Citation Nr: 22015697 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 19-02 801 DATE: March 18, 2022 ORDER Entitlement to nonservice connected pension benefits is denied. FINDING OF FACT The Veteran's countable income exceeds applicable maximum annual pension rates (MAPR) for a Veteran with no dependents. CONCLUSION OF LAW The criteria for entitlement to payment of non-service-connected pension benefits based on the Veteran's countable income are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1974 to June 1976. The Board notes that the December 2018 Statement of the Case indicated that the issue on appeal is nonservice connected pension at the aid and attendance rate; however, the March 2017 rating decision only granted entitlement to non-service connected pension. Additionally, all the calculations of record, to include those in the December 2018 Statement of Case, are based on the MAPR for a Veteran without dependents, they are not calculated using the higher MAPR at the aid and attendance rate. There is no rating decision of record granting entitlement to nonservice connected pension at the aid and attendance rate, nor has the issue been reasonably raised by the record. The Board finds the conflicting language used in the Statement of the Case to be a scrivener's error based on a holistic review of the evidence of record. Thus, the issue of nonservice connected pension at the aid and attendance rate is not on appeal. Entitlement to nonservice connection pension benefits The Veteran contends he is entitled to pension benefits due to increased medical expenses. Entitlement exists if, among other things, the veteran's income is not in excess of the applicable maximum allowable pension rate, and specified at 38 C.F.R. § 3.23, as changed periodically, and reported in the Federal Register. See 38 U.S.C. § 1521. The maximum rates for a veteran's pension are reduced dollar for dollar by the amount of the countable annual income of a veteran, his spouse, and any dependent. 38 U.S.C. § 1521; 38 C.F.R. § 3.23 (d). 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. Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); VA pension benefits; payments under Chapter 15 of Title 38, United States Code, including accrued pension benefits; reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner). 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 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 maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). In essence, VA subtracts the total amount of countable income in one year, less excluded income, from the MAPR for that year; then, if a positive amount remains, the rest is divided by twelve to determine the monthly death pension benefit. When a change in the MAPR occurs, the Board repeats the calculation with the new MAPR as the starting amount. 38 C.F.R. § 3.273(b)(1). When a change in income occurs, the MAPR will be reduced by the new annualized income effective on the date that the increased income began. 38 C.F.R. § 3.273(b)(2). On March 21, 2017, the Veteran filed a claim for nonservice connected pension benefits. A March 2017 rating decision found the Veteran eligible for entitlement to nonservice connected pension; however, the Veteran was notified in April 2017 that his income exceeded the maximum annual disability pension limit. See Notification Letter April 2017. Beginning December 1, 2016, the MAPR for a Veteran without dependents was set at $12,907 and the associated five percent of MAPR deduction was $645. In his claim for pension, the Veteran reported a gross monthly income of $1,200 from Social Security; however, a Social Security inquiry revealed a monthly payment of $1,391. See Share Print Screen April 2017. Therefore, in determining the Veteran's income, the Agency of Original Jurisdiction (AOJ) considered Social Security income of $1,391 monthly ($16,692 annually). The AOJ also considered medical expenses of $134 per month ($1,608 annually) for Medicare Part B premiums in excess of $645 reducing the Veteran's countable income to $15,729, which exceeded the applicable MAPR of $12,907. In the notice of disagreement, the Veteran alleged additional medical expenses due to illness. An August 2018 development letter requested the Veteran submit his additional medical expenses by fully completing the attached VA Forms 21-8416 Medical Expense Reports for the following time periods: March 21, 2017 to December 31, 2017; January 1, 2018 to March 31, 2018; and April 1, 2018 to current date. In response, the Veteran submitted a medical expense report for January 2018 reporting transportation expenses for medical purposes totaling $580 paid for his spouse. See VA 21-8416 September 2018. These expenses are notable as the Veteran claimed they were for his spouse; however, in his pension claim he reported being a widower with no dependents. Additionally, the Veteran's countable exceeded the MAPR by $2,822 ($15,729-$12,907); thus, even with additional medical expenses of $580, his countable income still exceeds the MAPR. The AOJ sent another request for evidence, specifically requesting clarification of the Veteran's marital history and medical expenses and provided a VA Form 21-686c, Declaration of Status of Dependents and VA 21-8416 Medical Expense Report. See MAP-D Development Letter November 2018. In December 2018 the Veteran's representative via telephone reported that the Veteran's spouse was deceased, no other information, to include the requested VA Form 21-686c Declaration of Status of Dependents or updated VA 21-8416 Medical Expense Report was provided. As the Veteran did not provide the requested information, the Board finds no additional unreimbursed medical expenses to be deducted from his income. Thus, the only unreimbursed medical expenses are the Veteran's Medicare Part B premiums and the only income of record is the Social Security income of $1,391 monthly ($16,692 annually), which were both properly considered by the AOJ in the calculation of his countable income. As such, the Veteran's countable income for VA pension purposes is $15,729, which exceeds the MAPR effective December 1, 2016 of $12,907 by $2,822. Accordingly, the claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.