Citation Nr: A21020365 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 210819-180120 DATE: December 21, 2021 ORDER Special monthly pension (SMP) benefits based on the need for aid and attendance is granted. FINDING OF FACT The Veteran is in need of regular aid and attendance and the countable household income for VA purposes is less than the applicable maximum annual pension rate (MAPR). CONCLUSION OF LAW The criteria for SMP benefits based on the need for aid and attendance are met. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.278, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1946 to May 1947. The case is on appeal from an April 2021 decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). SMP benefits based on the need for aid and attendance. Legal Criteria VA nonservice-connected pension benefits are payable to a veteran who is permanently and totally disabled from nonservice-connected disability or disabilities, which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3. A veteran meets the service requirements of that section if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521; 38 C.F.R. § 3.3. In addition, basic entitlement requires the claimant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR shall be reduced by the amount of the countable annual income of the Veteran. 38 U.S.C. §§ 1503, 1521; 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, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from the Social Security Administration (SSA), interest and dividends, and spousal pensions are included as countable income as they are not specifically excluded under 38 C.F.R. § 3.272. Total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "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). Deductible medical expenses include payments to hospitals, nursing homes, medical foster homes, and inpatient treatment centers (including inpatient treatment centers for drug or alcohol addiction), including the cost of meals and lodging charged by such facilities, for claims received on or after October 18, 2018 that VA has not previously granted. 38 C.F.R. § 3.278(d). 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 no reimbursement is received, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. An SMP is warranted if there is a need for the aid and attendance of another person as defined by 38 C.F.R. § 3.352. 38 C.F.R. § 3.351. Specifically, SMP benefits are warranted if the Veteran is in need of regular aid and attendance. The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351. The Veteran shall be considered to be in need of regular aid and attendance if the person 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; or is a patient in a nursing home because of mental or physical incapacity; or, establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Analysis The Veteran is seeking a SMP based on the need for aid and attendance. In November 2020, he submitted a Disability Benefits Questionnaire (DBQ) regarding the need for aid and attendance completed by a private physician. The physician reported that the Veteran requires assistance with preparing meals, bathing, and medication management due to being legally blind in both eyes and the requiring a walker for support. In a February 2021 claim form, the Veteran reported household income of SSA benefits for himself and his wife. He also denied owning assets valued more than $10,000 after excluding the family residence, personal effects, and vehicles necessary for transportation. The Veteran also submitted private medical records in February 2021 that indicate severe vision impairment. In February 2021, the Veteran's and his wife's SSA benefit information was associated with the file. This shows that since December 2020 the Veteran has received $1,960.50 and his wife has received $741.50 in monthly SSA benefits. This information shows that the have also paid $148.50 per month in Medicare premiums since December 2020. In August 2021, the Veteran filed a notice of disagreement (NOD) and requested the evidence submission lane. The Veteran also submitted additional medical expenses at this time. He reported paying private medical insurance premiums of $7,444.80 for his household. He also reported paying $740 per year in unreimbursed medication expenses. The document indicates annual household unreimbursed medical expenses of $11,748.80. Resolving reasonable doubt in the Veteran's favor, the Board finds that aid and attendance is warranted based on the need for assistance with preparing meals, bathing, and medication management due to being legally blind in both eyes and requiring a walker for support. In addition, the Veteran's income is not in excess of the applicable MAPR. In this regard, the household annualized SSA income is $32,424. Since December 2020, the applicable MAPR for a Veteran requiring aid and attendance with one dependent is $27,549. The Veteran's unreimbursed medical expenses in excess of 5 percent of the applicable MAPR are $10,371.35. Therefore, the Veteran's household countable income after adjusting for unreimbursed medical expenses is $22,052.65, which is less than the applicable MAPR. The preponderance of the evidence shows that the Veteran is in need of regular aid and attendance and his countable income for VA purposes is less than the MAPR. Therefore, entitlement to SMP benefits is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.