from October 2014 through July 2015 (prior to the appeal period for the claim at issue here - from November 9, 2020 to March 10, 2021) and that he has been incarcerated since February 2019 (for the entirety of the appeal period for the claim at issue here). Further, the record also does not reflect the Veteran was provided with any subsequent correspondence regarding an overpayment as indicated would be forthcoming in the March 2021 decision. Additionally, if the March 2021 decision did, in fact, terminate the Veteran's nonservice-connected pension benefits effective December 1, 2014 and/or create an overpayment, the Veteran is advised that the one-year appeal period has not yet expired as to any determinations. However, in order for the Board make a determination with respect to whether apportionment of the Veteran's nonservice-connected pension benefits, to his spouse, during his current incarceration, is warranted, the threshold question as to whether the Veteran would be entitled nonservice-connected pension benefits, but for his incarceration, during the appeal period, must be clearly reflected in the record. Thus, prior to adjudication of this matter, it is essential to determine whether the AOJ, in fact, terminated the Veteran's nonservice-connected pension benefits effective December 1, 2014, as well as the creation and current balance of any overpayment. Thus, in order to correct the pre-decisional error regarding the lack of clarity in the record, a complete accounting of the Veteran's nonservice-connected pension paid and owed during the pendency of the claim, as well as a thorough calculation any overpayment and any current outstanding balance, must be completed. This matter is REMANDED for the following actions: 1. Prepare an accounting that addresses whether the Veteran's nonservice-connected pension benefits were terminated effective December 1, 2014, and if so, the basis of the termination. 2. Additionally, prepare an accounting that identifies if the Veteran has an overpayment, as well as any current remaining balance. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.