Citation Nr: A24037293 Decision Date: 07/10/24 Archive Date: 07/10/24 DOCKET NO. 210312-142809 DATE: July 10, 2024 ORDER As the reduction of the Veteran's nonservice-connected pension benefits, effective May 1, 2002, was improper, restoration of the prior pension rate is granted. FINDING OF FACT The written notice of the proposed reduction of the Veteran's nonservice-connected pension benefits was returned as undeliverable and was not resent to the Veteran's other possible and plausible addresses available prior to the issuance of the December 2020 determination that effectuated the reduction. CONCLUSION OF LAW The criteria for restoration of nonservice-connected pension benefits, reduced effective May 1, 2002, have been met. 38 U.S.C. §§ 1503, 1541; 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 Marine Corps from January 1975 to December 1975. During his period of service, he earned the Good Conduct Medal. In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Propriety of reduction of the Veteran's nonservice-connected pension benefits The Veteran's nonservice-connected pension benefits were reduced, effective May 1, 2002, based on the finding that his countable annual income exceeded the amount previously reported. This determination was made based on VA's receipt of information revealing the Veteran received $7,500.00 per year in additional income for yard care and housework. 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 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. 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). 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 five 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 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 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). Prior to reducing or terminating benefits by reason of information received concerning income, VA is required to comply with pertinent VA regulations concerning due process, including the creation of a proposal for the reduction or termination of benefits. 38 C.F.R. §§ 3.103(b)(3), 3.105(h). The Agency of Original Jurisdiction (AOJ) must issue an administrative action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given a period of 60 days within which he or she may submit additional evidence or request a predetermination hearing. If additional evidence is not received in that period, a final administrative action may be taken to effectuate the reduction. 38 C.F.R. § 3.105(h). Where a reduction of a running pension award is warranted due to an increase in income, the reduction shall be made effective the end of the month in which the increase occurred. 38 U.S.C. § 5112(b)(4)(A); 38 C.F.R. § 3.660(a)(2). The Board notes as an initial matter that the critical question in this case is whether the reduction of the Veteran's nonservice-connected pension benefits was procedurally proper. Here, the evidence of record indicates that the AOJ's notice of the proposed reduction of nonservice-connected pension benefits was returned as undeliverable. Accordingly, an analysis of the presumption of regularity is warranted. The Court has recognized a presumption of regularity that VA mailed a copy of relevant decisions to the last known address of the Veteran. Clark v. Principi, 15 Vet. App. 61, 63 (2001); Woods v. Gober, 14 Vet. App. 214, 220 (2000). In the absence of clear evidence to the contrary, the Court will presume that public officers have properly discharged their official duties by mailing a copy of a decision to the last known address of the veteran on the date that the decision was issued. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (citing Butler v. Principi, 244 F.3d 1337, 1339 (Fed. Cir. 2001)); Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). For this presumption to attach, VA must provide notice to the latest address of record for the claimant. Crain v. Principi, 17 Vet. App. 182, 186 (2003). The Veteran has the burden of overcoming the presumption by clear evidence to the contrary. Davis v. Principi, 17 Vet. App. 29, 36 (2003). The mere assertion of nonreceipt is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the decision. Davis, 17 Vet. App. 29 at 37; Crain, 17 Vet. App. at 186. The Court has held that, "no legal principle bars the use of the presumption of regularity simply because the record does not contain a dated copy of the decision notice itself or some other document reflecting the precise date on which the notice was purportedly sent." Miley, 366 F.3d at 1347. Among the evidence sufficient to overcome the presumption is a showing that a decision is returned as undeliverable and that there are other possible addresses available in the claims file. Davis, 17 Vet. App. 29 at 37. In general, [a]bsent any evidence that the veteran took affirmative steps specifically to notify VA of an address change . . . and absent evidence that mailings to the address appearing on [the claim application] had been returned as undeliverable, VA is entitled to rely on that address as being the veteran's last known address and to use it for purposes of mailing a copy of its decision. Cross v. Brown, 9 Vet. App. 18, 20 (1996) (citing Thompson v. Brown, 8 Vet. App. 169, 179 (1995)); see also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Historically, the Veteran was awarded nonservice-connected pension benefits, effective May 1, 2002, by a May 2002 determination. A proposal to reduce the nonservice-connected pension benefits was mailed to the Veteran on March 17, 2020. See MAP-D Development Letter, dated March 17, 2020. The notice was returned as undeliverable on March 31, 2020. The Board notes that notice was sent to the Veteran at a Virginia Beach, Virginia address, which has been the Veteran's address of record with VA since, at least, June 2009. See SHARE Print Screens, dated June 18, 2009. The Veteran also received annual cost of living adjustment (COLA) notification letters from VA at the same address. See for example, Notification Letters from December 2011, December 2012, December 2013, December 2014, and December 2016. However, beginning in December 2016, the Board notes that VA's mailings to the Veteran's Virginia Beach, Virginia address were returned by the USPS as undeliverable. Here, the Board finds that the AOJ did not comply with the procedural requirements under 38 C.F.R. § 3.105(e). Although the AOJ is entitled to the presumption that it properly discharged its official duties in mailing notice of the reduction to the Veteran at his last address of record, that presumption may be rebutted where the evidence shows both that the mailing was returned as undeliverable and that there were other possible and plausible addresses available at the time of the rating decision. See Crain, 17 Vet. App. at 187. Notably, a Social Security Administration (SSA) inquiry associated with the record in March 2020 lists additional addresses for the Veteran. See SSA Profile and Benefit Data, dated March 17, 2020. Thus, the record clearly shows that the mailing to the Virginia Beach, Virginia address was returned as undeliverable and the Veteran's Norfolk, Virginia address was known to the AOJ prior to the issuance of the December 2020 determination. Moreover, the Board notes that the December 2020 final rating determination reducing the Veteran's nonservice-connected pension benefits was sent to the Veteran at another Norfolk, Virginia address. See Notification Letter, dated December 4, 2020. However, there is no indication in the record revealing how VA obtained the updated mailing address nor had the address been verified in any way. Additionally, there is no indication that the AOJ attempted to provide notice of the proposed reduction at the updated address prior to taking final action in December 2020. Based on the foregoing, the Board finds that the presumption of regularity has been rebutted. The AOJ reduced the Veteran's nonservice-connected pension benefits without providing the notice required under 38 C.F.R. § 3.105(e) and thereby deprived the Veteran of due process. Where VA has reduced a Veteran's benefits without observing applicable laws and regulations, such a reduction is void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). Accordingly, the reduction was improper, and the Veteran's nonservice-connected pension benefits are reinstated, effective May 1, 2002. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.