Citation Nr: 21030644 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 10-36 582 DATE: May 19, 2021 ORDER Entitlement to nonservice-connected pension from January 15, 2012 to March 4, 2013 is granted. Entitlement to nonservice-connected pension prior to January 15, 2012 is denied. FINDINGS OF FACT 1. Social Security Administration records show that the Veteran was permanently and totally disabled from January 15, 2012. 2. From January 15, 2012, the veteran's spouse and stepdaughter resided apart from the Veteran and his spouse was estranged from the Veteran. The Veteran did not contribute to the support of his stepdaughter. 3. From January 15, 2012 to March 4, 2013, the Veteran's countable income did not exceed the maximum annual pension rate (MAPR). 4. Prior to January 15, 2012, the Veteran's disabilities did not render him unemployable, nor were they sufficient to render it impossible for an average person to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. From January 15, 2012 to March 4, 2013, the criteria for entitlement to nonservice-connected pension have been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. 2. For the appeal period prior to January 15, 2012, the criteria for a permanent and total disability rating to establish basic eligibility to nonservice-connected pension have not been met. 38 U.S.C. § 1521(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appeal for nonservice-connected was remanded in July 2013 for issuance of a statement of the case, and in September 2016 and August 2018 for clarification with regard to the status of the Veteran's dependents, and to request that the Veteran provide additional information as to whether he was living with claimed dependents during the appeal period. The Board finds that the Agency of Original substantially complied with the Board's remand orders, and the Board may proceed with a decision in this case. 1. Entitlement to nonservice-connected pension from January 15, 2012 to March 4, 2013 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. The Veteran was awarded pension benefits from March 4, 2013. During the pendency of the appeal, the AOJ denied entitlement to pension prior to January 15, 2012; however, the record does not show that pension benefits were awarded from January 15, 2012 to March 3, 2013. Thus, the issue of entitlement to pension for prior to March 4, 2013 remains on appeal. SSA records show that the Veteran was awarded SSA benefits from January 15, 2012 based on disability. The Board finds, therefore, that the Veteran is permanent and totally disabled for the entire appeal period from January 15, 2012 in light of the SSA determination. 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 claimant. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). The Veteran contends in a September 2011 notice of disagreement that he had dependents, and thus, countable income should be considered based on the MAPR for a Veteran with dependents. The income of a dependent spouse is included as countable income for VA pension purposes. 38 C.F.R. § 3.23 (d)(4). When a veteran's spouse resides apart from the veteran and is estranged from the veteran, he or she is not considered the Veteran's dependent unless the spouse receives reasonable support contributions. 38 C.F.R. § 3.23 (d)(1). The Board finds that for the appeal period from January 12, 2012, the Veteran's spouse, P.K., and stepdaughter, J.J., resided apart from the Veteran and his spouse was estranged from the Veteran. The Veteran did not contribute to the support of his stepdaughter. Thus, dependent status has not been established for the Veteran's spouse and his stepdaughter for the purpose of calculating countable income. While the Veteran was shown to be married during the period from January 12, 2012 to March 4, 2013, he reported in a December 2010 Improved Pension Eligibility Verification Report, that he was married to P.K. but was not living with her, and that he was legally married but estranged from his spouse. The date of separation was reported to be September 16, 2010. Moreover, the Veteran reported that he contributed $0.00 to his spouse's support during the last 12 month period, that he had no dependent children in his custody, and he contributed no money to children, not in his custody, during the last 12 months. In November 2017, a VA Form 27-0820 (Report of General Information) documented the Veteran's statement that he had not divorced P.K. but that he had left and gone his separate way around January 2012. He reported that he no longer had anything to do with her or J.J. The Board remanded the appeal for additional information about dependency status, to include a request for information as to whether the Veteran and his spouse were cohobating for any part of the appeal period. In July 2019, the Veteran submitted March 2013 SSA records which detail the Veteran's living arrangements as of September 2012. The Veteran's report to SSA shows that he was not living with P.K. or J.J. at any time between September 2012 to March 2013, and he did not otherwise report or provide evidence showing that he was cohabiting with P.K. or J.J. during the relevant appeal period from January 2012. In December 2010, the Veteran reported that he was not living with and was estranged from his spouse, in November 2017, he reported that he no longer had anything to do with his spouse or J.J. from January 2012, and SSA records show that from September 2012, they were still living apart. For these reasons, the weight of the evidence shows that the Veteran's spouse resided apart from the Veteran and was estranged from the Veteran, and the Veteran did not contribute to the support of his stepdaughter. The Board, therefore, will not count P.K. and J.J.'s income, and will use the MAPR for a Veteran with no dependents to calculate countable income. The MAPR for a Veteran with no dependents in January 2012 was $12,256.00. A December 2010 Improved Pension Eligibility Verification Report shows that the Veteran had no income and no net worth. An SSA Inquiry shows that the Veteran began receiving SSA benefits beginning July 2012, and was paid $610.00 monthly, with an annualized income of $7,320.00. He did not identify any unreimbursed medical expenses. From January 15, 2012, the Veteran had a countable income of $0.00 and from July 1, 2012, he had a countable income of $7,320.00. The Veteran's countable income did not exceed the applicable MAPR form January 15, 2012 to March 4, 2013. Thus, entitlement to payment of pension benefits from January 15, 2012 is warranted. 2. Entitlement to nonservice-connected pension prior to January 15, 2012 The Board notes that the issue of entitlement to nonservice-connected pension comes on appeal from an August 2008 decision. A review of the record shows that the Veteran submitted a timely April 2009 notice of disagreement to the August 2008 decision which denied entitlement to nonservice-connected pension. While the AOJ again denied entitlement to pension in September 2009, and May 2011, the Board finds that the present appeal stems from the earlier August 2008 denial. In an April 2000 Supplemental Statement of the Case, the AOJ denied entitlement to nonservice-connected pension finding that the Veteran was not permanent and totally disabled prior to January 15, 2012. For VA pension purposes, all veterans who are basically eligible 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. 38C.F.R. §3.17. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a). Permanent total disability ratings for pension purposes are authorized for disabling conditions not the result of the veteran's own willful misconduct whether or not they are service connected. 38 C.F.R. § 3.342. For the purpose of pension, the permanence of the percentage requirements of § 4.16 is a requisite. 38 C.F.R. § 4.17. Generally, 38 C.F.R. § 4.16 (a), provides that total disability ratings may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of disability. 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 and follow substantially gainful employment by reason of such disability. 38 C.F.R. § 4.17. Prior employment or unemployment status is immaterial if, in the judgment of the rating board, the veteran's disabilities render him or her unemployable. Id. Marginal employment (for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration) will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment, is due to disability. A veteran will be considered permanently and totally disabled if he is a patient in a nursing home for long-term care, is disabled as determined by Social Security, is unemployable as a result of disability reasonably certain to continue throughout the life of the person, is 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 where the Veteran has any disease or disorder determined by VA to be of such a nature 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). For the entire appeal period prior to January 15, 2012, the preponderance of the evidence is against finding that the Veteran was unable to unable to secure or follow a substantially gainful occupation as a result of disability. In a December 2010 Improved Pension Eligibility Verification Report, the Veteran reported that from January 2010 to December 2010, he had earned $14,000.00 in gross wages from employment. SSA records show that the Veteran filed a claim for disability in September 2012, alleging the he was unable to work from January 2012 due to heart problems, high blood pressure, back problems, prostate cancer, and the amputation of the index finger of the right hand. While the Veteran was found to be disabled from January 15, 2012, significantly, the Veteran reported working full time at a Tyson chicken processing plant as a poultry eviscerator from January 2008 through January 15, 2012. This was described in a vocational report as a light, unskilled job. The SSA determination based in part on the vocational specialist's report, shows that the onset date of disability was January 15, 2012, as this was the date the Veteran last earned wages which constituted substantial gainful activity. The Board finds that the Veteran's reported work history provided in his SSA claim, and the SSA determination provides probative evidence with regard to his employability prior to January 15, 2012. The evidence shows that prior to January 15, 2012, the Veteran was employed, had maintained employment at the same job for four years, and this constituted substantially gainful occupation. Accordingly, the Board finds that weight of the evidence shows that prior to January 15, 2012, the Veteran's disabilities are not shown to render him unable to secure and sustain a substantially gainful occupation to warrant basic eligibility for nonservice-connected pension. Because the Veteran the evidence does not show that the Veteran was unable to secure and follow a substantially gainful occupation prior to January 15, 2012, the Board does not need to address whether a total disability rating may be assigned under 38 C.F.R. §§ 4.16 or 4.17, as a rating of permanent and total disability will only be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of disability. The Board also need not address whether the Veteran's spouse or step-daughter resided with him prior to January 15, 2012 for the purpose of calculating countable income, as asserted by the Veteran's representative, as the threshold question of entitlement to pension based on permanently and totally disability has not been established prior to January 15, 2012. K. Parakkal 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.