BVA9500312 
DOCKET NO.  93-03 136     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida

THE ISSUE

Whether a Social Security Administration adjustment payment of
retroactive benefits is properly considered as countable income
for purposes of improved pension benefits.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the
United States

ATTORNEY FOR THE BOARD

S. L. Kennedy, Counsel

INTRODUCTION

The veteran served on active duty from January 1945 to January
1946.

This matter came before the Board of Veterans' Appeals (Board) on
appeal from an August 1992 decision of the St. Petersburg,
Florida, Department of Veterans Affairs (VA) Regional Office
(RO).  The notice of disagreement was received in September 1992.
The statement of the case was issued in November 1992.  The
substantive appeal was received in December 1992.

In December 1993, the Board received from the veteran a VA Form
21-4138 (Statement in Support of Claim) with several attached
medical statements which appear to be unrelated to the current
appeal.  Those documents are referred to the RO for appropriate
disposition.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the entire amount of a lump-sum payment
of retroactive benefits from the Social Security Administration
(SSA) should not be considered countable income for purposes of
the payment of VA improved pension benefits.  He asserts that the
lump-sum SSA payment represented retroactive benefits that should
have been paid to him between 1988 and 1991, and that since he
did not file a claim for VA pension benefits until early 1991,
then only the portion of the SSA lump-sum adjustment from that
date onward should be considered as income for VA pension
purposes.  He maintains that if the $1,200 in question is
prorated from January 1988 to July 1992, then only approximately
$371 should be considered countable income for 1992.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
veteran's claim to exclude any portion of the Social Security
Administration adjustment payment of retroactive benefits as
countable income for purposes of improved pension benefits

FINDINGS OF FACT

1.  In an October 1991 rating decision, the veteran was awarded
improved pension benefits effective from February 11, 1991.  This
award, of which he was notified by VA letter dated in November
1991, was based on his SSA benefit of $262 per month, and $282
per month in annuity/retirement benefits, and his spouse's SSA
benefit of $282 per month.  Several subsequent adjustments were
made with respect to the veteran's countable income and
corresponding changes were made to the amount of pension paid to
the veteran of which he was notified by VA letters dated in
December 1991, and in April 1992.

2.  In August 1992, the veteran submitted a VA Form 21-4138
(Statement in Support of Claim), in which he referred to an
attached SSA letter and in which he requested an adjustment of
his benefits.  The attached SSA letter indicated that shortly
after August 2, 1992, the veteran would receive a payment of
$1,486 which represented retroactive benefits that should have
been paid to him as well as his regular monthly payment of $286.
A subsequently received SSA letter indicated that the retroactive
payment represented benefits that should have been paid to the
veteran between 1988 and 1991.

3.  The veteran's award of improved pension benefits was adjusted
to include the additional $1,200 received from the SSA as
countable income effective from September 1, 1992.

CONCLUSION OF LAW

The entire amount of the Social Security Administration
adjustment payment of retroactive benefits was properly
considered as countable income for purposes of improved pension
benefits.  38 U.S.C.A. §§ 1503, 1521, 5107 (West 1991); 38 C.F.R.
§§ 3.23, 3.271, 3.272 (1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

At the outset, the Board finds that the appellant's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).
That is, the Board finds that he has presented a claim which is
plausible.  The Board is also satisfied that all relevant facts
have been properly developed and that the VA has fulfilled its
duty to assist the appellant as mandated by 38 U.S.C.A. § 5107
(West 1991) and 38 C.F.R. § 3.103(a) (1993).

In an October 1991 rating decision, the veteran was awarded
improved pension benefits effective from February 11, 1991.  This
award, of which he was notified by VA letter dated in November
1991, was based on his SSA benefit of $262 per month, and $282
per month in annuity/retirement benefits, and his spouse's SSA
benefit of $282 per month.  Several subsequent adjustments were
made with respect to the veteran's countable income and
corresponding changes were made to the amount of pension paid to
the veteran of which he was notified by VA letters dated in
December 1991, and in April 1992.  The record reflects that the
veteran was paid various rates of improved pension from March 1,
1991.

In August 1992, the RO received information from the veteran
which indicated that he was to receive a lump-sum payment from
SSA which represented a retroactive award of benefits that should
have been, but had not been, paid to him.  The veteran submitted
a VA Form 21-4138 (Statement in Support of Claim), with an
attached SSA letter which indicated that shortly after August 2,
1992, the veteran would receive a payment of $1,486 which
included the retroactive benefits as well as his regular monthly
payment of $286.  A subsequently received SSA letter indicated
that the retroactive payment represented benefits that should
have been paid to the veteran between 1988 and 1991.  Based on
this information, the veteran's award of improved pension
benefits was adjusted to include the additional $1,200 ($1,486
minus his monthly SSA payment of $286 which had already been
counted as income for the period in question) received from the
SSA as countable income, effective from September 1, 1992.

Under the applicable governing legal criteria, the maximum rate
of improved pension is reduced by the amount of the countable
income of the veteran.  38 U.S.C.A. § 1521 (West 1991); 38 C.F.R.
§ 3.23 (1993).  In determining income for purposes of entitlement
to pension under the improved pension program, payments of any
kind from any source are counted as income during the 12-month
annualization period in which received unless specifically
excluded under 38 C.F.R. § 3.272 (1993).  38 U.S.C.A. § 1503
(West 1991); 38 C.F.R. § 3.271 (1993).

In this case, the veteran received the income in question from
the SSA.  Although a number of exclusions from countable income
are set forth under 38 C.F.R. § 3.272, such as welfare payments,
the value of maintenance furnished by a relative, friend or
charitable organization, and the profit from the sale of property
under certain circumstances, the type of benefit received by the
veteran from SSA is not listed among the exclusions.  Therefore,
it is apparent that the sum of $1,200 was properly included as
countable income for purposes of the veteran's improved pension
benefits.

In this particular case, the veteran asserts that the entire
amount of a lump-sum payment of retroactive benefits from the
Social Security Administration (SSA) should not be considered
countable income for purposes of the payment of VA improved
pension benefits.  He asserts that the lump-sum SSA payment
represented retroactive benefits that should have been paid to
him between 1988 and 1991, and that since he did not file a claim
for VA pension benefits until early 1991, then only the portion
of the SSA lump-sum adjustment from that date onward should be
considered as income for VA pension purposes.  He maintains that
if the $1,200 in question is prorated from January 1988 to July
1992, then only approximately $371 should be included in his
countable income for 1992.
However, when the facts of this case are considered in light of
the governing legal criteria, the Board is unable to concur with
the veteran's contentions.  The record clearly reflects that the
$1,200 SSA payment represented benefits which the veteran was
entitled to for periods prior to 1992.  The law provides that
income is counted during the 12-month annualization period when
it is "received," not when the veteran was entitled to it.  While
the SSA payment was for benefits due for previous months, the
date of the actual receipt of the payment is the only factor to
be considered when determining countable income for VA purposes.
Thus, the RO properly included the $1,200 lump-sum SSA payment as
countable income, and the veteran's improved pension benefits
were properly reduced for the period in question.  The Board has
carefully reviewed the entire record in this case, but finds no
doubt as to any material issue.  38 U.S.C.A. § 5107(b) (West
1991).

ORDER

The appeal is denied.

          EUGENE A. O'NEILL
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.