Citation Nr: 21024872 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 19-01 368 DATE: April 26, 2021 ORDER The decision to reduce the appellant’s non-service-connected pension benefits effective June 1, 2018 was proper; the appeal is denied. FINDING OF FACT For the annualization period from June 1, 2018, the maximum annual pension rate (MAPR) that applied to a veteran with no dependents exceeded the appellant’s annualized income by approximately $5,318. CONCLUSION OF LAW The decision to reduce the appellant’s non-service-connected pension benefits effective June 1, 2018 was proper. 38 U.S.C. §§ 101, 1503, 1541; 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.271, 3.272, 3.274, 3.275. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the United States Marine Corps Reserve, to include a period of active duty for training from November 1967 to June 1968. His decorations include the M-14 Rifle Expert Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 determination issued by a Department of Veterans Affairs (VA) Regional Office, which informed the appellant that his non-service-connected pension benefits were being reduced effective June 1, 2018. The appellant appealed that decision. See June 2018 VA Form 21-0958. Subsequently, a December 2018 notification letter informed the appellant of the reduction of his pension benefits beginning November 1, 2013. He did not appeal that decision. Therefore, the Board does not have jurisdiction to consider the propriety of the reduction of the appellant’s pension benefits from November 2013 to May 2018. In September 2019 and April 2020, the Board remanded the issue currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See September 2020 supplemental statement of the case. The decision to reduce the appellant’s non-service-connected pension benefits effective June 1, 2018 was proper. The appellant asserts that VA incorrectly adjusted his non-service-connected pension benefits effective June 1, 2018. Pursuant to 38 U.S.C. § 1521(a), non-service-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of his own willful misconduct. A veteran is entitled to pension only if his income is not in excess of the applicable maximum annual pension rate (MAPR), as specified at 38 C.F.R. § 3.23 and changed periodically, as 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 income of a veteran, his spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). Unreimbursed medical expenses reduce countable income for VA pension purposes. Unreimbursed medical expenses in excess of five percent of the MAPR, 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 record reflects that the appellant had no dependents during the period at issue. As of December 2017, for non-service-connected pension purposes, the MAPR for a veteran with no dependents was $13,166. See Pension Rate Tables, effective December 1, 2016, available at https://www.va.gov/pension/veterans-pension-rates/past-rates-2018/ (accessed on April 23, 2021). For the annualization period from June 1, 2018, the appellant had Social Security disability income of $654 per month ($7,848 per year). See September 2020 Social Security Administration (SSA) inquiry report; September 2020 VA Form 21-0820. Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. In January 2019, the appellant submitted a December 2018 bill showing a total amount due of $725 for services provided by Cascade Behavioral Hospital. However, it is unclear from the record when payment of these expenses was made. Pursuant to the September 2019 Board remand, an October 2019 VA letter requested clarification from the appellant as to when the above-referenced billed amount was paid, and further requested that the appellant complete VA Forms 21P-8416 (medical expense reports) for 2018 and 2019. 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). The Board notes that, to date, the necessary information with respect to the appellant’s unreimbursed medical expenses for the period from June 1, 2018 has not been received. His failure to provide the requested information makes it impossible for VA to determine his eligibility. The appellant has a duty to aid VA in developing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street; if a claimant wishes help in developing her/his claim, s/he cannot passively wait for it in those circumstances where s/he may or should have information that is essential in obtaining putative evidence). Because the appellant did not respond to VA’s request for additional information, the Board will not use the claimed medical expenses of $725 for services provided by Cascade Behavioral Hospital and will decide the claim based on the evidence of record. The appellant has not otherwise provided any additional income or net worth information or evidence and has not provided any evidence of eligible unreimbursed medical expenses or any other expenses that may be deducted from his income for purposes of calculating his countable income for non-service-connected pension purposes. Based on the foregoing, the appellant’s annualized countable income for the period from June 1, 2018 was $7,848, which is the below the relevant MAPR of $13,166 effective December 1, 2017. Accordingly, for the period from June 1, 2018, non-service-connected pension was warranted in the amount of the difference between the MAPR ($13,166) and the appellant’s annualized countable income ($7,848), which is $5,318 annually (approximately $443 per month). The record reflects that the AOJ reduced the appellant’s non-service-connected pension benefits to $457 per month effective June 1, 2018. See May 2018 VA notification letter. Because the AOJ has awarded a higher pension amount of $457 per month from June 1, 2018, the Board will not disturb that amount; however, the appellant is not entitled to a higher pension amount effective June 1, 2018. For the reasons stated, the preponderance of the evidence is against finding that a higher pension amount is warranted from June 1, 2018. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.