Citation Nr: 21028159 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-05 664A DATE: May 10, 2021 ORDER Entitlement to VA non-service-connected pension with special monthly pension benefits is denied. FINDING OF FACT The Veteran's initial application for pension remains incomplete as neither the Veteran (during his lifetime), nor the appellant, submitted the identified information and evidence necessary to complete the claim. 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, 3.274. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from December 1942 to January 1944 and October 1950 to December 1952. The Veteran reportedly died in July 2014. The appellant is the Veteran's dependent (helpless) child and has been substituted as the claimant pursuant to 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) January 2015 decision. The Board remanded the Veteran's appeal in January 2019, August 2019 and March 2020. The Board finds that substantial compliance with the prior remands has been accomplished. 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). Therefore, the Board may proceed forward with adjudicating the appeal without prejudice to the appellant. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to non-service-connected pension with special monthly pension The appellant contends that, at the time of the Veteran's death, he had a claim pending for pension at the aid and attendance rate and he is seeking the benefits he believes were due the Veteran based on that claim. See July 2015 notice of disagreement and February 2016 VA Form 9. The Veteran filed a Fully Developed Claim for non-service-connected disability pension benefits with special monthly pension (on VA Forms 21-527EZ and 21-2680) in June 2014. In a June 2014 Notification Letter, the Veteran's claim was denied because of incomplete evidence and was advised of what evidence was needed to complete his claim. Specifically, the June 2014 decision letter advised the following: (1) the Veteran failed to report the value of real property he owned on his VA Form 21-527EZ, and was asked to report the value of any real estate he owned and the type of property owned (if a farm, he was further asked to report the value of the property excluding the value of his home plus one acre of land); (2) the Veteran reported receiving income from a land lease, so was asked to complete and submit VA Form 21-4185, Report of Income from Property or Business; (3) the Veteran reported assets of $9,246.93 in interest bearing bank accounts, but did not report having interest income from these assets, so was asked to report the amount of interest income received/expected to be received annually on VA Form 21-4138; and (4) that additional information was needed concerning the Veteran's monthly expenses and was asked to complete and return VA Form 21-8049, Request for Details of Expenses. Basic entitlement to VA non-service-connected disability pension benefits are payable to veterans of a period or periods of war because of non-service-connected disability or age who meets the net worth requirements and does not have an annual income in excess of the applicable maximum annual pension rate specified by law. 38 C.F.R. § 3.3(a)(3). Generally, a veteran meets the service requirements if he served at least 90 days in active military, naval, or air service during a period of war or was discharged or released from active military, naval or air service during a period of war due to a service-connected disability without the benefit of presumptive provisions of law. Id. Moreover, a veteran meets the disability requirement when he or she is either (a) age 65 or older or (b) 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. 38 C.F.R. §§ 3.3(a)(3)(vi), 3.17. Finally, if all other requirements are met, entitlement to pension payments exists when the veteran meets the net worth and income requirements set forth in 38 C.F.R. §§ 3.274 and 3.23, respectively. 38 C.F.R. § 3.3(a)(3)(v). In the present case, there is no question that the Veteran's service meets the minimum service requirements as he served on honorable active military service for more than 90 days during both World War II and the Korean conflict. Furthermore, as the Veteran was over age 65 when he filed his application for pension benefits in June 2014, he met the disability requirement as well. Therefore, the remaining question is whether he met the net worth and income requirements for entitlement to pension payments. Unfortunately, there remains a lack of information and evidence to establish what the Veteran's net worth and income were, and neither the Veteran, during his lifetime, nor the appellant during the pendency of the claim, cured the deficiencies identified in the June 2014 decision letter. Thus, the Board must deny the claim for non-service-connected disability pension benefits with special monthly pension because there is insufficient information and evidence upon which to determine the Veteran's entitlement to payment of 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 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. 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 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, the 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). It is within VA's purview to request such documentation to substantiate the claim for benefits that the appellant seeks. Id. at 519. It is the responsibility of a claimant to cooperate with VA in assisting in the development of his or her claim. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). However, it is ultimately the claimant's responsibility to present and support their claim for benefits under the laws administered by VA. See 38 U.S.C. § 5107(a); see also Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009). In the present case, the Veteran was advised in the June 2014 decision notice that his fully developed claim was deficient, how the claim was deficient and what additional information and evidence the Veteran needed to submit to support his claim for VA pension benefits. Unfortunately, the Veteran died the next month without submitting such information and evidence. (Continued on the next page) However, as the Veteran died within one year of the June 2014 decision, the Veteran's claim remained pending and the appellant was substituted into that claim in lieu of the Veteran. See 38 C.F.R. § 3.160(c); § 3.1010. The appellant was sent duty to assist letters in December 2019 and April 2020, which advised what information and evidence is needed to support the Veteran's claim for pension benefits. However, to date, VA has not received a response. Hence, as VA has not received the requested information and evidence, the Board is unable to determine the Veteran's entitlement to non-service-connected disability pension benefits due to the lack of information, and the claim is denied. As such, the appellant's appeal is denied. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.