Citation Nr: 21016064 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-43 470 DATE: March 19, 2021 REMANDED Whether the Veteran’s reported tribal income is countable for purposes of payment of VA pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1970 to May 1972. This matter comes to the Board of Veterans’ Appeals (Board) from a January 2013 decision reducing the Veteran’s VA pension benefits due to an increase in tribal income. In December 2019, the Board remanded the matter for further development, to include obtaining verification from the Veteran as to the source of his tribal income. This case returned to the Board in June 2020. The Board provided the Veteran’s representative, the American Legion, two opportunities to submit a post-remand appellant brief. To date, the Board has not received a response. As such, the Board has proceeded with appellate review of the Veteran’s appeal.   Whether the Veteran’s reported tribal income is countable for purposes of payment of VA pension benefits is remanded. The Veteran maintains that the Settlement Act of 1990 prohibits calculating his annuity payments as income for purposes of his improved pension benefits. In support of his appeal, the Veteran submitted an April 2010 memorandum from the Department of Justice regarding the immunity of Seneca Nation Annuity and Disability Payments. The memorandum states that the Settlement Act of 1990 provided funds to acquire lands to increase the land base of the Seneca Nation. The Nation used a portion of these funds to purchase land which is then leased to the Nation’s gaming corporations. Lease payments are then segregated and distributed to the Nation’s members on a quarterly basis. According to 38 U.S.C. § 1744f(b), Indian Land Claims Settlements, Seneca Nation (New York) Land Claims Settlement, none of the payments, funds or distributions shall affect the eligibility of the Seneca nation or its members for, or be used as a basis for denying or reducing funds under, any Federal Program. According to 38 C.F.R. § 3.272(r)(2018), income of up to $2,000.00, per calendar year is excluded to an individual Indian from trust lands or restricted lands. The Board notes that in October 2018, VA updated the regulations pertaining to VA pension. Under the updated regulations, 38 C.F.R. § 3.272(t) provides for other statutory exclusions from income for VA pension purposes, with 38 C.F.R. § 3.279 listing these exclusions. 38 C.F.R. § 3.279(b)(1)-(7) pertains to payments made to Native Americans. As noted in the December 2019 Board remand, the Board is not disputing the immunity of Seneca Nation Annuity Payments pursuant to 38 U.S.C. § 1744f. However, there is nothing of record verifying the specific source of the Veteran’s tribal benefits and whether his payments are from funds appropriated pursuant to 38 U.S.C. § 1744f or to another regulation. Per the April 2010 Department of Justice letter, funds distributed pursuant to 38 U.S.C. § 1744f are segregated and distributed on a quarterly basis. On a February 2011 Improved Pension Eligibility Verification Report, the Veteran reported monthly benefits from the “Native American Annuity” and a yearly benefit from the “Native American Old Age Annuity.” On an August 2012 Improved Pension Eligibility Verification Report, the Veteran reported quarterly benefits from the “Seneca Nation Annuity” and monthly benefits from the “Seneca National Elder.” Thus, it is not clear whether the Veteran’s annuities, in total or in part, are from funds segregated and distributed pursuant to 38 U.S.C. § 1744f. The Board finds that a remand is warranted to provide the Veteran with an additional opportunity to provide verification that his monthly annuities, in total or in part, are from funds appropriated pursuant to 38 U.S.C. § 1744f, rather than under another regulation. The matter is REMANDED for the following actions: 1. Send the Veteran a letter asking that he provide verification that the specific annuities he receives, in total or in part, are from funds appropriated pursuant to 38 U.S.C. § 1744f. Such verification may take the form of a letter from the payer of the annuity, signed by an official of the entity which pays the annuity, certifying that the Veteran’s Seneca Nation and Seneca Nation Elder annuities are paid from funds appropriated pursuant to 38 U.S.C. § 1744f. Please notify the Veteran that this is a specific request for information on the payer of the annuities he receives and not a general request for the types of annuities excluded from countable income. The Veteran should be informed that he does not need to resubmit a copy of the April 2010 memorandum from the Department of Justice regarding the immunity of Seneca Nation Annuity and Disability Payments, as this does not inform VA of the source of funds used to pay his tribal benefits. 2. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.