Citation Nr: A21019674 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 211028-195388 DATE: December 9, 2021 ORDER Entitlement to non-service-connected death pension benefits is denied. Basic eligibility to special monthly pension based on the need for regular aid and attendance is denied. FINDINGS OF FACT 1. The appellant's countable income exceeded the maximum annual pension rate (MAPR) limit for a surviving spouse without dependents. 2. The appellant is not in need of the regular aid and attendance of another person and is not housebound. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment of nonservice-connected death pension benefits based on the appellant's countable income are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271-3.278. 2. The criteria for basic eligibility for special monthly pension based on the need for regular aid and attendance of another person or housebound are not met. 38 U.S.C. §§ 1502, 1521, 5307; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.351, 3.352, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1950 to November 1952. The Veteran died in November 1998. The appellant is the surviving spouse. In October 2021, the appellant filed a decision review request and elected direct review. 38 C.F.R. § 19.2(d). Based on the appellant's choice to pursue a direct review of her appeal, the Board will decide the appeal "based on the evidence of record at the time of the prior decision." The Board notes that the rating decision on appeal was issued in September 2021. 1. Entitlement to special monthly pension The appellant filed a claim in July 2020 requesting entitlement to nonservice-connected death pension at the aid and attendance rate. A September 2021 rating decision denied the claim finding the evidence did not establish that special monthly pension is warranted. Applicable Law VA's pension program is set up to assist certain veterans and their survivors who are in need, it is an income-based program only intended to give beneficiaries a minimum level of financial security. It is not intended to protect substantial gains in income or assets. By law VA must reduce pension benefits by the gross amount of countable family income received. 38 C.F.R. § 3.271 and 3.273. Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4)(iii). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of a claimant's countable annual income. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, one-time lump sum payments or similar income, even if waived) shall be included during the 12-month annualization period in which received, except for income specifically excluded. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271(a), 3.272. Gross income received is counted rather than the amount of the payment a beneficiary receives, except where certain expenses are allowed to be deducted (e.g., necessary operating expenses are deductible from business, farm, or professional income and medical, legal or other expenses incident to an injury or death or expenses incident to the collection or recovery of the amount of an award or settlement for an injury or death are deductible from compensation received for an injury or death). The amount of recurring and irregular income anticipated or received by a beneficiary shall be added to determine the beneficiary's annual rate of income for a 12-month annualization period commencing at the beginning of the 12-month annualization. 38 C.F.R. § 3.273(d). The amount of nonrecurring income (e.g., an inheritance) received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). For purposes of calculating countable income, total income may be reduced by amounts paid by a claimant for unreimbursed medical expenses that are "in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid." 38 C.F.R. § 3.272(g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the claimant received no reimbursement, such as from an insurance company. However, medical insurance premiums themselves, including Medicare Plan B premiums deducted from Social Security benefits, may be applied to reduce countable income. For the purpose of determining initial entitlement, or for resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the beneficiary's countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). In essence, VA subtracts the total amount of countable income in one year from the MAPR for that year; then, if a positive amount remains, the rest is divided by 12 to determine the monthly pension benefit. When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount on the effective date of the change, typically December 1st. 38 C.F.R. § 3.273(b)(1). Whenever there is a change in a beneficiary's countable income, VA will repeat the calculation using the beneficiary's new countable income effective the date of the change in the amount of income. 38 C.F.R. § 3.273(b)(2). Additionally, an appellant who receives nonservice-connected survivor's pension may receive it at a higher rate if she is in need of "regular aid and attendance." 38 U.S.C. § 1521(d). Requiring aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. An individual will be considered to be in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352 (a). See 38 C.F.R. § 3.351 (b), (c). The following will be accorded consideration in determining the need for regular aid and attendance (§ 3.351(c)(3)): 1) inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; 2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); 3) inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; 4) inability to attend to the wants of nature; or 5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the claimant is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). A surviving spouse that does not meet the requirements for increased pension based on need for aid and attendance, will nonetheless be awarded a higher rate of death pension if they are permanently housebound by reason of disability. The "permanently housebound" requirement is met when the surviving spouse is substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime. See 38 C.F.R. § 3.351 (f). Factual and Procedural Background The appellant contends she is entitled to special monthly pension for aid and attendance and has unreimbursed medical expenses in excess of her income. The appellant reported being cared for by her son in her home with medical expenses for calendar year 2019 of $2,400 for medicine and $12,000 for caregiving. See VA 21-534EZ July 2020. In November 2020 the appellant was advised that additional evidence was required, to include a doctor's statement and/or medical report showing at least one of the following: the need the aid and attendance of another person in performing your activities of daily living; severe visual impairment; or permanently housebound. She was also asked to provide documentation and receipts for caregiving services that included clear evidence of provided services and proof of payment along with an attendant affidavit, and a VA 21-8416 medical expense report properly filled out with actual dates for expenses paid. All requested forms were provided to the appellant. See MAP-D Development Letter November 2020. The appellant provided an undated VA 21-2680 examination for housebound status or permanent need for regular and attendance; however, based on the appellant's reported age of 88 years old the examination was completed in late 2018 or 2019, which predates the claim for aid and attendance benefits filed in July 2020. Regardless, the clinician reported that the appellant did not require nursing care, was not legally blind (20/20 corrected in both eyes), and able to feed herself, prepare meals and bath and tend to hygiene without assistance and did not require aids or assistance of another with locomotion. The examiner did note the need for medication management, citing organization. A care expense statement was provided in December 2020. The appellant's son reported providing services for bathing, standing, sitting, getting in and out of bed, eating, walking, dressing, taking medication and going to medical appointments. He claimed these services began on January 1, 2019 and continued to present for which he received payment of $1,000 per month. The Board notes that while the son signed the statement, it was not certified by the appellant. In January 2021 the appellant was again advised that additional evidence was necessary. Specifically, the correspondence requested an updated VA Form 21-2680, examination for housebound status or permanent need for regular aid and attendance as the provided examination was outdated and VA Form 21P-8416 medical expense report that included the hourly rate and number of hours for her caregiving expenses. The requested forms were provided to the appellant. See MAP-D Development Letter January 2021. In May 2021 the appellant received another request for additional information. The Regional Office requested clarification of monthly income and expenses as the requested in-home care fees ($1,000 per month) exceed the reported monthly income ($784 per month). In June 2021 the appellant responded that she is helped by her two children as her medical expenses are higher than her income. See Correspondence June 2021. Analysis The Board notes that the appellant has not provided an updated VA Form 21-2680, examination for housebound status or permanent need for regular aid and attendance, a VA Form 21P-8416 medical expense report or documentation showing proof of payment for caregiving services. Documentation of these expenses is required. The VA may request such documentation to substantiate the claim for benefits that the appellant seeks. The appellant was advised of the need for additional evidence by the Regional Office in November 2020, January 2021, and May 2021. The appellant received copies of all requested forms. It is the responsibility of a claimant to cooperate with VA in assisting in the development of his or her claim. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). However, it is ultimately the claimant's responsibility to present and support their claim for benefits under the laws administered by VA. See 38 U.S.C. § 5107 (a); see also Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009). Regrettably, as the evidence requested to document the claimed medical expenses has not been provided, the Board cannot consider the appellant's in-home caregiver fees or medicine expenses in calculating her unreimbursed medical expenses. Furthermore, the appellant has not provided an updated VA Form 21-2680, examination for housebound status or permanent need for regular aid and attendance. The available evidence does not establish that the appellant is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less, or that she is a patient in a nursing home. It also does not reflect an inability to dress or undress, a frequent need of adjustment of any special prosthetic or orthopedic appliances, or an inability of the claimant to feed herself without the assistance of another. Nor is there evidence that the appellant has an inability to attend to the wants of nature or requires care or assistance on a regular basis to protect herself from the hazards or dangers inherent in her daily environment. Accordingly, the Board finds the appellant is not entitled to special monthly pension due to the need for regular aid and attendance or housebound. As such, the appellant's only reported source of income is Social Security Administration (SSA) benefits. According to SSA, the appellant's monthly income was $928.60, or $11,143.20 annually and her Medicare Part B premium was $148.50 monthly, or $1,762 annually. See SSA Profile and Benefit Data November 2020. The Medicare Part B expenses, in excess of five percent of the applicable maximum annual pension rate, were used to reduce the appellant's total income. 38 C.F.R. § 3.272 (g)(1)(iii). Thus, $461, which is five percent of the applicable maximum annual pension rate was subtracted from $1,176, the annual expense for Medicare Part B for a total of $1,301 in medical expenses ($1,176 $461=$1,301). The $1,301 in unreimbursed medical expenses was subtracted from the appellant's total income of $11,143.60 resulting in an income for VA pension purposes of $9,842 ($11,143-$1,301=$9,842). The MAPR for a surviving spouse without dependents for 2020 was $9,224. The appellant's income for pension purposes of $9,842 exceeds the MAPR. As the appellant's income exceeds the maximum income, she is not entitled to pension benefits. Therefore, the Board must deny the appellant's claim for nonservice-connected death pension benefits, to include special monthly pension. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.