Citation Nr: A25027331 Decision Date: 03/25/25 Archive Date: 03/25/25 DOCKET NO. 240531-445472 DATE: March 25, 2025 ORDER The termination of nonservice-connected pension effective April 1, 2013 was proper; entitlement to payment of VA pension benefits is denied. FINDINGS OF FACT 1. The Veteran began receiving Social Security Disability Insurance (SSDI) in February 2013. 2. For the entire appeal period from April 1, 2013, the Veteran's countable income exceeded applicable maximum annual pension rates. CONCLUSION OF LAW From April 1, 2013, the criteria for payment of nonservice-connected pension benefits based on countable income have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDINGS AND CONCLUSION The decision on appeal was issued in August 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2024 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 August 2023 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. Whether the termination of nonservice-connected pension effective April 1, 2013 was proper. 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 revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). 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). 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 Board finds, as an initial matter, that the termination of nonservice-connected pension benefits effective April 1, 2013 was procedurally proper. The AOJ provided the Veteran with a November 2022 notice letter proposing to terminate pension benefits effective April 1, 2013. The AOJ informed the Veteran that an SSA data match indicated that he had been in receipt of SSA income which was previously not considered in his award. He was informed that he had 60 days to submit evidence to show that the proposed action should not be taken, and that payments would continue at the present rate for 60 days following the date of the notice letter. He was informed that he could minimize a potential overpayment by sending written notice asking to reduce payments while VA reviewed his case. He was also informed of his right to a personal hearing to present evidence or argument in support of his claim. The Veteran did not submit any evidence pertaining to SSA income within 60 days of the November 2022 letter. Benefits were, therefore, terminated pursuant to the August 2023 decision on appeal. Therefore, the Board finds that due process requirements have been met with regard to the termination of benefits. The RO issued a proposal for the reduction of benefits, and the Veteran was afforded over 60 days to respond prior to the termination of benefits and was informed of his right to a hearing. The Board will next address whether the termination of benefits based on countable income was proper. The Veteran contends in his notice of disagreement that he is in receipt of Social Security Disability, and that this is his only source of income. He requested reconsideration and reinstatement of his pension benefits. VA pension is an income dependent benefit and all payments of any kind, to include Social Security benefits, are included as countable income to calculate the amount of benefits to be awarded. See 38 C.F.R. § 3.273(b). Here, the Veteran's SSA disability benefits, SSDI benefits, are countable toward income for VA pension purposes. The record shows that the Veteran had been in receipt of pension since April 2010. He was initially awarded the maximum annual pension rate based on a countable income of $0.00. In an unappealed June 2015 decision, his pension benefit was adjusted pursuant to income identified on an income verification match (IVM) for the 2010 tax year. $191 in wages were considered as a continuing income source, as well as $681 in yearly unearned income which the AOJ identified as retirement income. A November 2022 and August 2023 SSA Inquiries shows that the Veteran began receiving SSA disability benefits with entitlement beginning in February 2013. The Veteran does not dispute that he is in receipt of SSA disability benefits, but asserts instead asserts that SSA disability is his only source of income. The SSA Inquiries identified monthly SSA payment amounts for the years from 2016 to 2022. Additionally, November 2022 SSA Cost of Living Adjustment (COLA) Calculator provided by the AOJ estimated SSA income amounts from the 2013 date of entitlement through 2022. See November 2022 User Calculations. Annualized income is used to calculate countable income, and the Board has entered the Veteran's countable income in the table below based on his SSA benefit only, along with the MAPR for each year. The Veteran has not identified any unreimbursed medical expenses during the appeal period to reduce countable income. Monthly SSA Countable Income MAPR 4/2013 $1165 $13,980 $12,465 2014 $1182 $14,184 $12,652 2015 $1203 $14,436 $12,868 2016 $1203 $14,436 $12,868 2017 $1206 $14,472 $12,907 2018 $1230 $14,760 $13,166 2019 $1265 $15,180 $13,535 2020 $1285 $15,420 $13,752 2021 $1302 $15,624 $13,931 2022 $1379 $16,548 $14,753 As shown in the table above, even without consideration of the $191 in wages and $681 in yearly unearned income considered by the AOJ in the August 2023 decision on appeal, the Veteran's income from SSA alone exceeds the applicable maximum annual pension rates. Therefore, the Veteran's countable income was a bar to the receipt of pension benefits and the termination of benefits from April 1, 2013 was proper. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kung, Christine 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.