Citation Nr: 21022752 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-42 614 DATE: April 19, 2021 ORDER The termination of nonservice-connected pension benefits effective January 1, 2004, until February 1, 2005, and effective January 1, 2006, was proper: the request for reinstatement is denied. FINDINGS OF FACT 1. The Veteran’s family income between January 1, 2004, and February 1, 2005, exceeded VA’s maximum annual pension limit for a veteran with two dependents. 2. The Veteran’s family income from January 1, 2006, exceeded VA’s maximum annual pension limit for a veteran with one dependent. CONCLUSION OF LAW Termination of nonservice-connected pension benefits effective January 1, 2004, until February 1, 2005, and effective January 1, 2006, due to excessive income was proper. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.23, 3.271, 3.272.  REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1969 to June 1971. This appeal arises from a July 2015 determination by the Pension Management Center. In accordance with the procedural history and determinations in this case, the Board has jurisdiction over the propriety of the termination of pension benefits. The Veteran presented testimony before the Board in July 2020. The hearing transcript is of record. Termination of Pension Benefits In pertinent part, the Veteran applied for pension benefits in December 2002. In a June 2003 decision, the RO awarded nonservice-connected pension benefits effective January 1, 2003. In April 2011, the RO awarded service connection for anxiety disorder effective August 21, 2003, rated 30 percent disabling. The Veteran continued to be paid pension benefits as the greater award. In May 2013, the Veteran was notified that his pension benefits were being terminated effective January 1, 2003, for failure to complete income and net worth information for his spouse and dates he was separated from his spouse. In June 2013, the Veteran was notified that since his pension had been terminated, and he had been previously awarded disability compensation benefits, the compensation benefits were reinstated effective August 21, 2003. In July 2013, the Veteran filed a notice of disagreement (NOD) with the termination and clarified that he and his spouse were never legally separated or divorced. In March 2014, the Veteran’s disability compensation benefits for service-connected anxiety disorder were increased to 100 percent effective October 25, 2011. In May 2017, the Veteran’s pension award was amended as follows: effective January 1, 2003, to December 31, 2003, pension benefits were deemed the greater benefit. Effective January 1, 2004, as the Veteran’s family income exceeded the maximum annual pension limit for a Veteran with two dependents his benefits were switched to 30 percent service-connected disability compensation. From February 1, 2005, to December 31, 2005, pension benefits were deemed the greater benefit. Effective January 1, 2006, when the Veteran’s family income exceeded the pension limit for a Veteran with one dependent his benefits were once again switched to 30 percent service-connected disability compensation. The Board notes effective October 25, 2011, the Veteran is in receipt of a 100 percent disability compensation rating, which is greater than the rate payable for nonservice-connected pension. As delineated above, the Veteran’s pension benefits were originally terminated effective January 1, 2003, for failure to complete income and net worth information for his spouse and clarify marital status. Subsequently, his pension benefits were amended and terminated from January 1, 2004, until February 1, 2005, and effective January 1, 2006, due to excessive family income. The Veteran does not dispute that he was married and not legally separated from his wife on January 1, 2004, or January 1, 2006, and remains married to her on this day. Pursuant to 38 U.S.C. § 1521 (a), nonservice-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his own willful misconduct. Entitlement exists if, among other things, the veteran’s income is not in excess of the applicable maximum allowable pension rate, and specified at 38 C.F.R. § 3.23, as changed periodically, and reported in the Federal Register. See 38 U.S.C. § 1521. The maximum rates for a veteran’s pension are reduced dollar for dollar by the amount of the countable annual income of a veteran, his spouse, and any dependent. 38 U.S.C. § 1521; 38 C.F.R. § 3.23 (d).  In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income which has been waived) are to be included except for listed exclusions. 38 U.S.C. § 1503 (a); 38 C.F.R. §§ 3.271, 3.272. Income from the Social Security is not specifically excluded, and is, therefore, included as countable income. Medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, may be excluded from an individual’s income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272 (g)(1)(iii).  Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); VA pension benefits; payments under Chapter 15 of Title 38, United States Code, including accrued pension benefits; reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner). 38 C.F.R. § 3.272.  The Veteran’s original entitlement was based on his having no income and no unreimbursed medical expenses.  See December 2002 Income-Net Worth and Employment Statement, September 2003 Eligibility Verification Report, and July 2004 Medical Expense Reports. While there was some conflicting information whether the Veteran was married and/or living with his spouse, the Veteran put the argument to rest in his June 2013 NOD wherein he clarified that he was married and never legally separated or divorced. On VA Form 21-0516-1, Improved Pension Eligibility Verification Reports, received in February 2013 the Veteran indicated that he received no income from January 1, 2004, through December 31, 2004, and his spouse received $17,204.00, annual income.  The Veteran also reported that he received no income from January 1, 2006, to December 31, 2006, and his spouse received $14, 992.00, annual income. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the veteran supports. 38 U.S.C. §§ 1521, 1522. The Veteran’s total family income as of January 1, 2004, was $17, 204.00, which exceeded the $14,647.00, MAPR for a Veteran with two dependents (his spouse and child). The Veteran did not report any unreimbursed medical expenses for this period. The Veteran’s total family income as of January 1, 2006, was $14,992.00, which exceed the $13, 855.00, MAPR for a Veteran with one dependent (spouse only after minor child adjustment). The Veteran also did not report any unreimbursed medical expenses for this period. As noted previously, the Veteran’s benefit was switched effective January 1, 2004, and again on January 1, 2006, to 30 percent service-connected compensation as it was the greater benefit and the Veteran did not specifically elect the lesser benefit.  38 C.F.R. § 3.151 (a). At this time, the Board recognizes the Veteran’s testimony presented at the July 2020 hearing and the statements and medical evidence submitted thereafter, addressing the Veteran’s psychiatric disorder. The Board acknowledges the Veteran’s testimony that he was owed money as a result of a waiver of overpayment created by termination of pension benefits by the Committee on Waiver and Compromise (COWC). However, in the July 2017 statement of the case, the COWC did not state that a waiver was granted in February 2013, but rather indicated that a debt no longer existed as a result of recoupment of the debt from retroactive compensation awards for the Veteran’s service-connected anxiety disorder. Additionally, with regard to the evidence received addressing the Veteran’s psychiatric disorder, the Board notes that the Veteran’s disability is rated as 100 percent disabling. Nonetheless, the evidence does not address the Veteran’s family income during the relevant time periods with regard to this claim. The Board only has jurisdiction over the propriety of the termination of pension benefits in this decision. Further, to the extent the Veteran asserts that he was provided erroneous information or that someone else completed his income forms, the Board notes that VA is not bound by erroneous advice dispensed by others. Nor is it bound by erroneous advice dispensed by its employees. McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (erroneous advice given by a government employee cannot be used to estop the government from denying benefits). Rather, the Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the chief legal officer of the Department. The Board has no authority to otherwise grant benefits. 38 U.S.C. § 7104(c). Here, the record establishes that the Veteran has not submitted any evidence to refute his countable income during the relevant time periods. As the Veteran’s family income was above the allowable limit between January 1, 2004, and February 1, 2005, and as of January 1, 2006, the termination of nonservice-connected pension benefits was proper.     The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.