Citation Nr: A25041274 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210401-154113 DATE: May 6, 2025 ORDER The appeal as to the matter of whether the adjustment of nonservice-connected (NSC) pension benefits, effective January 1, 2013, and subsequent termination of the payment of NSC pension benefits from January 1, 2014, through January 31, 2021, was proper, is dismissed. REMANDED The matter of whether the continued termination of the payment of NSC pension benefits from February 1, 2021, is proper, is remanded. FINDING OF FACT In an August 2022 decision, the Department of Veterans Affairs (VA) Committee on Waivers and Compromises (Committee) granted a waiver of indebtedness for overpayment of NSC pension benefits for the full amount of $114,987.60, which waiver resulted in a de facto non-reduction and non-termination of NSC pension benefits for the period from January 1, 2013, through January 31, 2021. CONCLUSION OF LAW As the appeal as to matter of whether the adjustment and termination of the payment of NSC pension benefits for the period from January 1, 2013, through January 31, 2021, was proper has been rendered moot, the criteria for dismissal of the claim are met. 38 U.S.C. §§ 1521, 7104; 38 C.F.R. §§ 3.23, 20.103, 20.104, 20.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from December 1972 to January 1978. This appeal to the Board of Veterans' Appeals (Board) originated from a January 2021 decision in which a VA agency of original jurisdiction (AOJ) adjusted the payment of the Veteran's NSC pension benefits, effective January 1, 2013, and terminated the payment of NSC pension benefits payments, effective January 1, 2014. Unfortunately, the Veteran passed away in April 2022, while this appeal was pending. In January 2025, the AOJ granted the request of the Veteran's surviving spouse to be substituted as the appellant in this appeal. In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing option. In January 2025, the Appellant testified at a Board virtual hearing before the undersigned VLJ; a hearing transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the January 2021 AOJ)decision on appeal, as well as any evidence submitted by the Appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the issue the Board is denying, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the issue of whether the continued termination of the payment of NSC pension benefits from February 1, 2021, is proper, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Dismissal of matter of whether the adjustment and termination of the payment of NSC pension benefits for the period from January 1, 2013, through January 31, 2021, was proper In January 2021, the AOJ notified the Veteran of its determination that his pension benefits were being adjusted, effective January 1, 2013, and terminated, effective January 1, 2014, due to income, in the form of Social Security Administration (SSA) benefits received by his spouse, that was not reported and had not been included in his pension award. Such termination of pension benefits payments resulted in the creation of an overpayment debt due to the Veteran having already received NSC pension benefits payments for the period in question. Subsequently, an August 2022 Decision on Waiver of Indebtedness reveals that the Committee granted the Appellant a waiver for the full amount of the $114,987.60 debt associated with the overpayment of NSC pension benefits for the period from January 1, 2013, through January 31, 2021. The Committee's waiver of the NSC pension benefits debt renders the appeal challenging the propriety of the adjustment and termination of payment of NSC pension benefits moot, where any determination as to the propriety of the reduction or termination of the pension benefits could not result in any additional benefit to the appellant. Thus, the pension benefits were, in fact, not reduced or terminated during the period in question, in that the Appellant is under no requirement to pay back any NSC pension benefits payments for the period from January 1, 2013, through January 31, 2021. Cf. Waterhouse v. Principi, 3 Vet. App. 473 (1992) (finding that, after a waiver has been granted, a claimant has no standing to challenge the validity of a debt). Accordingly, there remains no justiciable case or controversy on appeal with respect to the adjustment and termination of the Veteran's NSC pension benefits for the time period from January 1, 2013, through January 31, 2021. The Board acknowledges that, unlike a finding that an overpayment was improperly created, a grant of a waiver might potentially have tax consequences (since the waived amount could have qualified as income and might have placed the appellant in a higher income bracket or subjected her to taxation even if VA benefits were her sole source of income and do not qualify as taxable). Where the decision waiving the debt, however, renders no additional potential benefit to the appellant through the adjudication of the matter concerning the propriety of the adjustment and termination of the NSC pension benefits for the period in question, with attention to the holding of the United States Court of Appeals for Veterans Claims (Court) in Waterhouse, the Board finds that the full grant of the waiver qualifies as a complete grant of the benefit sought in this appeal with respect to the period in question. Thus, the question as to whether the adjustment and termination of payment of NSC pension benefits for the period from January 1, 2013, through January 31, 2021, has been rendered moot. The Court has held that the appropriate disposition of a moot claim is to dismiss the appeal. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). 38 U.S.C. § 7104; 38 C.F.R. § 20.104. REASONS FOR REMAND Whether the continued termination of the payment of NSC pension benefits from February 1, 2021, is proper Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802(a).? Having reviewed the evidence of record, the Board finds that further AOJ action on the matter of whether the continued termination of payment of NSC pension benefits from February 1, 2021, is proper is warranted to correct duty to assist errors that occurred prior to the January 2021 decision on appeal and pursuant to the necessity to fulfill statutory and regulatory duties with respect to this claim. See 38 C.F.R. § 20.802. While the AOJ discontinued the Veteran's pension benefits payments based on the finding that the Veteran's spouse had received SSA disability benefits that had not previously been reported, and which, when included with the Veteran's countable income, resulted in the countable income exceeding the applicable maximum annual pension rate (MAPR), the Board observes that the results of January 2021 inquiries regarding the amount of the Veteran's and the Appellant's SSA benefits revealed that they had both been awarded Title XVI status. Thus, the evidence indicates a likelihood that the Veteran and/or the appellant has been in receipt of Supplemental Security Income (SSI). While disability benefits administered by the SSA are not specifically excluded from countable income under 38 C.F.R. § 3.272, and therefore, are generally included as countable income, SSI is not considered countable income for VA pension benefits purposes. See M21-1 Part IX, subpart iii, Chapter 1, Section B.1.k. Accordingly, any SSI received by the Veteran and/or the Appellant would be specifically excluded from the countable household income. Where the SSA inquiries do not clearly indicate whether SSI was being received during the period in question, in order to properly determine the matter of entitlement to NSC pension benefits payments, including the reinstatement of terminated benefits from February 1, 2021, evidence is required to clarify the amount of SSA benefits, to include SSI, if any, received by the Veteran and the Appellant during the pertinent period. Additionally, after being notified of the proposed termination of payment of pension benefits payments in August 2020, the Appellant attempted to report unreimbursed medical expenses for 2020, and she testified as to having multiple other medical expense; she was not, however, provided the opportunity to submit a report of medical expenses or anticipated medical expense, on VA Form 21P-8416, for the annualization period from February 1, 2021. Accordingly, this matter is hereby REMANDED for the following action: 1. Take appropriate action to determine the type(s) and total amount(s) of SSA benefits received by the Veteran and his spouse (the current appellant) since February 1, 2021. Specifically obtain clarification as to what portion of monthly SSA benefits paid, if any, consisted of Supplemental Security Income. As may be necessary, contact the Social Security Administration and request reports of monthly benefits, including a specific notation of the amount of SSI benefits, paid to the Veteran and his spouse during the pertinent period. 2. Provide the Appellant with copies of VA Form 21P-8416, Medical Expense Report, and ask her to report all unreimbursed medical expenses for each appropriate annualization period, from February 1, 2021, on these forms. (Continued on the next page) ? 3. Readjudication of the matter of entitlement to the payment of NSC pension benefits as of February 1, 2021, must include calculation and itemization of all countable income and unreimbursed medical expenses during the pertinent period. Appropriate notification of all calculation should be provided to the Appellant. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.