Citation Nr: 21009093 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-28 574A DATE: February 18, 2021 ORDER Entitlement to non-service-connected pension benefits is denied. FINDING OF FACT For the period relevant to the claim, the Veteran’s countable income has exceeded the relevant maximum allowable pension rate (MAPR) for purposes of entitlement to non-service-connected pension benefits at the aid and attendance rate. CONCLUSION OF LAW The criteria for payment of non-service-connected pension benefits have not 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 Air Force from May 1946 to May 1949. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2016 decision issued by a Department of Veterans Affairs (VA) Pension Management Center. This case was previously before the Board in May and October 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See September 2020 supplemental statement of the case. Entitlement to non-service-connected pension benefits is denied. The Veteran seeks to establish entitlement to non-service-connected pension benefits at the aid and attendance rate. The record reflects that VA received his claim in March 2016. 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 satisfies the service criteria as set out in 38 C.F.R. § 3.3(a)(3)(i) based on more than 90 days of active service during the World War II period, which is defined as running from December 7, 1941 to December 31, 1946. See also 38 U.S.C. § 101; 38 C.F.R. § 3.2. The question for the Board is whether, for the relevant 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), and that he was seeking non-service-connected pension benefits at the aid and attendance rate. At the time of the Veteran’s claim in March 2016, for non-service-connected pension purposes, the MAPR for a Veteran with one dependent at the aid and attendance rate was $25,448. See Pension Rate Tables, effective December 1, 2014, available at https://www.benefits.va.gov/PENSION/rates_veteran_pen14.asp (accessed on February 17, 2021). The MAPR was increased to $25,525, effective December 1, 2016; to $26,036, effective December 1, 2017; to $26,766, effective December 1, 2018; to $27,195, effective December 1, 2019; and to $27,549, effective December 1, 2020. Following review of the record, the Board finds that the preponderance of the evidence is against the claim. On his March 2017 VA Form 21-527EZ, the Veteran reported that he was in receipt of Social Security Administration (SSA) income of $1,785 per month ($21,420 per year), and that his spouse was in receipt of SSA income of $809 per month ($9,708 per year). However, a September 2020 SSA inquiry report shows that the Veteran’s SSA income was $1,782.90 per month ($21,394.80 per year) effective December 2015, $1,788 per month ($21,456 per year) effective December 2016, $1,824 per month ($21,888 per year) effective December 2017, $1,874.50 per month ($22,494 per year) effective December 2018, and $1,904.60 per month ($22,855.20 per year) effective December 2019. A separate September 2020 SSA inquiry report noted that his spouse’s SSA income was $809.80 per month ($9,717.60 per year) effective December 2015, $809 per month ($9,708 per year) effective October 2016, $812 per month ($9,744 per year) effective December 2016, $828 per month ($9,936 per year) effective December 2017, $851 per month ($10,212 per year) effective December 2018, $851.50 per month ($10,218 per year) effective September 2019, and $864.60 per month ($10,375.20 per year) effective December 2019. Given the minor discrepancy between the amounts reported by the Veteran on his March 2017 VA Form 21-527EZ and the amounts reported by SSA, the Board will use the gross amounts as reported by SSA. Using those figures, during the relevant period on appeal, the Veteran’s total annualized household income was $31,112.40 effective March 2016, $31,102.80 effective October 2016, $31,200 effective December 2016, $31,824 effective December 2017, $32,706 effective December 2018, $32,712 effective September 2019, and $33,230.40 effective December 2019. Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. The MAPR, effective December 1, 2015, for a Veteran with one dependent at the aid and attendance rate was $25,448, and 5 percent of that amount is $1,272.40. Therefore, in calculating the Veteran’s countable expenses, only unreimbursed medical expenses in excess of $1,272.40 can be considered. In this case, with regard to the annualized period from March 2016, the record shows that the Veteran had unreimbursed medical expenses totalling $2,528.40. A June 2016 SSA inquiry report shows that the Veteran incurred Medicare Part B premiums of $104.90 per month ($1,258.80 per year). Another June 2016 SSA inquiry report shows that the Veteran’s spouse incurred Medicare Part B premiums of $105.80 per month ($1,269.60 per year). On his March 2017 VA Form 21-527EZ, the Veteran also reported unreimbursed medical expenses of $2,800; however, these expenses cannot be used to reduce the Veteran’s countable income because they were incurred prior to the filing of his claim in March 2016. Accordingly, total unreimbursed medical expenses for the annualized period from March 2016 were $2,528.40, which includes $1,258.80 in Medicare Part B premiums for the Veteran and $1,269.60 in Medicare Part B premiums for the Veteran’s spouse. Deducting the $1,272.40 (5 percent of MAPR) from $2,528.40 (total unreimbursed expenses for the annualization period from March 2016) results in $1,256 in deductible unreimbursed expenses for the annualization period from March 2016. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $31,112.40 per year for the annualization period from March 2016, the resulting countable income is $29,856.40, which is higher than the relevant MAPR amount of $25,448. The same sort of analysis applies to subsequent annualization periods (from October 2016) and results in countable income in excess of the relevant MAPR amount. The Veteran has not provided any additional income or net worth information or evidence and has not provided any evidence of eligible unreimbursed medical expenses or any other expenses that may be deducted from his income for purposes of calculating his countable income for non-service-connected disability pension purposes. Based on the foregoing, the Board finds that, for the initial and subsequent annualization periods pertinent to this appeal, the preponderance of the evidence establishes that the Veteran’s countable income has exceeded the relevant MAPR. Accordingly, as he has not met the annual income requirement set forth in 38 C.F.R. § 3.3, payment of non-service-connected pension benefits cannot be made. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.