Citation Nr: 21054590 Decision Date: 09/02/21 Archive Date: 09/02/21 DOCKET NO. 14-43 470 DATE: September 2, 2021 ORDER The appeal for payment of VA nonservice-connected pension benefits is denied. FINDING OF FACT Other than a $2000.00 annual annuity reduction, there is no evidence of record showing that the Veteran's reported tribal annuity payments or Seneca Nation Elder payments are exempt from consideration as countable income for purposes of the payment of VA pension benefits. CONCLUSION OF LAW The criteria for discounting the Veteran's reported tribal income for the purposes of payment of VA nonservice-connected pension benefits have not been met. 25 U.S.C. §§ 1408, 1774f(b); 38 C.F.R. § 3.272(r); 38 C.F.R. §§ 3.272(t), 3.279(b)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1970 to May 1972. This appeal before the Board of Veterans' Appeals (Board) arises from a January 2013 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which reduced the Veteran's VA pension benefits based on an increase in his tribal income. In issuing the January 2013 decision, the RO notified the Veteran that his income from his Native American annuity had been reduced by $2,000.00, in accordance with applicable laws and regulations providing that $2,000.00 of income received by American Indian beneficiaries is not to counted as income. The Board remanded the current claim on appeal to the Agency of Original Jurisdiction (AOJ) for further development in December 2019 and March 2021. The record reflects that the Veteran failed to report to a scheduled Board hearing in April 2019, and did not provide good cause for his absence. 38 C.F.R. § 20.603(d). Propriety of Counting Tribal Income for Purposes of VA Pension Benefits The Veteran contends that his reported tribal income does not constitute countable income for VA improved pension benefits purposes. On a February 2011 Improved Pension Eligibility Verification Report, he indicated that he received $708.00, per month, in "Native American Annuity" and $7,200.00, annually, for his "Native American Old Age Annuity." On a subsequent Verification Report dated in August 2012, he indicated that he was receiving $2,125.00, quarterly, from a Seneca Nation Annuity and $600.00, monthly, from a Seneca Nation Elder fund. The Veteran maintains that the Seneca Nation Settlement Act (Settlement Act) of 1990 prohibits calculating his annuity payments as income for purposes of his improved pension benefits. In relevant part, the Settlement Act provides that, "None of the payments, funds or distributions authorized, established, or directed by this Act, and none of the income derived therefrom, shall affect the eligibility of the Seneca Nation or its members for, or be used as a basis for denying or reducing funds under, any Federal program. Public Law 101-503(8)(b) (codified at 25 U.S.C. § 1774f(b)). Further, income of up to $2,000.00, per calendar year is excluded to an individual Native American from trust lands or restricted lands. 38 C.F.R. § 3.272(r); 38 C.F.R. § 3.279(b)(2). VA will also exclude other amounts designated by statute as not countable as income, regardless of whether or not such exclusion is listed in section 3.272 or section 3.279. 38 C.F.R. § 3.272(t). In support of his appeal, the Veteran submitted an April 2010 memorandum from the Seneca Nation Department of Justice regarding the immunity of Seneca Nation Annuity and Disability Payments. The memorandum states that the Settlement Act of 1990 provided funds that could be used to acquire lands to increase the land base of the Seneca Nation. The Nation used a portion of those funds to purchase land which is leased to the Nation's gaming corporations. Lease payments are then segregated and distributed to the Nation's members on a quarterly basis. The memorandum also notes that section 8 of the Settlement Act prohibits any characterization of these payments as income for purposes of calculating as a matter of state or federal law, income tax liability, benefits eligibility, and child support payments. The memorandum further notes that annuity and disability payment made by the Seneca Nation to its members fall within the protection of section 8 of the Settlement Act. In remanding the Veteran's appeal in December 2019 and March 2021, the Board in particular noted that it was not disputing the immunity of Seneca Nation annuity payments pursuant to the provisions of 25 U.S.C. § 1774(f). Rather, as noted by VA Regional Counsel in a July 2014 memorandum, there is no verification of record indicating that the Veteran's various reported annuity payments are actually from the funds appropriated pursuant to the Settlement Act. Further, there is no verification of record that reported payments made to the Veteran by virtue of his being a Seneca Nation Elder are from funds appropriated pursuant to the Settlement Act. In prior remands, the Board noted that the Veteran could provide such verification in the form of a letter from the payer of the annuity, signed by an official of the entity which pays the annuity, certifying that the Veteran's tribal payments are paid from funds appropriated pursuant to 38 U.S.C. § 1774(f). Notably, despite the Board's multiple remands of this claim to provide the Veteran with opportunities to submit an appropriate form of verification that his tribal payments were from funds appropriated pursuant to the Settlement Act, and despite the AOJ providing the Veteran with letters dated in April 2020 and April 2021 requesting that he provide verification that the specific annuities that he receives, in total or in part, are from funds appropriated pursuant to the pertinent statute, the Veteran still has not provided any such verification. Accordingly, the Board has no way of verifying that the Veteran's reported Seneca Nation annuity payments, or payments rendered by virtue of his being a Seneca Nation Elder, are exempt from consideration as countable income for purposes of the payment of VA pension benefits, pursuant to the Settlement Act as codified at 38 U.S.C. § 1774f. Thus, the Veteran's appeal as to this matter must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.