Citation Nr: 21026650 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-02 765 DATE: May 3, 2021 ORDER 1. Entitlement to a nonservice-connected pension prior to May 1, 2010 is denied. 2. Entitlement to a nonservice-connected pension since May 1, 2010 is granted. FINDINGS OF FACT 1. Prior to May 1, 2010, the Veteran's countable income exceeded the applicable maximum annual pension rate (MAPR). 2. Since May 1, 2010, the Veteran's countable income has not exceeded the applicable MAPR. CONCLUSIONS OF LAW 1. The criteria for a nonservice-connected pension prior to May 1, 2010 are not met. 38 U.S.C. §§ 1503, 1541 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.278 (2020). 2. The criteria for a nonservice-connected pension since May 1, 2010 are met. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.278. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Air Force from November 1968 to June 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2013 administrative decision by a VA Pension Management Center (PMC). Entitlement to a nonservice-connected pension prior to August 11, 2011. The Veteran initially filed a claim for nonservice-connected benefits in October 2009. In an August 2013 administrative decision, a PMC granted pension benefits effective August 11, 2011. The Veteran is seeking such benefits for the period prior to August 11, 2011. Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(a)(3). The MAPR 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. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1541; 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, 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). Unemployment income is not specifically excluded under 38 C.F.R. § 3.272 and 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, for which the surviving spouse received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. In addition, unreimbursed payments to hospitals, nursing homes, medical foster homes, and inpatient treatment centers (including inpatient treatment centers for drug or alcohol addiction), including the cost of meals and lodging charged by such facilities, are medical expenses. 38 C.F.R. § 3.278(d). Social Security Administration (SSA) information associated with the record in February 2010 shows that the Veteran's daughter was receiving $422 per month in SSA income. In a February 2010 statement, the Veteran reported receiving unemployment income since January 2008. Later in February 2010, the Veteran submitted a letter from his landlord that was written in August 2009. The landlord stated that the Veteran reports having joint custody of his daughter and that she stays with the Veteran. In March 2010, information from the Illinois Department of Employment Security was received that indicates the Veteran was receiving $342 per week in unemployment income. Thereafter, in an August 2012 correspondence, the Veteran requested removing his daughter's income from calculating his pension eligibility. He reported that his daughter's mother receives all of her SSA income and that he was homeless. In a November 2013 administrative decision, the PMC informed the Veteran that VA has to count his daughter's income if she is included as a dependent child and that excluding her income would result in a lower MAPR due to removal of his daughter as a dependent. See 38 C.F.R. § 3.57(d). In June 2014, the Veteran submitted a 2010 income tax return. The tax return shows $4,788 of unemployment income and that he had a business that operated at a loss. The Veteran's annualized income at the time of the application in October 2009 was unemployment income of $17,784. He did not claim any unreimbursed medical expenses during the appeal period. If the Veteran's daughter's income is excluded as he has requested, the unemployment income is in excess of the applicable MAPR for a veteran without a dependent of $10,605. If the Veteran's daughter is included as a dependent, his annualized income total includes his daughter's SSA income for an annualized total income of $22,848. This is in excess of the applicable MAPR for veterans with one dependent of $13,850. Furthermore, the Board notes that the Veteran's annualized income on its own is in excess of the MAPR for veterans with one dependent. Therefore, at the time of application, the Veteran's annualized income was in excess of the applicable MAPR. In January 2010, the MAPR increased. The MAPR for veterans without a dependent was $11,830 and the MAPR for veterans with a dependent was $15,493. The Veteran's tax return shows that he was still receiving unemployment income through April 2010. Therefore, his annualized income continued to be in excess of both the MAPR for veterans without dependents and the MAPR for veterans with one dependent through April 2010. However, in May 2010 he longer received unemployment income. Therefore, since May 1, 2010, the Veteran's income has not been in excess of the applicable MAPR. Thus, the Board finds that the preponderance of the evidence shows the Veteran's countable income exceeded the applicable MAPR prior to May 1, 2010 and since May 1, 2010 his countable income has not exceeded the applicable MAPR. Accordingly, a nonservice-connected pension is not warranted prior to May 1, 2010, but is warranted since May 1, 2010. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield, 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.