Citation Nr: 21041597 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-35 465A DATE: July 9, 2021 ORDER The overpayment debt of Department of Veterans Affairs (VA) pension benefits in the amount of $13,237.00 was properly created; the appeal is denied. Entitlement to service connection for a respiratory disorder, claimed as emphysema, including as secondary to in-service asbestos exposure, is denied. FINDINGS OF FACT 1. The Veteran began receiving benefits from the Social Security Administration (SSA) after the Veteran was awarded VA improved pension benefits; the Veteran did not promptly notify VA of his award of these benefits. 2. The retroactive action taken to reduce the pension benefits and terminate them resulted in the creation of the debt at issue. 3. The preponderance of the evidence is against finding that the Veteran's emphysema began during active service, or is otherwise related to an in-service injury or disease, to include is potential exposure to asbestos in service. CONCLUSIONS OF LAW 1. An overpayment of $13,237.00 in VA pension benefits was properly created. 38 U.S.C. §§ 101, 1503, 1521, 1541, 5110, 5313; 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272. 2. The criteria for service connection for a respiratory disorder, claimed as emphysema, to include as due to in-service asbestos exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1975 to February 1979. The matters on appeal come before the Board of Veterans' Appeals (Board) from a September 2013 rating decision and a January 2015 administrative decision of the Regional Office (RO). In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record before the Board. Following the hearing, the Board remanded the matters on appeal for additional evidentiary development in April 2019. That development has been completed and the matters are now again before the Board. As a final preliminary matter, the Board recognizes the Veteran has also appealed the denial of a waiver of the debt at issue. This matter was appealed under the Appeals Modernization Act (AMA) system and will be considered in a separate opinion. Validity of Debt Basic entitlement to pension exists if a veteran of a period or periods of war (as defined in 38 C.F.R. § 3.3(a)) meets certain net worth requirements and does not have an annual income in excess of the applicable maximum annual pension rate (MAPR), and is either age 65 or older or is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willful misconduct. See 38 U.S.C. §§ 1521(a) and (j), 5312; 38 C.F.R. §§ 3.3(a), 3.23(a). Pension is not payable to a veteran whose annual income exceeds the rates set forth in 38 U.S.C. § 1521. Improved pension provides for maximum income levels under which eligibility is based and this amount is offset by annual income of the recipient minus any excepted unreimbursed medical expenses. For the purpose of determining initial entitlement, or for resuming payments on an award which was previously discontinued, the monthly rate of pension payable to a beneficiary shall be computed by reducing the beneficiary's applicable maximum pension rate by the beneficiary's annual rate of countable income on the effective date of entitlement and dividing the remainder by 12; whenever there is a change in a beneficiary's annual rate of countable income, the monthly rate of pension payable shall be computed by reducing the beneficiary's applicable MAPR by the beneficiary's new annual rate of countable income on the effective date of the change in the annual rate of income, and dividing the remainder by 12. 38 C.F.R. § 3.273. For the purpose of computing income for improved pension, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271(a). The following is excluded from countable income for VA pension purposes: welfare benefits; maintenance benefits furnished by a relative, friend, or a charitable organization; VA pension benefits; casualty loss reimbursement; profit from the sale of property; joint accounts; unreimbursed medical expenses (to the extent that the medical expenses exceed 5 percent of the applicable MAPR); expenses of last illnesses, burials, and just debts; educational expenses; a portion of the beneficiary's children's income; Domestic Volunteer Service Act Programs payments; distributions of funds under 38 U.S.C. § 1718; survivor benefit annuities; Agent Orange settlement payments; restitution to individuals of Japanese ancestry; cash surrender value of life insurance policies; income received by American Indian beneficiaries from trust or restricted lands; Radiation Exposure Compensation Act payments; and Alaska Native Claims Settlement Act payments. 38 C.F.R. § 3.272. Some income from the Social Security Administration is not excluded under 38 C.F.R. § 3.272. Social Security income may fall under Title II (Social Security Disability Insurance (SSDI)) or under Title XVI (Supplemental Security Income (SSI)). SSDI payments are included as countable income in determining a nonservice-connected payment amount, but SSI payments are not. 38 C.F.R. § 3.262(e) and (f). The amount of pension actually received is the difference between the recipient's countable income and the MAPR permitted by VA given the recipient's circumstances. Pension is not payable if the recipient's countable annual income exceeds the maximum limitation given the recipient's circumstances as set forth in the legislation. See generally 38 U.S.C. §§ 101, 1501. The Secretary shall deny or discontinue the payment of a veteran's pension based upon consideration of the annual income of a veteran, his/her spouse, and children. 38 U.S.C. § 1522. An overpayment is created when VA determines that a beneficiary or payee has received benefit payments in excess of the amount due or to which such beneficiary or payee is entitled. 38 C.F.R. § 1.962. When VA has determined that a debt is owed based on such an overpayment, and once it has satisfied certain procedural requirements, it may collect the debt by offsetting current or future benefit payments until the debt has been repaid. 38 U.S.C. § 5314; 38 C.F.R. §§ 1.911, 1.912a(a). In a June 2011 rating decision, the RO granted entitlement to pension benefits. The Veteran was notified at the time that the pension benefits depend on the Veteran's income and number of dependents. He was informed that he was being paid as a single veteran with no dependents. With the notification letter, he was provided VA Form 21-8768 which stated, in pertinent part, that the Veteran was obligated to provide prompt notice of any change in family income or net worth and that a failure to provide such would result in the creation of an overpayment that would be subject to recovery. It further stated that when reporting income, the total amount and source of all income received should be reported. The MAPR for a veteran with no dependents for the annual year commencing December 1, 2010 was $11,830; from December 1, 2011 was $11,830; and from December 1, 2012 was $12,465. In November 2012, the Veteran filed a claim for service connection benefits and on his claim form he reported a $1,700 monthly benefit from the Social Security Administration. The RO subsequently inquired with the Social Security Administration as to the Veteran's benefits and received information in September 2013 showing the Veteran had been awarded monthly benefits in April 2011 with the date of onset listed as October 10, 2010. This report shows $1650.00 per month beginning in April 2011; $1709.00 per month beginning in December 2011; and $1,738.00 per month beginning in December 2012. Another report was issued and it was unclear whether the Veteran's Social Security income was under Title II (Social security Disability Insurance (SSDI)) or under Title XVI (Supplemental Security Income (SSI)). A September 2013 internal memorandum also shows the RO called the Social Security Administration, which confirmed that the Veteran received a $8,250 retroactive payment in October 2011. In October 2013, the RO sent a letter notifying the Veteran that his pension benefits were being terminated effective December 1, 2012 due to receipt of the Social Security income that exceeded the income limits for pension benefits. An amended letter was sent in October 2013, which changed the language to reflect that this was a proposed change to take place November 1, 2011 and giving the Veteran 60 days to provide information as to why this change should not take place. The Veteran was then notified of the $10,380.00 debt that resulted in by the VA Debt Management Center (DMC), also in October 2013. The amendment to the effective date of the termination of the award increased the debt to $13,237.00. The Veteran provided hearing testimony before the RO in September 2014, at which time he suggested the RO had incorrect information related to the actual date he began receiving Social Security benefits. The RO allowed the Veteran time to obtain verifying information from the Social Security Administration showing different dates than what the Social Security Administration gave VA. The Veteran did not subsequently respond with any additional information. In January 2015, the RO wrote to the Veteran to confirm that no information had been received from him since the hearing and to notify him that the proposed action to terminate his pension benefits was being taken and that the effective date would be November 1, 2011. The Veteran has perfected an appeal as to the creation of the debt. Again, he also requested a waiver, which is being adjudicated in an AMA appeal stream. The pertinent question in the appeal as to the creation of the debt is whether the overpayment from the period beginning November 1, 2011 was properly created. The debt at issue in this case was created when VA retroactively reduced the Veteran's pension based on the discovery of previously unreported income from the Social Security Administration. The Veteran has argued, including at the time of his December 2018 Board hearing, that someone filled out the pension claim paperwork for him, such that he was not aware of any requirement to report his income. The Board recognizes the Veteran's argument; however, even if he was not aware of the income reporting requirement at the time of his claim for pension, as noted above, he was notified of this requirement in communication from VA to him at the time he was awarded pension benefits. Following the Board hearing, the Board remanded this matter in order for the RO to obtain the Veteran's Social Security Administration records. In particular, the Board pointed out the need for VA to determine whether the Veteran's Social Security income was SSDI or SSI, as SSDI payments are included as countable income in determining a nonservice-connected payment amount, but SSI payments are not. 38 C.F.R. § 3.262(e) and (f). These records were received in July 2019 and show the Veteran's Social Security payments falling under the SSDI program. The Board finds that the debt was properly created because the Veteran had income from SSA which affected the right to pension benefits, an income-based benefit, from the effective date of the grant the SSA payments. The RO took proper action to retroactively reduce the pension benefits to reflect that the Veteran had SSA income. The Veteran has not challenged the calculation of the amount, but rather argued only that he was not aware he had to report his income to remain eligible for pension benefits. However, he was notified of this requirement at the time he was awarded pension benefits. The Board finds the debt at issue in this appeal was validly created. The Veteran's appeal is denied. Service Connection Respiratory Disorder The Veteran contends that service connection is warranted for a respiratory disorder, which he claimed as emphysema. He contends his respiratory disorder is related to in-service asbestos exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include in-service asbestos exposure. The Board concludes that, while the Veteran has a current diagnosis of emphysema, as noted in the September 2019 VA examination report, and the RO has recognized that the Veteran was potentially exposed to asbestos in service while serving onboard United States Navy ships, the preponderance of the evidence weighs against finding that the Veteran's emphysema began during service or is otherwise related to an in-service injury, event, or disease, to include asbestos exposure. At the time of his November 2012 claim, the Veteran reported having a respiratory disability that onset in approximately 2009 and that it was treated at the Detroit VA Medical Center (VAMC). VA treatment records show the Veteran enrolled at the Detroit VAMC in May 2010 January 2011 records show the diagnosis of mild pulmonary emphysema following an October 2010 chest x-ray. The notes indicate that smoking cessation was discussed at that time. The clinician also noted that the Veteran was a smoker with dust asbestos exposure. A January 2013 CT scan revealed mild emphysematous lungs and the follow up clinical visit again confirmed mild pulmonary emphysema. There is no evidence of emphysema prior to the VA treatment records. Thus, it appears to have onset decades after the Veteran's February 1979 separation from active service. The Veteran has not claimed, and his service treatment records do not show the onset of any respiratory disorder during his active service. Further, the Veteran was afforded a VA examination in September 2019 in order to assess the potential relationship between the Veteran's emphysema and any in-service asbestos exposure. The examiner confirmed the diagnosis as emphysema. While the Veteran's clinical records throughout the pendency of this claim also indicate a possibility that the Veteran has chronic obstructive pulmonary disease (COPD), this diagnosis is not confirmed in the clinical records or by the VA examiner. In fact, the examiner confirmed that there is no respiratory disorder other than emphysema present. The examiner recognized the Veteran's emphysema diagnosis and noted that he is currently not on inhalers or antibiotics, does not require oral or parenteral corticosteroid, does not require the use of oral bronchodilators, and does not require outpatient oxygen therapy. The examiner also recognized the Veteran's reported in-service exposure to asbestos. High resolution computed tomography (HRCT) was used to evaluate interstitial lung disease such as asbestosis. The results indicated bilateral pulmonary fibrosis, greater on the right side, with a nonspecific pattern, likely the sequela of prior aggressive infectious process. Pulmonary function testing (PFT) was also conducted. This examiner issued an opinion indicating the Veteran's emphysema is less likely than not caused by exposure to asbestos in service. The examiner noted that there are no radiological signs of asbestos related pleural/parenchymal lung disease. The examiner further explained that standard books of medicine and medical literature were reviewed and there is no basis for finding that the Veteran's emphysema is related to any in-service asbestos exposure. Thus, the evidence shows the Veteran's emphysema was diagnosed many years after his active service and a competent medical examiner found it less likely than not that the current emphysema is related to the Veteran's active service, to include related to any in-service asbestos exposure. The Board recognizes that the Veteran believes his emphysema is related to exposure to asbestos on the ships he served on as a mechanic. VA has recognized he was potentially exposed to asbestos during his service, but the evidence does not support a finding that he has asbestosis, or that his emphysema is causally connected to any in-service asbestos exposure. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing, as well as knowledge of the impact of outside substances, such as asbestos, on the human body, including the lungs. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion, which was based upon medical training and a review of diagnostic testing, as well as medical literature. Accordingly, this claim for service connection for a respiratory disorder, to include emphysema, must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.