Citation Nr: 21076579 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 10-37 980 DATE: December 27, 2021 REMANDED Entitlement to special monthly pension (SMP) based on aid and attendance or housebound status is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision. The matter was previously remanded by the Board in November 2018, July 2020 and September 2021. It is noted that the Veteran has a combined service connected disability rating of 60 percent from December 4, 2008 (anxiety disorder with posttraumatic stress disorder rated at 50% from December 4, 2008; bilateral plantar fasciitis rated at 10% from July 19, 2007; tinnitus rated at 10% from December 4, 2008; and bilateral hearing loss from August 17, 2005). Entitlement to special monthly pension (SMP) based on aid and attendance or housebound status is remanded. The Veteran contended in September 2013 that he is entitled to SMP because his health, including his mental and physical disabilities, including his right eye blindness, had worsened. See Form 9 (September 2013), VA 21-527 Income-Net Worth and Employment Statement (January 2009). A remand is required to ensure that the Veteran's income and expenses are properly calculated for the applicable period, including preparation of a Corpus of Estate Determination. At the outset, the Board observes that special monthly pension benefits are paid in addition to VA pension benefits and, therefore, cannot be paid unless the Veteran is already in receipt of or will be contemporaneously awarded pension benefits. Simply put, since the Veteran does not qualify for nonservice-connected pension due to excessive income, he cannot qualify for special monthly pension. In this case, the Veteran has not been awarded pension benefits and his eligibility for such has not been verified as explained below. First, as a threshold matter, VA must address the question of whether the Veteran's net worth is a bar to his receiving pension benefits, and by extension SMP. In evaluating net worth, it is necessary to determine whether the claimant's financial resources are sufficient to meet his basic needs without assistance from VA. It is VA policy to deny pension for excessive net worth if a claimant's assets are sufficiently large that the claimant could live off these assets for a reasonable period of time. Essentially, pension entitlement is based on need and that need does not exist if a claimant's estate is of such size that he could use it for living expenses. In this case, effective October 18, 2018, VA amended some of its regulations regarding net worth, asset transfers, and income exclusion as they pertain to nonservice-connected pensions. See 83 Fed. Reg. 47246 (Sep. 18, 2018). Relevant to the present case are revisions to 38 C.F.R. § 3.274(a), which now dictates the net worth limit. 38 C.F.R. § 3.274(a). The final rule for those amendments to the VA regulations makes clear that, for claims that were pending as of October 18, 2018, such as the present claim, an administrative determination will still be required under previous provisions when a claimant's net worth exceeds the net worth limit now set forth in 38 C.F.R. § 3.274(a). See 83 Fed. Reg. 47264-65. Second, the Veteran submitted his pension claim in January 2009. See VA 21-4138 Statement In Support of Claim (January 2009). In October 2009, the RO denied entitlement to pension. In July 2012, the Veteran submitted a new claim for pension. An August 2012 Pension Management Center (PMC) decision denied entitlement to nonservice-connected pension with SMP based on the Veteran not submitting the requested forms provided with the July 2012 development letter. See Rating Decision (August 2012). An accompanying notification letter noted that additional forms, including VA Form 21-0516-1 and VA Form 21-0510, were enclosed. See Notification Letter (August 2012). Similarly, a November 2012 Notification Letter stated that additional forms, including VA Form 21-0516-1 and VA Form 21-0510, were enclosed. See Notification Letter (November 2012). Although certain specific relevant form were provided to the Veteran, the Board observes that the Veteran was not provided VA Forms 21-0516-1, 21-0510, 21P-0969 (Income and Asset Statement), and 21-8416 (Request for Information Concerning Medical Expenses, with attached medical expenses, including a breakdown of assisted living expenses). The Board finds that the information the Veteran may provide on these forms is necessary to decide the appeal and that he should be afforded the opportunity to complete such forms prior to a decision on the appeal to ensure that VA has fulfilled its duty to assist in this matter and that due process of law has been afforded to the Veteran. The matter is REMANDED for the following action: 1. Provide the Veteran with VA Forms 21-0516-1, 21-0510, 21P-0969 (Income and Asset Statement), and 21-8416; and request that he submit net worth, income and expense documentation from the date of claim to the present, to specifically include information relevant to his assets. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated, to include based the regulations in effect October 18, 2018. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.