Citation Nr: 21072629 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-19 973 DATE: December 3, 2021 ORDER Entitlement to non-service-connected pension benefits is denied. FINDING OF FACT For the period relevant to the claim for which clear and adequate information is available, the Veteran's countable income exceeded the maximum allowable pension rate (MAPR) for purposes of entitlement to non-service-connected pension benefits. CONCLUSION OF LAW The criteria for payment of non-service-connected pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.277. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1972 to May 1974, and from February 2003 to May 2003. He also had service in the United States Army Reserve and the Army National Guard. His decorations include the Army Achievement Medal, the National Defense Service Medal, and the Sharpshooter Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Guaynabo, Puerto Rico. In December 2015, August 2017, and March 2020, the Board remanded the issue currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See June 2021 supplemental statement of the case. Entitlement to non-service-connected pension benefits is denied. The Veteran seeks to establish entitlement to non-service-connected pension benefits. The record reflects that VA received the Veteran's claim in June 2013. 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 his own willful misconduct. A veteran is entitled to pension only if his 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, his spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In this case, the record reflects that the Veteran satisfies the service criteria as set out in 38 C.F.R. § 3.3(a)(3)(i) based on more than 90 days of active service during the Vietnam War period, which is defined as running from February 28, 1961 to May 7, 1975. See also 38 U.S.C. § 101; 38 C.F.R. § 3.2. The question for the Board is whether, for the relevant period on appeal, the Veteran's countable income is below the relevant MAPR for purposes of entitlement to non-service-connected pension benefits. 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. The record reflects that at the time of the Veteran's claim in June 2013 he had two dependents (his spouse and one of his children). At that time, for non-service-connected pension purposes, the MAPR for a Veteran with two dependents was $18,453. See Pension Rate Tables, effective December 1, 2012, available at https://www.benefits.va.gov/PENSION/ rates_veteran_pen12.asp (accessed on December 3, 2021). Following review of the record, the Board must find that the preponderance of the evidence is against the Veteran's claim. On a December 2020 VA Form 21P-0516-1, he reported that his total monthly income for 2013 was $15,204. He also reported that his spouse's annual income was $3,801. However, it appears that the $15,204 amount as reported by the Veteran was his Social Security Administration (SSA) disability benefit amount and that additional income should be included for the annualized period from June 2013. See, e.g., June 2013 SSA award letter (showing that the Veteran's SSA disability income was $1,267 per month ($15,204 per year)). Specifically, a January 2013 statement from the Defense Finance and Accounting Service (DFAS) shows that the Veteran had military retirement income of $374 per month ($4,488 per year) effective March 1, 2013. Accordingly, the Veteran's total annualized household income was $23,493 effective June 2013 (calculated by adding total annual income of $19,692 for the Veteran and $3,801 for his spouse). As such, his annualized household income of $23,493 was higher than the relevant MAPR amount of $18,453. Based on the foregoing, the Board finds that, for the initial annualization period from June 2013, the preponderance of the evidence establishes that the Veteran's countable income exceeded the relevant MAPR. Accordingly, as he did not meet the annual income requirement set forth in 38 C.F.R. § 3.3, payment of non-service-connected pension benefits cannot be made. As for subsequent annualization periods starting in June 2014, while the record contains photocopies of records and pieces of information with regard to the Veteran's income and expenses for those periods, he has not provided adequate information to assist VA in deciding his claim. Pursuant to the March 2020 Board remand, the AOJ sent the Veteran notice letters in April 2020, September 2020, and November 2020 requesting that he provide his income and net worth information, as well as information pertaining to any unreimbursed medical expenses he may have incurred during period from June 2013. While the Veteran reported his income on VA Forms 21P-0969 and 21P-0516-1, he did not report any unreimbursed medical expenses. However, the record shows that he may have had such expenses. For instance, while the Veteran submitted statements from DFAS documenting military retirement income, and the statements appear to reflect deductions from pay (or "allotments/bonds") for dental and vision insurance, it is unclear from the record how frequently those deductions were made. Similarly, an April 2020 SSA inquiry report noted that the Veteran incurred Medicare Part B premiums as of August 2014, with a current deduction of $144.60. However, the Veteran did not report any Medicare Part B premium expenses for any period under consideration. 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 Veteran has not provided adequate information with respect to his income and unreimbursed medical expenses for the annualized periods on appeal from June 2014. He has also not provided any information with respect to his net worth during this period. See also June 2021 supplemental statement of the case (noting the Veteran's failure to properly provide the requested information). His failure to provide the requested information makes it impossible for VA to make an accurate determination with respect to his eligibility for non-service-connected pension benefits for the period from June 2014. Under the law, he has a duty to aid VA in developing his 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 has not provided adequate information with respect to his income, unreimbursed medical expenses, and net worth for the period from June 2014 in response to VA's requests for additional information, the Board is constrained to find that he has not met his evidentiary burden in connection with his claim for non-service-connected pension benefits for the period from June 2014, as he has not provided the requisite financial information. Under the circumstances, the Board must find that the claim for non-service-connected pension benefits for the period from June 2014 is without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 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.