Citation Nr: 21013919 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-32 351A DATE: March 10, 2021 ORDER Entitlement to VA non-service-connected disability pension benefits is denied. FINDINGS OF FACT 1. As of May 6, 2017, the Veteran has been rated as totally disabled due to individual unemployability because of service-connected disabilities, but the preponderance of the evidence is against finding that the Veteran’s disabilities precluded him from employment prior thereto. 2. The Veteran has not provided sufficient information and evidence relating to his dependents, income, net worth and medical expenses to determine his entitlement to VA non-service-connected disability pension benefits. CONCLUSIONS OF LAW 1. As of May 6, 2017, but no earlier, the criteria for determining the Veteran is permanently and totally disabled for purposes of establishing entitlement to non-service-connected disability pension benefits are met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 4.17 2. The criteria for entitlement to 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, 4.17. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from July 1978 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) July 2013 decision. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in November 2018. In November 2019, the Board remanded the Veteran’s claim. The development requested in the remand has been completed and, therefore, the Board may proceed to adjudicate the Veteran’s claim without prejudice to him. In the November 2019 decision, the Board also remanded the issues of entitlement to increased ratings for service-connected spondylolisthesis of the lumbosacral spine, radiculopathy of the right lower extremity and radiculopathy of the left lower extremity, as well as entitlement to a total disability rating based on individual unemployability (TDIU). These issues will be the subject of separate appellate decisions as they depend on the application of different laws and facts. Entitlement to VA non-service-connected disability pension benefits In January 2012, the Veteran applied for VA benefits to include non-service-connected disability pension benefits. The RO had denied entitlement to pension on the basis that the Veteran was not permanently and totally disabled. However, after the Board’s November 2019 remand, the RO developed for his income, net worth and medical expenses. Although the Veteran provided a response, it was inadequate and, therefore, the RO has denied his claim on the basis that he has failed to provide adequate information regarding his income, net worth and medical expenses. See June 2010 supplemental statement of the case (SSOC) and subsequent SSOCs. However, it does not appear that the RO made an actual determination as to the Veteran’s employability and, thus, the Board will address that element as well as the income/net worth requirements for entitlement to non-service-connected disability pension benefits. For VA pension purposes, all veterans who are basically eligible 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. 38 C.F.R. § 3.17. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). For the purpose of pension, the permanence of the percentage requirements of §4.16 is a requisite. 38 C.F.R. § 4.17. Generally, 38 C.F.R. § 4.16(a), provides that total disability ratings may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of disability provided that, if there is only one such disability, this disability is ratable at 60 percent or more; and that, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 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 and follow substantially gainful employment by reason of such disability. 38 C.F.R. § 4.17. Prior employment or unemployment status is immaterial if, in the judgment of the rating board, the veteran’s disabilities render him or her unemployable. Id. Marginal employment (for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration) will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment, is due to disability. Moreover, claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Veterans Service Center Manager or the Pension Management Center Manager under 38 C.F.R. § 3.321(b)(2). In a July 2020 rating decision, the Veteran was granted entitled to a TDIU effective May 6, 2017. As the Veteran has been found to be totally disabled due to his service-connected disabilities, which are considered along with his nonservice-connected disabilities for pension purposes, the Board finds the Veteran to be permanently and totally disabled for establishing entitlement to non-service-connected disability pension benefits as of the same date. The effective date of May 6, 2017 is based upon evidence from the Veteran’s last employer that he last worked on May 5, 2017. See July 2020 VA Form 21-4192. The Board acknowledges that the Veteran was unemployed from June 2011 until June 2014 but finds the evidence does not support a finding that he was precluded from employment due to his disabilities prior to May 2017. Moreover, the Board recognizes that the Veteran reported on a VA Form 21-8940 submitted in July 2020 that his last employment was from April 2013 to May 2016. Whereas, his employer reported on a VA Form 21-4192 that the Veteran was employed from June 2014 to May 2017. The Board finds the dates provided by the employer itself are the most reliable evidence as to when the dates of the Veteran’s last employment as such information is from a third party and derived from documentation of his employment rather than mere memory. At the November 2018 Board hearing, the Veteran was unclear about dates in general, but especially as to the dates of this employment, demonstrating the Veteran’s memory regarding dates to be unreliable. Moreover, the Veteran’s report of starting this job in April 2013 is inconsistent with the records from the Social Security Administration (SSA) showing he was unemployed at least through November 2013 when his claim was denied. Thus, the Board concludes that the Veteran last worked on May 5, 2017. The Veteran applied for disability benefits with the SSA in August 2012, which claim was denied multiple times including by an Administrative Law Judge (ALJ). Although the Veteran was found to be unable to return to his previous work as a maintenance worker, it was determined that he retained the residual functional capacity to perform a range of light work activities. Specifically, it was found that he retained the following capacity: occasionally lifting and/or carrying 50 pounds; frequently lifting and/or carrying 10 pounds; standing and/or walking 6 hours in an 8-hour workday; sitting 6 hours in an 8-hour workday; pushing and pulling unlimited except for the restrictions on lifting and carrying; occasionally climbing ramps and stairs, never climbing ladders, ropes or scaffolds; balancing frequently; occasionally stooping, kneeling, crouching and crawling; and avoiding concentrated exposure to extreme cold, extreme heat and hazards. The Veteran was also found to have visual limitations in that he had visual acuity bilaterally of 20/50 without glasses which may cause difficulty seeing small objects at a distance, but this may be correctible with glasses. See November 2013 SSA ALJ decision. The Board recognizes that it is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, while an SSA decision is not controlling for purposes of VA adjudication, it is “pertinent” to a veteran's claim. See Martin v. Brown, 4 Vet. App. 136, 140 (1993); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Thus, although SSA's determination is not dispositive of the Veteran's claim, it is evidence which must be considered. The Board finds this evidence highly probative as to the Veteran’s capacity to engage in a substantially gainful occupation from 2011 to 2013. Furthermore, the Veteran returned to full-time employment after the SSA finally denied his disability claim and retained that employment for another three years. Hence, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran has a permanently and total disability as of May 6, 2017, but not earlier. Having thus found, the Board must also address whether the Veteran meets the income and net worth criteria for entitlement to non-service-connected disability pension benefits. Unfortunately, as the Veteran has not provided sufficient information and evidence to support his claim, the Board cannot determine his pension entitlement. 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). 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). Generally, as a condition of granting or continuing pension, VA may require from 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, and of any spouse or child for whom the person is receiving or is to receive increased pension. 38 C.F.R. §§ 3.277(a). VA may require an individual who applies for or receives pension to, as a condition of receipt or continued receipt of benefits, furnish an eligibility verification report upon request. 38 C.F.R. §§ 3.277(c)(3). If VA requests that a claimant or beneficiary submit an eligibility verification report but he or she fails to do so within 60 days of the date of request, VA shall suspend the award or disallow the claim. 38 C.F.R. §§ 3.277(d). The RO’s duty to assist letter sent in May 2020 requested that the Veteran provide his income, net worth and medical expense information since he filed his application in January 2012 telling him to complete and return eligibility verification reports (EVR - VA Form 21P-0516) and medical expense reports (MER - VA Form 21P-8416) for each period specified. Although the Veteran responded in May 2020, he only provided one EVR and one MER. He did not submit a report for each individual period indicating in the letter as requested. The EVR does not specify for which period the information is provided. Even if it is assumed that he provided current information, the Veteran failed to provide EVRs for all previous years. Moreover, he provided inconsistent information as to his spouse’s income. In response to question 5, he indicated that his spouse had earned income within the last 12 months. However, he failed to report any earned income for his spouse under section 7B. In fact, he left that whole section blank as to his spouse. Therefore, he did not properly respond to the request for an EVR. In addition, although the Veteran provided a MER, he indicated it is for the period of March 8, 2019 to April 1, 2020. This was not a period requested on the duty to assist letter. Moreover, he did not submit any MERs for the previous periods. Furthermore, the Veteran’s reported information is incomplete. Although he identified his providers, he did not report any actual expenses. While VA has a statutory duty to assist the Veteran in obtaining evidence to substantiate her claims, the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Finally, the Board also finds there is a question as to the Veteran’s dependents as it appears that he has remarried. On his initial application filed in January 2012, he reported he was divorced. However, on the May 2020 EVR, he reported he was married and living with his spouse. He has not reported to VA that he remarried and, therefore, it is unknown when his marital status changed. VA must consider his spouse’s income when determining the Veteran’s pension entitlement. Without information as to when his marital status changed, the Board is unable to properly determine the Veteran’s countable family income. For the foregoing reasons, the Board concludes that the Veteran is not entitled to non-service-connected disability pension benefits. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.