Citation Nr: 21028181
Decision Date: 05/10/21	Archive Date: 05/10/21

DOCKET NO. 14-03 336
DATE: May 10, 2021

ORDER

For the entire appeal period, entitlement to a permanent and total disability rating to establish basic eligibility for nonservice-connected pension is granted.

From November 6, 1995 to August 31, 1996, entitlement to nonservice-connected pension is granted.

From September 1, 1996, entitlement to nonservice-connected pension is denied.

FINDINGS OF FACT

1. Social Security Administration records show that the Veteran was permanently and totally disabled for the entire appeal period.

2. From November 6, 1995 to August 31, 1996, the Veteran's countable income did not exceed the maximum annual pension rate (MAPR).

3. From September 1, 1996, the Veteran's countable income exceeded applicable MAPRs.

CONCLUSIONS OF LAW

1. For the entire appeal period, the criteria for a permanent and total disability rating to establish basic eligibility to nonservice-connected pension have been met. 38 U.S.C. § 1521(a).

2. From November 6, 1995 to August 31, 1996, the criteria for payment of nonservice-connected pension benefits based on countable income have been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273.

3. From September 1, 1996, the criteria for payment of nonservice-connected pension benefits based on countable income have not been met. 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 had active service from November 1963 to October 1965.

A June 2015 Board remand notes that the current appeal for pension stems from a May 1996 rating decision to which the Veteran had perfected a timely appeal. In April 2017, the Board remanded the claim for non-service-connected pension to obtain Social Security Administration (SSA) records. An October 2019, remand noted that SSA records indicated that the Veteran was found to be disabled but found that a remand was necessary for the RO to determine whether the Veteran's income qualified for award of nonservice-connected pension benefits. The Board finds that the Agency of Original Jurisdiction has substantially complied with the Board's remand orders, and the case is ready for review.

1. Entitlement to a permanent and total disability rating for basic eligibility for nonservice-connected pension benefits prior to March 31, 2006.

Nonservice-connected pension benefits are paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities, which are not the result of willful misconduct. 38 U.S.C. § 1521(a). A claimant will be considered permanently and totally disabled if the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner finds said claimant to be disabled. 

In this case, the Veteran filed an initial application for nonservice-connected pension received on November 6, 1995. In his application form, he anticipated that he would qualify for and receive SSA disability benefits in 1996. SSA records show that the Veteran was awarded SSA benefits from September 1996 based on disability. The Board finds, therefore, that the Veteran is permanent and totally disabled for the entire appeal period from November 6, 1995, the date of his claim for pension, in light of the SSA determination. 

2. Entitlement to nonservice-connected pension from November 6, 1995 to August 31, 1996.

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 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, 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, 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. However, welfare benefits, such as supplemental security income (SSI), are excludable from countable income for purposes of receipt of pension. 38 C.F.R. § 3.272. 

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 his November 1995 initial application for pension, the Veteran reported having no net worth. He had no income, but anticipated being eligible for SSA benefits in 1996. He reported that he would be eligible for retirement benefits from J.P. Stevens Co. in March 1996. His spouse was in receipt of Supplemental Security Income benefits. SSI benefits are excludable from countable income as a welfare benefit for purposes of receipt of pension. 38 C.F.R. § 3.272. 

In Improved Pension Eligibility Verification Reports (EVR) received in June 2020 for the years 1995 and 1996, the Veteran reported receiving $93.54 a month for retirement benefits form J.P. Stevens Co. from March 1996. No unreimbursed medical expenses were reported for 1995 or 1996. 

The Board finds that from November 6, 1995, the Veteran had a countable income of $0.00, and from March 1, 1996, he had a countable income of $1,122.00 from his retirement benefits. From November 6, 1995 to August 31, 1996, the Veteran's countable income did not exceed the maximum annual pension rates of $10,527.00 and of $10,801.00 (effective December 1, 1995) applicable for a Veteran with one dependent. Thus, entitlement to nonservice-connected pension is granted from November 6, 1995 to August 31, 1996. 

3. Entitlement to nonservice-connected pension from September 1, 1996.

The Veteran began receiving SSA benefits in September 1996. For the entire appeal period, his income has been comprised of SSA income for he and his spouse and his J.P. Stevens Co. retirement benefits. While the Veteran has submitted EVRs for most years from 1995 to 2020, it appears that for many of the reporting years for which he did not have SSA data, he reported his current benefit amount, which would result in a higher countable income. Accordingly, the Board has used an SSA award letter received in July 2018, a SSA payment history record for the Veteran and his spouse received in March 2020, and SSA Inquiries for the Veteran and his spouse with data from 2013 to 2020, which include more accurate monthly payment amounts as reported by the SSA, in evaluating countable income. 

The Veteran submitted multiple Medical Expense Reports in June 2020 which identify only monthly Medicare Part B premiums for he and his spouse. Because the Medicare Part B amounts are also identified on SSA records, the Board will use the more accurately reported premiums shown by SSA data. During the time period from 2006 to 2008 when Medicare payments were not deducted from SSA benefits and were not shown in SSA records, the Board has used the amounts reported on Medical Expense Reports.

To calculate countable income, the Board will add the Veteran and his spouse's monthly income amounts, and multiply by 12 to determine his annualized income. The Board notes increases in SSA benefits align with increases in VA MAPRs, which occur on December 1 for each year that an increase has occurred. The Board will then subtract annual medical expenses in excess of five percent of the corresponding MAPR to determine countable income. If countable income exceeds the applicable MAPR, then pension benefits are not payable. The Board has entered the evidence considered for the appeal period in the chart below. 

Date	SSA Veteran	SSA Spouse	Retirement	Medical Expenses (annual)	MAPR (Veteran and dependent)

9/1996	$1,015.30		$93.54		$10,801

12/1996	$1,044.70		$93.54		$11,115

12/1997	$1,066.60		$93.54		$11,349

12/1998	$1,080.40		$93.54		$11,497

12/1999	$1,105.50		$93.54	$546	$11,773

12/2000	$1,145.00		$93.54	$600	$12,186

12/2001	$1,175.00		$93.54	$648	$12,516

12/2002	$1,191.70	$0.00	$93.54	$704	$12,692

12/2003	$1,216.60	$0.00	$93.54	$799	$12,959

12/2004	$1,249.20	$0.00	$93.54	$938	$13,309

12/2005	$1,301.00	$0.00	$93.54	$2,314	$13,855

12/2006	$1,470.00	$0.00	$93.54	$2,386	$14,313

8/2007	$1,470.00	$517.00	$93.54	$2,386	$14,313

12/2007	$1,504.00	$529.00	$93.54	$2,314	$14,643

12/2008	$1,591.00	$560.00	$93.54	$2,314	$15,493

12/2009	$1,591.50	$560.00	$93.54	$2,477	$15,493

12/2011	$1,648.90	$579.90	$93.54	$2,416	$16,051

12/2012	$1,676.90	$589.60	$93.54	$2,400	$16,324

12/2013	$1701.90	$598.90	$93.54	$2,520	$16,569

12/2014	$1,730.90	$608.90	$93.54	$2,520	$16,851

12/2016	$1,736.00	$611.00	$93.54	$2,604	$16,902

12/2017	$1,770.00	$623.00	$93.54	$3,036	$17,241

12/2018	$1,819.50	$640.50	$93.54	$3,252	$17,724

12/2019	$1,848.60	$650.60	$93.54	$3,470	$18,008

From September 1, 1996 through 1999, the Veteran had a countable income between $13,306.00 to $14,087.00, increasing incrementally with increases to his SSA benefits. His countable income exceeded the applicable MAPRs which were between $10,801.00 and $11,497.00 during this time. Therefore, countable income was a bar to the receipt of pension benefits.

From December 1999 through 2006, the Veteran had annualized incomes between $14,388.00 to $16,734.00. Medical expenses in excess of 5 percent of the MAPR may be used to reduce countable income. From December 1999, medical expenses were less than five percent of the MAPR, and cannot be counted to reduce income. Thus, he had a countable income of $14,338.00. From December 2000, the Veteran's annualized income could be reduced by $9.00. Thus, he had a countable income of $14,853.00. From December 2005, the Veteran had an annualized income of $16,734.00 and a countable income of $15,112.00. From December 1999 through 2006, the Veteran had a countable income between $14,388.00 to $15,112.00. His countable income exceeded applicable MAPRs which were between $11,773.00 to $13,855.00. Thus, pension benefits are not payable from December 1999 through 2006. 

The Board notes that a March 2020 SSA payment history report indicates that disability benefits for the Veteran's spouse terminated in 2003 and she began receiving SSA benefits in 2007. It is unclear whether any benefits were paid prior to 2003, or whether they were SSI benefits. However, because the Board has found that prior to 2003, the Veteran's SSA income and retirement benefits alone exceeded applicable MAPRs, thereby precluding the award of pension benefits, additional development is not necessary to assess his spouse's income prior to 2003. 

In August 2007, the Veteran's spouse began receiving SSA payments resulting in an increase in countable income. From August 2007 to 2020, the Veteran's countable income continued to exceed applicable MAPRs, and was a bar to the receipt of pension. From August 2007, the Veteran had an annualized income of $24,966.00. He had a countable income of $24,250.00. From December 1, 2019, he had an annualized income of $31,113.00, and a countable income of $28,543.00. From 2007 to 2020, the Veteran's countable income, which ranged from $24,250.00 to $28,543.00, greatly exceeded applicable MAPRs which ranged from $14,313.00 to $18,008.00. Thus, the Veteran's countable income was a bar to the receipt of pension benefits. 

In conclusion, the Board finds that for the entire appeal period from September 1, 1996, the Veteran's countable income exceeded applicable MAPRs and was a bar to the receipt of pension benefits. 

 

 

Richard Kettler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christine C. Kung

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.