Citation Nr: 21024752 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 12-14 409 DATE: April 26, 2021 ORDER Entitlement to nonservice-connected pension prior to September 7, 2010 is denied. Entitlement to nonservice-connected pension from September 7, 2010 is denied. FINDINGS OF FACT 1. Prior to September 7, 2010, the Veteran was not 65 years of age or older and was not permanently and totally disabled from nonservice-connected disabilities. 2. From September 7, 2010, the Veteran’s countable income exceeded the applicable maximum annual pension rate (MAPR) for a veteran with no dependents. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment of nonservice-connected pension benefits have not been met prior to September 7, 2010. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.102, 3.3. 2. The criteria for entitlement to payment of nonservice-connected pension benefits based on the Veteran’s countable income have not been met from September 7, 2010. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to December 1967. 1. Entitlement to nonservice-connected pension prior to September 7, 2010 VA nonservice-connected pension benefits are payable to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B). The Veteran served on active duty in the United States Army from December 1965 to December 1967, which includes service during the Vietnam War Era. 38 C.F.R. § 3.2. Thus, he meets the requirement of having service during a recognized period of war. Moreover, the Veteran’s DD-214 shows his date of birth as September 7, 1945; thus, he turned 65 on September 7, 2010. Therefore, prior to September 7, 2010, the evidence must show that he was permanently and totally disabled due to his nonservice-connected disabilities. As a preliminary matter, an August 2019 SSA Profile lists a disability onset date of June 30, 1991, thereby indicating the Veteran may have been in receipt of SSA benefits based on disability since that time. However, after careful review of record, the Board notes that this date appears to be based on the Veteran’s self-report, or alleged onset of disability. The evidence of record supports the finding that the Veteran initially filed his application for SSA disability benefits in March 2010. The Social Security Administration denied entitlement to Supplemental Security Income payments by a July 2010 determination, finding that his condition was not severe enough to prevent him from working. See Medical Treatment Record – Furnished by SSA, dated November 21, 2019. Turning to the evidence of record, for the period on appeal prior to September 7, 2010, the evidence of record is negative for any indication that the Veteran was permanently and totally disabled, to include as due to nonservice-connected disabilities. There is no evidence that the Veteran received Social Security Administration disability benefits or was a patient in a nursing home. Moreover, the evidence of record does not demonstrate that the Veteran was unemployable or had a disability that would render the average person unable to follow a substantially gainful occupation. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the “average person” test. See 38 U.S.C. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that the evidence of record does not demonstrate that the Veteran meets any of those criteria. Alternatively, all veterans who are basically eligible for pension benefits 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. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16. 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 or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran’s disabilities render him or her unemployable. See 38 C.F.R. § 4.17. Here, there is no competent and credible evidence of record which states that the Veteran was permanently and totally disabled due to a nonservice-connected disability prior to September 7, 2010. The Board acknowledges that the Veteran has nonservice-connected disabilities; however, they have not been shown by competent credible evidence to be permanently and totally disabling. The evidence of record reflects that the Veteran obtained a GED in 2004. At the time of his January 2011 VA examination, the Veteran reported part-time employment with a cleaning service for the past one to two years performing cleaning services in office buildings at night. Moreover, a May 2012 VA Form 21-0820 (Report of General Information) reflects that the Veteran earned an average of $1,000.00 per month performing cleaning services. Thus, given the foregoing, the Veteran was not prevented from maintaining gainful employment for the period on appeal prior to September 7, 2010. In sum, the evidence of record shows that the Veteran was not 65 years old prior to September 7, 2010 and was not permanently and totally disabled as due to nonservice-connected disabilities. Accordingly, the Board finds that the claim of entitlement to nonservice-connection pension for the period prior to September 7, 2010 must be denied. The Board need not make a determination as to whether the Veteran met the income requirements for entitlement to a pension for the period prior to September 7, 2010, as the evidence of the Veteran’s age and level of disability are dispositive. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to nonservice-connected pension, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to nonservice-connected pension from September 7, 2010 For the period from September 7, 2010, the Veteran meets the age eligibility requirement; thus, the question turns to his eligibility based on his countable income. 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. 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) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were “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. However, medical insurance premiums themselves, as well as the Medicare deduction, 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, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273(b)(2). The applicable MAPR for a Veteran with no dependents is $11,830.00, effective December 1, 2009. This MAPR continued until it was changed effective December 1, 2012. See 38 C.F.R. § 3.23(a). In his March 2010 VA Form 21-526 (Veteran’s Application for Compensation and/or Pension), the Veteran reported receiving no income from any source. As to net worth, he reported having $10.00 in cash accounts. However, in a May 2012 VA Form 21-0820 (Report of General Information), reported earning an average of $1,000.00 per month performing cleaning services. His earnings increased to $850.00 biweekly in June 2011 when he began working at a safe haven for veterans. A January 2021 SSA correspondence shows that entitlement to SSA retirement benefits was established in December 2010. Monthly benefits were paid at a rate of $408.00 per month. The Veteran did not report any unreimbursed medical expenses to reduce his countable income. Accordingly, the Veteran’s annual countable income exceeded the MAPR for a Veteran with no dependents. Pursuant to the January 2020 Board remand, VA sent the Veteran a duty to assist letter in April 2020, requesting income and net worth information, information pertaining to any unreimbursed medical expenses, and just debts, particularly a reported $3 million restitution being paid to the federal government, for the relevant period on appeal. In the January 2021 supplemental statement of the case (SSOC), the denial of the Veteran’s claim was continued, as he failed to respond to VA’s April 2020 request for information. Accordingly, a determination could not be made as to his eligibility for pension benefits. As a condition of granting or continuing pension, VA may require from any person who is 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. 38 C.F.R. § 3.277(a). Where the law places the burden on the veteran to produce evidence necessary for VA to determine whether an award of benefits may be properly made but does not specifically identify the kind of evidence required to establish entitlement, it is left to VA’s discretion on a case-by-case basis to determine what information and evidence is needed and it is not an arbitrary and capricious exercise of that discretion to require the claimant to submit the requested information and evidence prior to adjudicating the application for benefits. See Caranto v. Brown, 4 Vet. App. 516, 519 (1993). The Board notes that, to date, additional information regarding the Veteran’s income, net worth, unreimbursed medical expenses, and just debts have not been received. Accordingly, the Veteran’s failure to provide the requested information makes it impossible for VA to further determine his pension eligibility. The Board advises the Veteran that the duty to assist is a two-way street and the Veteran had a duty to aid VA in developing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In consideration of the foregoing, based on the record before it, the Board must deny the Veteran’s claim for nonservice-connected disability pension benefits. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tracy O. Joseph, 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.