Citation Nr: 21009520 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-28 451 DATE: February 22, 2021 ORDER VA properly adjusted the appellant’s VA survivor’s pension benefits as of August 1, 2018, and her appeal is denied. FINDINGS OF FACT 1. The appellant reported income in the amount of $0 prior to August 1, 2018 and was paid the maximum pension for that period. 2. The appellant began receiving Social Security benefits in June 2018 that were properly counted by VA beginning August 1, 2018. CONCLUSION OF LAW VA properly adjusted the appellant’s VA survivor’s pension benefits as of August 1, 2018. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from November 1972 to January 1975. He died in June 2014, and the appellant is the Veteran’s surviving spouse. The Board most recently remanded this issue in November 2020 to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to an increased monthly Survivor's pension benefit The appellant seeks entitlement to an increased amount in her death pension benefit. To determine the amount of an eligible surviving spouse’s monthly death pension benefit, VA must subtract the appellant’s annual countable income for pension purposes from the maximum annual pension rate. 38 C.F.R. § 3.21. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income) shall be included during the 12-month annualization period in which received, except for the exclusions set forth in 38 C.F.R. § 3.272, such as unreimbursed medical expenses. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. The appellant was initially awarded VA survivor’s pension benefits beginning in July 2014. See November 2014 Notification Letter. At that time, her counted income was $0. In June 2018, the Agency of Original Jurisdiction (AOJ) notified the appellant that the Social Security Administration (SSA) notified the AOJ that the appellant had been receiving $756 in monthly SSA benefits. The AOJ explained to the appellant that if she did not refute this information within 60 days, her VA survivor’s pension benefit would be reduced to $0. In an August 2018 decision, the AOJ revised the appellant’s pension award to count for the changes in her income. The AOJ counted the appellant’s SSA benefits of $756 per month, which is $9,072 annually. As a result of counting this income, the appellant’s monthly pension benefits were reduced to $0 from August 1, 2018. The appellant disagrees with the manner that the AOJ counted her earned income. She contends that she has eligible medical expenses that were not subtracted from her SSA benefits. See September 2018 medical expense report. She reported a $650 eye glass expense on August 15, 2018, $480 in doctor’s fees from August 1, 2018 to July 31, 2019, $2,600 in medicine costs from August 1, 2018 to July 31, 2019, and $1,296 in Medicare Part B premiums from August 1, 2018 to July 31, 2019. VA law provides that a pension is payable to surviving spouses of veterans of a period of war. Basic entitlement exists if the veteran served in the active military, naval, or air service for 90 days or more during a period of war, or who at the time of death was receiving compensation for a service-connected disability, subject to certain net worth and annual income requirements. 38 U.S.C. § 1541; 38 C.F.R. § 3.3. Specifically, the annual income of the surviving spouse must not exceed the maximum annual pension rate (MAPR) specified in 38 U.S.C. § 5312, increased from time to time as published in the Federal Register. 38 C.F.R. §§ 3.3, 3.23. 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). In March 2019 correspondence, the AOJ responded to the appellant’s contention that she had significant unreimbursed medical expenses, explaining that costs in doctor’s fees and medicine could not be counted because they covered overlapping years and exact dates were not provided. The remaining reported medical expenses were counted, and her new pension benefit was calculated at $42 monthly from August 2018 to December 2018, and $49 monthly for 2019. In April 2019 correspondence, the appellant responded that her medical expenses were recurrent from January 2018 to December 2018, and from January 2019 to December 2019. In July 2019 correspondence, the AOJ asked the appellant complete VA Form 21-8416, Medical Expense Report, to claim medical expenses in order to clarify her medical expenses and reduce the amount of her countable income. The appellant did not provide the requested information, including any information regarding unreimbursed medical expenses. As a result, the AOJ calculated the appellant’s annual Social Security Income as her sole income, without deducting the doctor’s fees and medicine costs. In February 2020 correspondence, the Agency of Original Jurisdiction (AOJ) notified the appellant that SSA notified the AOJ that the appellant did not pay for Medicare Part B premiums. The AOJ explained to the appellant that if she did not refute this information, her VA survivor’s pension benefit would be reduced to $0, because the $1,296.00 claimed Medicare Part B premium expenses would no longer be subtracted from her income. Pursuant to a February 2020 Board remand, the AOJ sent the appellant correspondence in March 2020 requesting information regarding her SSA benefit notices from 2017 to 2020, as well as notices from SSA regarding the amount she paid in Medicare Part B premiums. The AOJ also asked the appellant to complete a VA Form 21-8416, Medical Expense Report for the entire period on appeal. The appellant failed to respond, and a supplemental statement of the case was issued in April 2020, reaffirming the reduced pension rate. In May 2020 correspondence, the appellant reported that she was unable to gather the requested information due to the global pandemic and requested more time. Accordingly, the Board issued a remand in November 2020 in order to afford the appellant more time to submit information to support her contentions. In November 2020, the AOJ sent correspondence mirroring the March 2020 letter, allowing the appellant 60 days to respond. In November 2020, the appellant submitted a VA Form 21-8416 for the year 2017, which reported $1,296 in Medicare Part B expenses, $2,400 in medicine costs, $480 in doctor’s fees, $650 for eyeglasses, and $18,000 for caregiver expenses. She again reported a $650 eye glass expense on August 15, 2018, $480 in doctor’s fees from August 1, 2018 to July 31, 2019, $2,600 in medicine costs from August 1, 2018 to July 31, 2019, and $1,296 in Medicare Part B premiums from August 1, 2018 to July 31, 2019. The Board finds that the RO properly counted the appellant’s income and qualifying deductible expenses. Prior to August 1, 2018, the appellant was receiving the maximum pension benefit. The AOJ attempted to obtain the necessary information to compute the appellant’s pension from August 2018 on, but she failed to respond with the requested information. As a condition of granting or continuing pension, the VA may require from any person who is an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person. 38 C.F.R. § 3.277(a). Where the law places the burden on the claimant to produce evidence necessary for VA to determine whether an award of benefits may be properly made but does not specifically identify the kind of evidence required to establish entitlement, it is left to VA’s discretion on a case-by-case basis to determine what information and evidence is needed and it is not an arbitrary and capricious exercise of that discretion to require the claimant to submit the requested information and evidence prior to deciding the application for benefits. See Caranto v. Brown, 4 Vet. App. 516, 519 (1993). The Board finds that no adjustment should be made to the income included in the appellant’s countable income because of her failure to properly respond to several duty to assist letter’s request for information relating to her SSA benefit income and medical expenses. Although normally the Board would remand to obtain additional information and clarification from the appellant to resolve these questions, the appellant has shown that she is unlikely to respond to any requests for information as, not only did she fail to respond to the March 2020 and November 2020 requests for information regarding her income and medical expenses after the Board’s first and second remand, but the claims file demonstrates she also failed to respond to earlier requests for information in July 2019. She has been provided several opportunities to clarify whether she is making Medicare Part B premium payments, as well as more specific information regarding doctor’s fee and prescription fees so that those medical expenses may be deducted from her counted income. Hence, the Board believes further efforts to seek additional information from the appellant would be futile due to her failure to cooperate with VA’s previous attempts to obtain information and evidence from her. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (VA’s duty to assist is not a one-way street). The Board has reviewed the RO’s calculations in determining the appellant’s pension entitlement and does not find any error in them. Therefore, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.