Citation Nr: 21020966 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-24 795 DATE: April 8, 2021 ORDER The issue of whether the Veteran’s income is a bar to payment of nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has failed to provide the necessary evidence to establish whether income is a bar to payment of nonservice-connected pension benefits. CONCLUSION OF LAW 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, 3.277. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2017 and December 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a July 2020 decision, the Board found that the pension issue on appeal is whether the Veteran’s income is a bar to payment of nonservice-connected pension benefits. The July 2020 decision also reopened the issue of service connection for bilateral hearing loss and remanded for additional development the issues of service connection bilateral hearing loss and prostate cancer as well as the pension claim decided herein. Thereafter, in a November 2020 rating decision, the RO granted service connection for prostate cancer, which constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Id. The issue of whether the Veteran’s income is a bar to payment of nonservice-connected 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 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 Administration (SSA) 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). 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 Veteran filed a claim of entitlement to nonservice-connected pension benefits in April 2011. In August 2016 and October 2016, information regarding SSA income for the Veteran and his spouse was associated with the file. In a January 2017 rating decision, the Pension Management Center found that the Veteran had been prevented from obtaining and maintaining gainful employment due to disability and granted basic eligibility to nonservice-connected pension benefits effective April 4, 2011. In order to determine whether the Veteran’s income is a bar to receipt of pension benefits, a February 2017 VA development letter requested that the Veteran’s complete VA Improved Pension Eligibility Verification and Medical Expense Reports. In March 2017, the Veteran submitted VA Improved Pension Eligibility Verification Reports for himself and his spouse for the periods from April 2011 to March 2017, which contain the Veteran’s reports that he had been in receipt of SSA income and other income. During the March 2020 Board hearing, the Veteran’s spouse acknowledged that the Veteran had some sporadic work history that has not been reported and that the Veteran needs to obtain W2 forms to provide accurate income figures. In the July 2020 decision, the Board found that the evidence of record is not sufficient to decide this claim due to inconsistencies with respect the Veteran’s household income and in light of missing information with respect to the Veteran’s unreimbursed medical expenses during the appeal period. The Board remanded the claim in order to verify the Veteran’s household income and unreimbursed medical expenses from 2011 to the present. In an August 2020 correspondence, the Veteran was asked to complete and return updated information with respect to household income and unreimbursed medical expenses for the annualized periods since April 2011 and to include proof of income and expense information. In a second August 2020 correspondence, the Veteran was mailed forms to provide household income and unreimbursed medical expenses. However, the Veteran did not respond to these letters or provide any income or medical expense information or documentation. The Board finds that substantial compliance with the prior remands has been accomplished with regard to the pension claim. 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). In this case, the Veteran was advised of the need to submit additional income and medical expense information and documentation and provided the appropriate forms for doing so. 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 also finds that the Veteran has failed to provide the necessary evidence to establish whether income is a bar to payment of nonservice-connected pension benefits. In this regard, during the March 2020 Board hearing, the Veteran’s spouse acknowledged that the evidence of record does not accurately reflect all income for the appeal period. The Veteran has been asked multiple times to provide complete, accurate income statements for the appeal period and sent the appropriate forms for submitting this information, but has failed to do so. He was given another opportunity to provide complete income information pursuant to the July 2020 Board remand. However, he did not respond to the subsequent request to provide the necessary information. In the absence of accurate income information, eligibility to pension benefits cannot be determined. 38 C.F.R. § 3.23. A claimant bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (Fed. Cir. 2009). As the Veteran has not provided all necessary information to determine eligibility for nonservice-connected pension benefits, the claim is denied. 38 C.F.R. § 3.277. REASONS FOR REMAND Service connection for bilateral hearing loss. The Veteran is seeking service connection for hearing loss. He was afforded an audiology examination pursuant to a prior service connection claim in May 2013. The examiner noted that audiometric testing could not be obtained due to the presence of cerumen bilaterally and recommended that the Veteran return for an audiogram following medical follow-up for cerumen management. During March 2020 Board hearing, the Veteran reported that his hearing had significantly worsened since the May 2013 VA examination. Pursuant to the July 2020 Board remand, the Veteran was afforded another audiology examination in November 2020. The examiner concluded that the Veteran’s hearing loss is at least as likely as not related to in-service noise exposure from serving as an airman apprentice and resultant exposure to high volume noise from aircraft equipment and the aerodynamic interaction between ambient air and aircraft surfaces. However, the examiner was unable to perform audiometric testing due to severe wax impaction in the Veteran’s ears. In addition, the Veteran’s VA treatment records do not include audiometric findings. Therefore, a remand is required to determine if the Veteran has hearing loss for VA purposes. See 38 C.F.R. § 3.385; see also Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After the above records development is completed, schedule the Veteran for a VA examination to determine if he has bilateral hearing loss for VA purposes. The examiner should perform all indicated tests to assess the Veteran’s hearing loss and report the results. The examiner should remove all auditory obstructions prior to performing testing. The examiner should also report whether the Veteran has a bilateral hearing loss disability. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.