Citation Nr: 21006998 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-44 331 DATE: February 8, 2021 ORDER Entitlement to nonservice-connected pension benefits for the period on appeal prior to September 15, 2019 is denied. Entitlement to nonservice-connected pension benefits for the period on appeal from September 15, 2019 is denied. FINDINGS OF FACT 1. Prior to September 15, 2019, the Veteran was not 65 years of age or older and was not permanently and totally disabled from nonservice-connected disabilities. 2. From September 15, 2019, the Veteran’s countable income exceeds the maximum annual pension rate (MAPR) for a Veteran with no dependents. CONCLUSIONS OF LAW 1. The criteria for nonservice-connected pension have not been met for the period on appeal prior to September 15, 2019. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.102, 3.3. 2. The criteria for nonservice-connected pension have not been met for the period on appeal from September 15, 2019. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1974 to November 1977. 1. Entitlement to nonservice-connected pension benefits prior to September 15, 2019 VA nonservice-connected pension benefits are payable to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B). The Veteran served on active duty in the United States Army from November 1974 to November 1977, which includes service during the Vietnam Era. 38 C.F.R. § 3.2 (2020). Thus, he meets the requirement of having service during a recognized period of war. Moreover, the Veteran’s DD-214 shows his date of birth as September 15, 1954; thus, he turned 65 on September 15, 2019. Therefore, prior to September 15, 2019, the evidence must show that he was permanently and totally disabled due to his nonservice-connected disabilities. For the period on appeal prior to September 15, 2019, the evidence of record is negative for any indication that the Veteran was permanently and totally disabled, to include as due to nonservice-connected disabilities. There is no evidence that the Veteran received Social Security Administration disability benefits or was a patient in a nursing home. Moreover, the evidence of record does not demonstrate that the Veteran was unemployable or had a disability that would render the average person unable to follow a substantially gainful occupation. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the “average person” test. See 38 U.S.C. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that the evidence of record does not demonstrate that the Veteran meets any of those criteria. Alternatively, all veterans who are basically eligible for pension benefits and who are unable to secure and follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (2020). When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran’s disabilities render him or her unemployable. See 38 C.F.R. § 4.17 (2020). Here, there is no competent and credible evidence of record which demonstrates that the Veteran is permanently and totally disabled due to a nonservice-connected disability. The Board acknowledges that the Veteran has nonservice-connected disabilities; however, they have not been shown by competent credible evidence to be permanently and totally disabling. In this case, the Veteran has been found to have the following disabilities for pension purposes: diabetes mellitus, type II, rated as 20 percent disabling; left shoulder impingement with osteoarthritis, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; benign prostatic hyperplasia, rated as 10 percent disabling; and depressive disorder, rated as 10 percent disabling. Thus, the Veteran’s disabilities do not meet the schedular criteria for unemployability, as none of his disabilities are individually rated as 40 percent disabling or higher and his combined disability rating is only 50 percent. Moreover, the Veteran was provided VA pension examinations in October 2012, May 2014, and November 2019. At the time of his October 2012 pension examination, the VA examiner noted that the Veteran was not a patient in a nursing home for long-term care because of his disability nor was he hospitalized. The Veteran was employed by FedEx as a courier. Though his employment was part-time at the time of examination, he reported that he did work full-time during the busy seasons. The VA examiner opined that the Veteran’s medical conditions did not prevent him from securing or following a substantially gainful occupation. The examiner further noted that the Veteran’s medical conditions were well-controlled and stable, and did not hinder his employment, as he was employed at a job requiring significant physical and intellectual capabilities. The May 2014 VA examiner noted that the Veteran was not a patient in a nursing home for long-term care because of his disability nor was he hospitalized. Though the Veteran reported that he was unemployed at that time, the VA examiner opined that the Veteran’s medical conditions did not prevent him from securing or following a substantially gainful occupation. Moreover, the examiner further opined that the Veteran could perform sedentary and light physical activities based on his nonservice-connected left shoulder impingement and minimal osteoarthritis. At the time of his November 2019 pension examination, the VA examiner noted that the Veteran was not a patient in a nursing home for long-term care because of his disability nor was he hospitalized. The Veteran was employed part-time by Armed Forces Retirement Home (AFRH) as a janitor. The VA examiner opined that the Veteran’s medical conditions did not prevent him from securing or following a substantially gainful occupation. In sum, the evidence of record shows that the Veteran was not 65 years old prior to September 15, 2019 and was not permanently and totally disabled as due to nonservice-connected disabilities. Accordingly, the Board finds that the claim of entitlement to nonservice-connection pension for the period prior to September 15, 2019 must be denied. The Board need not make a determination as to whether the Veteran met the income requirements for entitlement to a pension for the period prior to September 15, 2019, as the evidence of the Veteran’s age and level of disability are dispositive. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to nonservice-connected pension, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to nonservice-connected pension benefits from September 15, 2019 For the period from September 15, 2019, the Veteran meets the age eligibility requirement for nonservice-connected pension benefits; thus, the question turns to his eligibility based upon net worth and annual income. Basic entitlement to pension exists if, among other things, the claimant’s income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). 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. 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) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For purposes of calculating pension benefits, 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)(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 surviving spouse received no reimbursement, 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. For the purpose of determining initial entitlement or 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 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, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273(b)(2). The applicable MAPR for a Veteran with no dependents is $13,535, effective December 1, 2018. Pursuant to the February 2019 Board remand, the Veteran was requested to submit a VA Form 21-0516 (Eligibility Verification Report) and VA Form 21-8416 (Medical Expense Report) for the period on appeal from January 1, 2019 through December 31, 2019. In his eligibility verification report covering January 1, 2019 through December 31, 2019, the Veteran reported receiving income from Social Security Administration (SSA) benefits in the amount of $1,988.00 per month. He reported no other assets nor did he report any unreimbursed medical expenses or other excludable income which could be used to reduce his annual income. An April 2019 SSA Inquiry shows that monthly benefits were paid at a rate of $1,937.00, from December 2018; therefore, the Veteran had an annualized income of $23,244.00 annually, which exceeded the MAPR for a Veteran with no dependents. The applicable MAPR for a Veteran with no dependents is $13,752, effective December 1, 2019. An April 2020 SSA Inquiry shows that monthly benefits were paid at a rate of $1,968.60, from December 2019; therefore, the Veteran had an annualized income of $23,623.20. Unreimbursed medical expenses included monthly deductions of supplemental medical insurance (SMI) premiums of $144.60, which totaled $1,735.20 annually. When reduced by five percent of the MAPR, the allowable medical expenses are $1,048.20. Accordingly, the Veteran’s countable income was $22,575.00, which exceeded the MAPR for a Veteran with a dependent spouse. Accordingly, the undisputed facts in this case establish the Veteran’s countable annual income exceeds the MAPR for a Veteran with no dependents for the period on appeal from September 15, 2019. As such, the claim of entitlement to nonservice-connected pension benefits from September 15, 2019 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, Associate 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.