Citation Nr: 22014313 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 19-06 089 DATE: March 12, 2022 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The evidence persuasively establishes the Veteran's countable annual income exceeds the maximum annual pension rate (MAPR) for a veteran without dependents. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.32, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 decision which denied entitlement to nonservice-connected pension benefits on the basis that the Veteran's income was excessive for VA pension purposes. The Board notes that the issue of entitlement to service connection for posttraumatic stress disorder is also on appeal and will be addressed in a separate decision. Entitlement to nonservice-connected pension benefits. The Veteran contends that he is entitled to nonservice-connected pension benefits. A veteran who meets wartime service requirements and who is permanently and totally disabled due to disability not the result of willful misconduct is entitled to a rate of pension set by law, reduced by the amount of his countable income. 38 U.S.C. § 1521; 38 C.F.R. § 3.23. Countable income consists of payments of any kind from any source received during a 12-month annualization period (e.g., a year), unless specifically excluded. 38 C.F.R. § 3.271. At issue is whether the countable annual income of the Veteran exceeds the applicable maximum annual pension rate (MAPR) limit set by law. The Board finds that entitlement to nonservice-connected pension benefits is not warranted because the evidence persuasively establishes the Veteran's countable annual income exceeds the MAPR for a veteran without dependents throughout the appeal period. Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 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 Veteran's countable annual income. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). Countable income and excludable expenses are based on 12-month annualization periods. 38 C.F.R. §§ 3.271, 3.272. Annualization periods have two types, the initial annualization period and calendar years. After the initial year, countable income is generally based on the calendar year. When the initial annualization period and the first calendar year beginning after the initial award overlap, the greater benefit is awarded. 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. 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 Veteran 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. For the purpose of determining initial entitlement or resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable MAPR by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). In the February 2016 decision on appeal, VA determined that from July 1, 2015, the Veteran's countable income exceeded the MAPR amount for a Veteran without dependents. Specifically, effective July 1, 2015, VA calculated the Veteran's yearly income as $22,750 with medical expenses of $1,258. In an April 2017 decision, VA continued to find that the Veteran's countable income exceeded the MAPR amount for a Veteran without dependents. Specifically, effective March 1, 2017, VA calculated the Veteran's yearly income as $22,824 with medical expenses of $1,332. Turning to the evidence of record, on a June 2015 VA Form 21-526 (Veteran's Application for Compensation and/or Pension), the Veteran reported $1,786 in monthly SSA benefits. The Veteran did not report any other income or unreimbursed medical expenses. A February 2016 SSA Inquiry reflects the Veteran was in receipt of monthly SSA benefits of $1,895 from December 1, 2014, or $22,740 yearly, and paid $104.90 per month, or $1,259 yearly, in Medicare premiums. Unreimbursed medical expenses in excess of five percent of the applicable MAPR are used to reduce countable income. The MAPR effective December 1, 2014, for a Veteran without dependents is $12,868, and five percent of that amount is $643. See Veterans Benefits Administration, Veteran's Pension Rate Table Effective 12/1/14 (https://www.benefits.va.gov/PENSION/rates_veteran_pen14.asp). Therefore, in calculating the Veteran's countable income, only unreimbursed medical expenses in excess of $643 can be considered. In this case, the record reflects that the Veteran had unreimbursed medical expenses of $1,259. Deducting $643 from $1,259 results in $616 in countable unreimbursed medical expenses. Deducting the amount of countable unreimbursed medical expenses of $616 from the Veteran's income of $22,740 results in countable income of $22,124 from July 1, 2015, which exceeds the applicable MAPR of $12,868 for a veteran without dependents. As such, pension benefits are not warranted. On an August 2016 VA Form 21-527EZ (Application for Pension), the Veteran reported $1,800 in monthly SSA benefits. The Veteran did not report any other income or unreimbursed medical expenses. A March 2017 SSA Inquiry reflects that the Veteran's monthly SSA benefit increased to $1,902 from December 1, 2016, or $22,824 yearly, and that he paid $111 per month, or $1,332 yearly, in Medicare premiums. Unreimbursed medical expenses in excess of five percent of the applicable MAPR are used to reduce countable income. The MAPR effective December 1, 2016, for a Veteran without dependents is $12,907, and five percent of that amount is $645. See Veterans Benefits Administration, Veteran's Pension Rate Table Effective 12/1/16 (https://www.benefits.va.gov/PENSION/rates_veteran_pen16.asp). Therefore, in calculating the Veteran's countable income, only unreimbursed medical expenses in excess of $645 can be considered. In this case, the record reflects that the Veteran had unreimbursed medical expenses of $1,332. Deducting $645 from $1,332 results in $687 in countable unreimbursed medical expenses. Deducting the amount of countable unreimbursed medical expenses of $687 from the Veteran's income of $22,824 results in countable income of $22,137 from December 1, 2016, which exceeds the applicable MAPR of $12,907 for a veteran without dependents. As such, pension benefits are not warranted. Finally, the Board notes that the most recent evidence of record on the Veteran's income and medical expenses is dated in 2017. However, during the July 2021 Board hearing, the Veteran testified that his income and medical expenses had not significantly changed. As such, the Board finds that a remand to obtain updated information would only serve to delay adjudication of the Veteran's claim. (Continued on next page) In sum, the Board finds the evidence persuasively establishes that from July 1, 2015, the Veteran had a countable annual income which exceeds the applicable MAPR for a veteran without dependents. As the Veteran's income is excessive for VA pension purposes, his claim must be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.