Citation Nr: 25005667 Decision Date: 04/25/25 Archive Date: 04/25/25 DOCKET NO. 17-05 014A DATE: April 25, 2025 ORDER Termination of nonservice-connected pension benefits effective February 1, 2008, was proper; restoration of benefits is denied. FINDINGS OF FACT 1. Beginning in 2008, the Veteran received income that he did not report to VA. VA was notified of this additional income in August 2011 and April 2012. 2. From February 1, 2008, the Veteran's income exceeded the maximum applicable pension rate for a veteran without dependents. CONCLUSION OF LAW From February 1, 2008, the Veteran's income was excessive for pension purposes; and the termination of his pension benefits effective February 1, 2008, to reflect receipt of such income was proper. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 decision which retroactively terminated pension benefits on the basis of excessive income. In March 2023, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript is of record. In August 2023 and August 2024, the Board remanded the matter for further development. Whether termination of nonservice-connected pension benefits effective February 1, 2008, was proper. The Veteran seeks restoration of his nonservice-connected pension benefits. Upon review of the evidence of record, the Board finds that the termination of the Veteran's nonservice-connected pension benefits effective February 1, 2008, was proper and that restoration of the payment of pension benefits is not warranted. Pursuant to 38 U.S.C. § 1521, entitlement to nonservice-connected pension benefits exists if, among other things, the veteran's income is not in excess of the applicable maximum allowable pension rate (MAPR), 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 rate for a veteran's pension is 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) are to be included except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271, 3.272. Income from the Social Security Administration (SSA) is not specifically excluded, and is, therefore, included as countable income. Medical expenses in excess of five percent of the maximum annual pension rate (MAPR), which have been paid by the appellant, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). By way of history, in an October 2004 decision, VA granted pension benefits payable from April 1, 2004; the Veteran's payment amount was based on his having no income. In a December 2004 notification letter, the Veteran was advised to inform VA right away if his income and medical expenses changed. VA letters dated in November 2007, November 2008, December 2008, December 2009, and December 2010 also advised the Veteran to inform VA of any changes in income. In August 2011, VA was notified of previously unknown earned income for the Veteran in 2008 from a local government in the amount of $37,747 and from the S. Foundation in the amount of $3,026, as well as unearned income from gambling winnings in the amount $2,500. In an October 2011 letter, VA notified the Veteran of the discrepancy in his reported income for 2008. In a November 2011 response, the Veteran reported that his son had used his Social Security number. In April 2012, VA was notified of previously unknown earned income for the Veteran in 2009 from a local government in the amount of $12,740, as well as unearned income in the amount of $9,984. In an October 2012 letter, VA notified the Veteran of the discrepancy in his reported income for 2009. In a November 2012 response, the Veteran again reported that his son had used his Social Security number. In an October 2014 letter, VA proposed to retroactively terminate the Veteran's pension benefits effective February 1, 2008, on the basis of excessive income. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. 38 C.F.R. § 3.103(a). Except as otherwise provided in 38 C.F.R. § 3.103(b)(3), no award of compensation, pension, or dependency and indemnity compensation shall be terminated, reduced, or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that adverse action should not be taken. 38 C.F.R. § 3.103(b)(2). 38 C.F.R. § 3.103(b)(3) states that in lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action if an adverse action is based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status, failure to return a required eligibility verification report, evidence reasonably indicates that a beneficiary is deceased, the beneficiary renounces VA benefits, the beneficiary returns to active service, or due to garnishment. See 38 C.F.R. § 3.103(b)(3)(i)-(vi). 38 C.F.R. § 3.105(h) states that except as otherwise specified at 38 C.F.R. § 3.103(b)(3), where a reduction or discontinuance of benefits is warranted by reason of information received concerning income, net worth, dependency, or marital or other status, a proposal for the reduction or discontinuance of benefits will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons for the contemplated action and will be given 60 days for the presentation of additional evidence to show that the benefits should be continued at their present level. Unless otherwise provided by 38 C.F.R. § 3.105(i), if additional evidence is not received within that period, final adverse action will be taken, and the award will be reduced or discontinued effective as specified under the provisions of 38 C.F.R. §§ 3.500-3.503. 38 C.F.R. § 3.105(i)(1) states that in the advance written notice concerning the proposed action under 38 C.F.R. § 3.105(h), the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that such a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. Only once the predetermination procedures specified in 38 C.F.R. § 3.105(h) have been completed will VA take final action. 38 C.F.R. § 3.105(i)(2). Here, the October 2014 VA notification letter proposed to terminate nonservice-connected pension benefits effective February 1, 2008, on the basis that VA had received evidence showing additional income. VA requested the Veteran submit additional evidence on his income and medical expenses for each year since 2008, and that if such was not received, VA would terminate his pension benefits. VA informed the Veteran that he had 60 days to submit evidence, and also explained how to receive a personal hearing. VA informed the Veteran that if a hearing request was received within 30 days from the date of the notification letter, VA would continue payments at the present rate until the hearing was held and testimony reviewed, but that this could also result in the creation of an overpayment which must be repaid. VA further notified the Veteran that he could request a hearing after 30 days, but that VA may continue with the proposed action. In December 2014, the Veteran submitted a VA Form 21-0516, Improved Pension Eligibility Verification Report for an unknown year. He reported no income and that he started Medicaid in July 2012. In February 2015, VA again requested the Veteran complete a VA Form 21-0516, Improved Pension Eligibility Verification Report, for each year since 2008. VA also requested the Veteran submit evidence, such as a police report or court document, showing that the Veteran's son had used his identify. VA informed the Veteran that unless he provided information showing his son had used his identity, VA would attribute the income to the Veteran. In a March 2015 letter, VA again requested the Veteran complete a VA Form 21-0516, Improved Pension Eligibility Verification Reports, from 2008 to 2015, noting that while the Veteran reported no income, SSA reported benefits paid to the Veteran beginning in August 2010. The Veteran did not respond, and in a May 2015 letter, VA terminated pension benefits effective February 1, 2008. The Veteran filed a timely notice of disagreement and perfected an appeal to the Board. Here, the Board finds that the notice requirements of 38 C.F.R. § 3.103 and § 3.105 were met. The Veteran was notified of the proposed termination in a letter setting forth all material facts and reasons. He was given 60 days to provide additional information on his income and medical expenses, to include evidence showing that his income was less than VA found in the proposed action letters. However, in August 2023, the Board remanded the matter to give the Veteran an additional opportunity to submit evidence of his income and medical expenses. The Board also directed VA to obtain information on the Veteran's income from 2008 to 2015 utilizing information from government agencies such as the Internal Revenue Service. In an August 2023 letter, VA requested the Veteran submit information on his income and medical expenses from 2008 to 2015. In an October 2023 letter, VA requested the Veteran submit information on his income and medical expenses from 2008 to 2015, as well as complete the appropriate forms to obtain his income information from the IRS. In December 2023, the Veteran indicated that he had mailed the requested information. However, VA did not receive any evidence, so in a February 2024 letter, VA again requested the Veteran provide information on his income and medical expenses, as well as complete the appropriate forms to obtain his income information from the IRS. In February 2024, the Veteran indicated he had no additional evidence to submit and ask that his claim be decided on the evidence of record. In August 2024, the Board remanded the matter, noting that VA had not requested the Veteran's income information from the IRS or SSA. In a September 2024 letter, VA requested the Veteran complete and return the appropriate forms for requesting his income information from the IRS and SSA. The Veteran did not provide the completed forms, and VA returned the case to the Board for appellate review. On review, the evidence of record demonstrates that in 2008, the Veteran received income of $43,273, and he did not report any medical expenses. The applicable MAPR pension rate for a Veteran without dependents at the standard rate was $11,181 effective December 1, 2007. Thus, the Veteran's income exceeded the applicable MAPR for 2008. In 2009, the Veteran received income of $22,724, and he did not report any medical expenses. The applicable MAPR pension rate for a Veteran without dependents at the standard rate was $11,830 effective December 1, 2008. Thus, the Veteran's income exceeded the applicable MAPR for 2009. As such, the Board finds that VA properly terminated nonservice-connected pension benefits effective February 1, 2008. Furthermore, to the extent the Veteran may have been entitled to pension benefits from 2010, the Board finds that the Veteran has not provided the information necessary to determine whether he is entitled to pension benefits. The Board acknowledges that the Veteran has been homeless during the period on appeal but notes that he has reported that he could receive mail at his address of record, and VA correspondence has not been returned as undeliverable. The Board also acknowledges that the Veteran reports he no longer has access to old information on his income. However, VA routinely advised the Veteran to report any changes in his income and medical expenses prior to VA becoming aware of his unreported income, and the Veteran failed to do so. Furthermore, the Veteran did not respond to VA's request to complete the appropriate forms so that VA could request information from the IRS and SSA, even if the Veteran no longer had access to that information. The Veteran also did not respond to VA's request to provide documentation that his identity had been used fraudulently; therefore, the Board is unable to find that income from 2008 and 2009 is not attributable to the Veteran. The Board emphasizes that the duty to assist is a two-way street, and the Veteran cannot sit idly by when his participation is necessary for the development of evidence in his case. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). VA and the Board has provided the Veteran with ample opportunities to develop evidence in support of his claim, and the Board finds that any additional opportunities to obtain this information would be futile. Accordingly, the evidence is persuasively against the claim for restoration of pension benefits from February 1, 2008. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable, and the Veteran's claim is denied. C. CRAWFORD 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.