Citation Nr: 21010354 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-30 213 DATE: February 24, 2021 ORDER Entitlement to VA non-service-connected disability pension benefits from August 12, 2010, to December 31, 2011, is denied. Entitlement to VA non-service-connected disability pension benefits from January 1, 2012, to January 31, 2015, is granted. Entitlement to VA non-service-connected disability pension benefits as of February 1, 2015, and thereafter is denied FINDINGS OF FACT 1. For the period from August 12, 2010, to December 31, 2011, the Veteran’s countable family income exceeded the applicable maximum annual pension rates. 2. For the period from January 1, 2012, to January 31, 2015, the Veteran’s countable family income did not exceed the applicable maximum annual pension rates. 3. As of February 1, 2015, and thereafter, the Veteran’s countable family income exceeded the applicable maximum annual pension rates. CONCLUSIONS OF LAW 1. For the period from August 12, 2010, to December 31, 2011, the criteria for entitlement to 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. 2. For the period from January 1, 2012, to January 31, 2015, the criteria for entitlement to payment of non-service-connected pension benefits have been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. 3. As of February 1, 2015, the criteria for entitlement to 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from September 1971 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s February 2012 decision. The Veteran testified at a RO hearing before a Decision Review Officer in April 2014. He also testified before the undersigned Veterans Law Judge at a Board videoconference hearing held in July 2017. Transcripts of these hearings are associated with the claims file. Thereafter, in October 2017, January 2020 and August 2020, the Board remanded the Veteran’s claim for non-service-connected disability pension benefits for further development. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran’s claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that the Veteran’s appeal previously contained claims for service connection for posttraumatic stress disorder and a right clavicle disorder. However, Board issued a final decision on those claims in January 2020. Entitlement to VA non-service-connected disability pension benefits The Veteran has been seeking entitlement to VA non-service-connected disability pension benefits since his August 2010 application. His claim was initially denied on the basis that he did not have a permanent and total disability. However, in October 2017, the Board remanded his claim for development of records from the Social Security Administration (SSA) because of evidence indicating the Veteran was receiving disability benefits therefrom. A veteran who has been found disabled by the SSA will be considered to have a permanent and total disability for purposes of eligibility for VA non-service-connected disability pension benefits. See 38 C.F.R. § 3.3(a)(3)(vi)(B)(2). SSA records obtained in September 2018 confirm that the Veteran was awarded Social Security Disability Insurance (SSDI) benefits in March 2011 with a disability onset date of December 11, 2009. The Board again remanded this claim in January 2020 for compliance with the prior remand instructions. However, based on the SSA evidence showing a finding of disability in 2009 (prior to when his claim for pension was filed), the Veteran is determined to have been permanently and totally disabled at the time he filed his application in August 2010. Therefore, the RO sent the Veteran a duty to assist letter in May 2020 seeking information and evidence from him relating to his dependents and his family’s income, net worth and medical expenses. The Veteran failed to respond, and his appeal was returned to the Board. In August 2020, the Board remanded again but for the Veteran to be given another opportunity to submit the information and evidence asked for in the May 2020 duty to assist letter. Such information and evidence was requested from the Veteran in a September 2020 duty to assist letter. Although he did not initially respond appropriately, the Veteran submitted the requested information regarding his dependents and income in November 2020. The Board notes that the Veteran’s November 2020 submission is not in complete compliance with the March and September 2020 requests as he submitted his information on VA Form 5655, Financial Status Report, rather than on the forms requested, i.e., VA Form 21P-0517, Eligibility Verification Report, and VA Form 21P-8146, Medical Expense Report, which are the proper forms to report a pension claimant’s income, net worth and medical expenses. Nevertheless, the RO accepted the Veteran’s submission of the VA Form 5655 and adjudicated his claim for pension finding that his countable family income exceeded the maximum income allowed for all periods since August 2010. Therefore, the Board no longer needs to consider whether the Veteran has a permanent and total disability, but whether he meets the income and net worth requirements to be entitled to payment of VA pension benefits. 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. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 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, 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). For purposes of calculating pension benefits, 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 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 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). Initially, the Board notes that the Veteran did not report significant assets owned by him and his family. Consequently, net worth does not appear to be a bar to benefits. However, the Board must still consider his family’s income to determine his entitlement to pension benefits. The Board has reviewed the Veteran’s report of his family income on the VA Form 5655s he submitted in November 2020 along with information obtained from SSA. The Board notes that the amounts reported by the Veteran, along with when benefits were first received, is not consistent with the information from the SSA. The following chart shows the differences between what the Veteran reported was his and his spouse’s monthly benefits and what the SSA says they received. Veteran’s reported Spouse’s reported Per SSA for Veteran Per SSA for spouse 9/1/2010 1,000.00 1/1/2011 1,000.00 6/1/2011 1,000.00 1,021.00 1/1/2012 1,000.00 550.00 1,058.00 1/1/2013 1,000.00 550.00 1,076.00 1/1/2014 1,000.00 550.00 1,092.00 1/1/2015 1,010.00 600.00 1,111.00 2/1/2015 1,010.00 600.00 1,111.00 884.00 4/1/2015 1,010.00 600.00 1,111.00 883.90 1/1/2016 1,020.00 650.00 1,111.00 883.90 1/1/2017 1,020.00 700.00 1,114.00 887.00 1/1/2018 1,187.00 700.00 1,136.00 904.00 1/1/2019 1,187.00 700.00 1,168.00 929.50 12/1/2019 1,187.00 700.00 1,168.00 930.00 1/1/2020 1,187.00 700.00 1,186.00 945.00 The SSA also reported that the Veteran and his spouse received lump sum payments of $6,840.71 in May 2011 and $19,459.00 in January 2015, respectively, which the Veteran did not report receiving on the VA Form 5655s. However, such payments are considered income and should be counted. See 38 C.F.R. § 3.271. In calculating the Veteran’s family’s income, the RO did not count any of the Veteran’s SSA benefits until December 1, 2012 and, therefore, did not count the monthly benefits or the lump sum payment he received in 2011. In addition, the RO counted what the Veteran reported for his spouse’s SSA benefits starting January 1, 2012 despite the SSA records indicating she did not receive payment until January 2015. The RO also counted the lump sum payment of $19,459.00 in received in January 2015. However, the Board finds that the three years the spouse’s benefits from 2012 through 2014, which totals $19,800.00 as reported by the Veteran, and the lump sum payment of $19,459.00 are too similar to count both. Therefore, it is likely the RO double counted the spouse’s SSA benefits. Hence, based on the inconsistencies between the Veteran’s reported income and the SSA records, the Board finds the more credible and probative evidence of the Veteran’s and his spouse’s SSA benefits are the SSA reports and the Board will use those reports to calculate the Veteran’s countable family income. To that end, the following table sets forth the Board’s calculations of the Veteran’s family annual income. The Board notes that it did not include the Veteran’s minor child in the below calculations as he is not reported to have had any income. Veteran's Monthly Income Spouse's Monthly Income Total Monthly Income Annuali-zation of Monthly Income Lump Sum SSA Payments Annual Income 9/1/2010 0.00 1,720.00 1,720.00 20,640.00 0.00 20,640.00 1/1/2011 0.00 1,720.00 1,720.00 20,640.00 0.00 20,640.00 6/1/2011 1,021.00 1,720.00 2,741.00 32,892.00 6,840.71 39,732.71 1/1/2012 1,058.00 0.00 1,058.00 12,696.00 0.00 12,696.00 1/1/2013 1,076.00 0.00 1,076.00 12,912.00 0.00 12,912.00 1/1/2014 1,092.00 0.00 1,092.00 13,104.00 0.00 13,104.00 1/1/2015 1,111.00 0.00 1,111.00 13,332.00 0.00 13,332.00 2/1/2015 1,111.00 884.00 1,995.00 23,940.00 19,459.00 43,399.00 4/1/2015 1,111.00 883.90 1,994.90 23,938.80 0.00 23,938.80 1/1/2016 1,111.00 883.90 1,994.90 23,938.80 0.00 23,938.80 1/1/2017 1,114.00 887.00 2,001.00 24,012.00 0.00 24,012.00 1/1/2018 1,136.00 904.00 2,040.00 24,480.00 0.00 24,480.00 1/1/2019 1,168.00 929.50 2,097.50 25,170.00 0.00 25,170.00 12/1/2019 1,168.00 930.00 2,098.00 25,176.00 0.00 25,176.00 1/1//2020 1,186.00 945.00 2,131.00 25,572.00 0.00 25,572.00 In addition, the Veteran did not report having any unreimbursed medical expenses to offset his income. However, information from the SSA indicates that his spouse paid Medicare Part B and D premiums from February 2015 to May 2019. However, in June 2019, the SSA indicates the state began paying her premiums. Thus, the Board will consider these expenses. In addition, although the Veteran did not pay any premiums, for some reason in February 2015, SSA deducted a premium of $104.90 from his benefit. A claimant need not claim such medical expenses for them to be allowed so long as they are shown to be paid by the SSA. Therefore, the Board will allow such medical expenses to be deduced from the Veteran’s family annual income insofar as they exceed the five percent of MAPR as required by regulation. The below chart sets forth the Board’s calculation. Year Monthly Premium Annual Premium 5% of MAPR Allowable Medical Expenses 2015 104.90 1,258.80 843.00 416.00 2016 104.90 1,258.80 843.00 416.00 2017 varied 1,406.00 845.00 562.00 2018 125.00 1.500.00 862.00 638.00 2019 135.50 677.50 (January-May) 886.00 0.00 2020 0.00 0.00 0.00 Finally, regarding the Veteran’s dependents, he inconsistently reported his marital status as noted by the RO. However, the Veteran’s last report with the November 2020 submission of evidence was that he has remained married to his spouse but filed for divorce in October 2020, which he expected to be finalized in December 2020. To date, the Veteran has not submitted evidence indicating his divorce has been finalized. Therefore, the Board will consider his as a dependent at least through 2020. In addition, the Veteran initially reported his stepson as a dependent. Although the Veteran has not submitted a birth certificate for this individual, on his initial application he reported that his stepson was born in September 1993. Therefore, his stepson turned 18 years old in September 2011. Although the Veteran reported that his stepson moved out of his house in August 2012, he has not certified that his stepson remained in school after he turned age 18 as requested. The RO removed the stepson as a dependent in 2013. However, given he turned 18 in 2011 and it is not confirmed that he continued in school thereafter, the Board finds that he should be removed from the Veteran’s award as of October 1, 2012. Based on the above findings, the Board calculates the Veteran’s pension entitlement as follows: ANNUAL INCOME MEDICAL EXPENSES COUNTABLE INCOME MAPR MAPR-COUNTABLE INCOME 9/1/2010 20,640.00 20,640.00 17,513.00 (3,127.00) 1/1/2011 20,640.00 20,640.00 17,513.00 (3,127.00) 6/1/2011 39,732.71 39,732.00 15,493.00 (22,219.71) 1/1/2012 12,696.00 12,696.00 16,051.00 3,355.00 10/1/2012 12,696.00 12,696.00 15,493.00 2,797.00 1/1/2013 12,912.00 12,912.00 16,324.00 3,412.00 1/1/2014 13,104.00 13,104.00 16,569.00 3,465.00 1/1/2015 13,332.00 416.00 12,915.00 16,851.00 3,935.25 2/1/2015 43,399.00 416.00 42,983.00 16,851.00 (26,132.00) 4/1/2015 23,938.80 416.00 23,522.00 16,902.00 (6,671.80) 1/1/2016 3,938.80 416.25 23,522.00 17,241.00 (6,671.55) 1/1/2017 24,012.00 562.00 23,450.50 17,724.00 (6,548.50) 1/1/2018 24,480.00 638.00 23,842.05 18,008.00 (6,601.05) 1/1/2019 25,170.00 0.00 25,170.00 17,513.00 (7,929.00) 12/1/2019 25,176.00 0.00 25,176.00 17,513.00 (7,452.00) 1/1//2020 25,572.00 0.00 25,572.00 15,493.00 (7,564.00) Finally, for 2021, as noted, the Veteran has not provided confirmation of the finalization of his divorce in December 2020. However, in the last supplemental statement of the case (SSOC) issued in December 2020, the RO determined that, even without consideration of his spouse as a dependent, the Veteran’s countable income exceed the allowable MAPR for a single veteran with no dependents. The RO found that his SSA income of $14,424.00 exceeds the applicable MAPR of $13,931.00. The Board notes that the income figure used was carried over from 2020 as the Veteran’s 2021 SSA benefit was unknown at the time of the SSOC, although the MAPR is the amount that went into effect December 1, 2020. Hence, the Board finds that the Veteran’s actual SSA benefit for 2021, which would have been higher, still would exceed the maximum income he would be allowed. Based on the foregoing calculations, the Board finds that the Veteran is entitled to VA pension benefits from January 1, 2012 until January 31, 2015. However, for the periods prior to January 1, 2012 and as of February 1, 2015 and thereafter, the Board finds that the Veteran’s countable family income exceeded the allowable MAPR and, therefore, he is not entitled to VA pension benefits for those periods. (Continued on the next page)   Therefore, to the extent the Veteran’s countable family income does not exceed the allowable MAPRs for the period of January 1, 2012 to January 31, 2015, the Veteran’s appeal is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow, 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.