Citation Nr: 21006735 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-24 366 DATE: February 5, 2021 ORDER Entitlement to non-service-connected pension benefits is granted for the period on appeal prior to January 29, 2019, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT For the period at issue prior to January 29, 2019, the Veteran’s maximum annual pension rate (MAPR) limit set by law for payment of VA non-service-connected pension benefits exceeded his countable income. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for non-service-connected pension benefits for the period on appeal prior to January 29, 2019 have been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1954 to August 1956. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2019 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In January and June 2020, the Board remanded the issue currently on appeal to the agency of original jurisdiction (AOJ) for additional action. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See July 2020 supplemental statement of the case. Entitlement to non-service-connected pension benefits is granted for the period on appeal prior to January 29, 2019. The Veteran seeks to establish entitlement to non-service-connected disability pension benefits for the period prior to January 29, 2019. VA received his pension claim on August 28, 2018. See August 2018 VA Form 21-527EZ. As noted in the June 2020 Board remand, the RO granted special monthly pension, which is a greater benefit than non-service-connected pension, effective January 29, 2019. Therefore, the relevant period for consideration is from August 28, 2018 to January 29, 2019. 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 meets the qualifying service criteria as defined in § 3.3(a)(3)(i) based on more than 90 days of active service during the war period from June 27, 1950 through January 31, 1955. See 38 U.S.C. § 101; 38 C.F.R. § 3.2. The remaining question for the Board is whether, for the pertinent period on appeal, the Veteran’s countable income was 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 the Veteran has one dependent (his spouse). At the time of his claim in August 2018, for non-service-connected pension purposes, the MAPR for a veteran with one dependent was $17,241. See Pension Rate Tables, effective December 1, 2017, available at https://www.benefits.va.gov/PENSION/rates _veteran_pen17.asp (accessed on February 3, 2021). The MAPR was increased to $17,724, effective December 1, 2018. Following review of the record, and with resolution of reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports entitlement to non-service-connected pension benefits during the period at issue. On his August 2018 VA form 21-527EZ, the Veteran reported Social Security Administration (SSA) income of $658 per month ($7,896 per year) for himself and $186 per month ($2,232 per year) for his spouse, as well as retirement income of $1,017 per month ($12,204 per year). See also October 2018 VA Form 21-527EZ. A February 2019 Social Security Administration (SSA) inquiry report shows monthly SSA income for the Veteran of $675 ($8,100 per year) effective December 2017, and $693.50 ($8,322 per year) effective December 2018. A February 2019 SSA inquiry report shows monthly SSA income for the Veteran’s spouse of $293 ($3,516 per year) effective December 2017, and $301.50 ($3,618) effective December 2018. Therefore, the Veteran’s total annualized household income, to include SSA income and pension income, was $23,820 effective September 2018 (calculated by adding SSA income in the amounts of $8,100 and $3,516 to pension benefits in the amount of $12,204) and $25,144 effective December 2018 (calculated by adding SSA income in the amounts of $8,322 and $3,618 to pension benefits in the amount of $12,204). Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. As noted above, the MAPR, effective December 1, 2017, for a Veteran with one dependent was $17,241 and 5 percent of that amount is $862.05. Therefore, in calculating the Veteran’s countable expenses, only unreimbursed medical expenses in excess of $862.05 can be considered. On his August 2018 VA form 21-527EZ, the Veteran reported annual Medicare Part B premiums of $1,284 for himself and $1,212 for his spouse, as well as other unreimbursed medical expenses, including caregiver expenses, totaling $22,000. See also February 2019 SSA inquiry reports (showing monthly Medicare Part B premiums of $135.50 ($1,626 per year) for the Veteran and $113.50 ($1,362 per year) for his spouse). Accordingly, for the annualization period from August 2018, the Veteran’s total unreimbursed medical expenses were $24,496 (calculated by adding $1,284 and $1,212 in Medicare Part B premiums, as well as $22,000 in other unreimbursed medical expenses). Deducting $862.05 (5 percent of MAPR) from $24,496 (total unreimbursed expenses for the annualization period from September 2018) results in $23,633.95 in deductible unreimbursed expenses for the annualization period from September 2018. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR ($23,633.95) from the annualized income of $23,820, the resulting countable income is $186.05, which is below the relevant MAPR of $17,241. The same sort of analysis applies for the period from December 2018 to January 2019 and results in countable income below the relevant MAPR. Based on the foregoing, and after resolving reasonable doubt in the Veteran’s favor with respect to the nature of the caregiver expenses he paid prior to January 29, 2019 (taking into consideration his later diagnosis of Alzheimer’s disease), the Board finds that entitlement to non-service-connected pension benefits for the period prior to January 29, 2019 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ragheb, Johnny 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.