Citation Nr: 0005692 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-18 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the amount withheld from the veteran's Social Security benefits to pay for child support in arrears is properly included as countable income for purposes of improved disability pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran served on active duty from August 1954 to March 1958. In July 1998, the Department of Veterans Affairs (VA) Regional Office (RO), Cleveland, Ohio, concluded that the full amount of veteran's Social Security entitlement, including the amount withheld to pay back child support, should be included in determining the veteran's countable income for VA improved disability pension benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran was awarded improved disability pension benefits in September 1995; his only countable income was his Social Security benefits. 3. In July 1998 the Social Security Administration advised the appellant that the veteran's monthly benefits were lowered from $917 to $417, effective with his July 1998 check, due to a court order for back support. CONCLUSION OF LAW The $500 monthly withheld for back support from the veteran's payment of Social Security benefits was properly included as countable income for purposes of improved disability pension benefits. 38 U.S.C.A. §§ 1503, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.23, 3.271, 3.272 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is that the $500 withheld from the veteran's Social Security payment monthly pursuant to a court order for back child support should not be included as countable income for purposes of improved disability pension benefits. The Board notes that it has found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The record reflects that the veteran was initially awarded improved disability pension benefits commencing in May 1993. As of September 1995 his only countable income for VA purposes was his Social Security benefits. In July 1998 the appellant was advised by the Social Security Administration that the veteran's monthly Social Security benefits payment was being reduced due to a court order for back support. The appellant has maintained that, with the $500 monthly withheld by Social Security, the veteran can not be independent and he will become homeless. She asserts that the funds were withheld without proper notification to the veteran and that the State of California waited too many years to collect the money for a child that the veteran has never known and who his former spouse put into foster care rather than raise herself. The Board is bound to apply the law and regulations as written. The Board does not have the jurisdiction to determine the validity of the actions, apparently taken by the State of California, to garnish the veteran's Social Security payments for the payment of child support in arrears. Rather, our review is limited to the legal question of whether the amount of such garnishment should be counted as income for VA improved disability pension purposes. The maximum rate of improved disability pension is reduced by the amount of the countable annual income of the veteran. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(b). In determining income for purposes of entitlement to improved disability pension, payments of any kind or from any source are counted as income during the 12 month annualization period in which received unless specifically excluded. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271. The following shall be excluded from countable income for the purpose of determining entitlement to improved pension: Donations from public or private relief or welfare organizations; VA pension benefits; expenses of the veteran's last illness, burial and just debt; reimbursements of any kind for any casualty loss; profit realized from the disposition of real or personal property other than in the course of a business; amounts in joint accounts in banks and similar institutions acquired by reason of the death of the other joint owner; amounts paid for unreimbursed medical expenses to the extent that such amounts exceed 5 percent of the maximum annual rate of pension; expenses paid by a veteran or a surviving spouse pursuing a course of education or vocational rehabilitation or training; and in the case of a child, any current work income with certain limitations. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.272. However, the withholding of a portion of a Social Security benefits payment such as in this case is not included among the exceptions from countable income for improved pension set forth in 38 U.S.C.A. § 1503 and 38 C.F.R. § 3.272. In fact, under VA guidelines, VA Manual M21-1, Part IV, paragraph 16.02(g)(2), if there is a garnishment of a payee's Social Security or involuntary withholding from a payee's Social Security check due to legal action initiated by a third party the entire benefit is countable as income for VA purposes even though it may never be received by the beneficiary. In view of the above discussion, the Board concludes that the amount withheld from the veteran's Social Security benefits payment pursuant to a court order to pay for back child support is properly included as countable income for purposes of improved disability pension benefits. 38 U.S.C.A. §§ 1503, 1521; 38 C.F.R. §§ 3.23, 3.271, 3.272. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER The amount withheld from the veteran's Social Security benefits to pay for child support in arrears is properly included as countable income for purposes of improved disability pension benefits. The appeal is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals