BVA9501883 DOCKET NO. 93-09 194 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether termination of the veteran's improved disability pension award, effective December 1, 1989, was proper. ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran served on active duty from October 1965 to July 1967. The veteran acts as his own representative in this matter. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from determinations of February 1991 and February 1992, by the Los Angeles, California Regional Office (RO). The February 1991 award action terminated the veteran's improved disability pension award, effective October 1, 1989, due to excessive income. Subsequently, by letter dated in February 1992, the veteran was informed that his pension award had been reinstated from October 1, 1989 to November 30, 1989, with compensation awarded effective from December 1, 1989, based on his service-connected disabilities. The appeal was received at the Board in April 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his improved disability pension benefits should not have been terminated because he was informed by someone at the Department of Veterans Affairs (VA) that, although he was in receipt of social security benefits, he would continue to receive the original amount of his pension award. 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 veteran's improved pension award was properly terminated effective December 1, 1989, on the basis of excessive income. FINDINGS OF FACT 1. The veteran was awarded improved disability pension benefits in July 1990, effective October 1, 1989, based on zero countable income, based upon his report of no income from any source other than Supplemental Security Income (SSI). 2. In an Eligibility Verification Report signed in November 1990, the veteran reported that he was in receipt of monthly social security benefits of $574. 3. In February 1991, the veteran reported that he had received his first payment of social security benefits in November 1989, and that the gross monthly amount of his social security benefits was $604.90. He also reported receiving retroactive social security benefits in the amount of $5,732.40 in December 1989. 4. The veteran's award of disability pension was retroactively terminated effective October 1, 1989, on the basis that his countable annual income from social security benefits was excessive for receipt of pension benefits; subsequently, the veteran's award was amended to reinstate pension benefits from October 1, 1989 to November 30, 1989, based upon his receipt of social security benefits beginning in November 1989. 5. The maximum annual rate of improved pension for a veteran with no dependents, as in this case, was $6,767 effective December 1, 1989. Effective December 1, 1990, the maximum rate was $7,133. 6. The veteran's annual income from social security benefits exceeded the maximum rate of improved pension for the period beginning December 1, 1989. CONCLUSION OF LAW The termination of the veteran's improved pension award effective December 1, 1989, due to excessive countable annual income, was proper. 38 U.S.C.A. § 1521 (West 1991); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3,273, 3.660 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the basic facts in this case are not in dispute. In September 1989, the veteran filed his initial claim for disability pension benefits, reporting no income from any source other than SSI. In July 1990, the veteran was awarded disability pension benefits effective October 1, 1989, based on zero countable income. In an Eligibility Verification Report (VA Form 21-0515) signed by the veteran in November 1990, he reported that he was in receipt of monthly social security benefits of $574. Received in February 1991 was a statement in support of claim (VA Form 21-4138), wherein the veteran reported that he received his first payment of social security benefits in November 1989, and that the gross monthly amount of his social security benefit was $604.90. He also reported that he received a check for retroactive social security benefits in December 1989, in the amount of $5,732.40. Based upon the above information, in February 1991, the RO terminated the veteran's disability pension award effective October 1, 1989, due to excessive countable annual income from social security benefits. Subsequently, by letter dated in February 1992, the veteran was informed that his pension award had been reinstated from October 1, 1989 through November 30, 1989. This action was based upon his report that he first received social security benefits in November 1989. See 38 C.F.R. § 3.660(a)(2). Effective December 1, 1989, his pension award was terminated, based on excessive income due to his annualized rate of social security benefits, and he was awarded VA compensation instead, based on his service-connected disabilities. The Board observes that the maximum annual rate of improved pension for a veteran with no dependents, as in this case, was $6,767, effective December 1, 1989, and $7,133, effective December 1, 1990. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(a). Basic entitlement to VA disability pension benefits exists if, among other factors, the veteran meets the applicable net worth requirements and has annual income not in excess of the applicable maximum annual pension rate. 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.3, 3.23. Pursuant to 38 C.F.R. § 3.23(b), the applicable maximum annual rate of improved pension is to be reduced by the amount of the veteran's countable income. The Board has carefully considered the evidence of record in this case, in light of the veteran's contentions and the applicable law and regulations. His primary contention is that although he is in receipt of monthly social security benefits, his disability pension benefits should not have been terminated because someone at the VA told him that he would receive the original amount of the award. However, as already cited above, the controlling law and regulations provide that entitlement to pension benefits requires that a veteran has annual income not in excess of the applicable maximum annual pension rate. Further, 38 C.F.R. § 3.271(a) provides that all payments "shall be counted as income during the 12-month annualization period in which received...." Where discontinuance of a running award of improved pension is required because of an increase in income, as in this case, the discontinuance shall be made effective the end of the month in which the increase occurred. 38 C.F.R. § 3.660(a)(2). We note that beginning in November 1989, the veteran's countable income consisted of annual Social Security benefits of at least $6,888, based upon his report of $574 in social security benefits monthly. The actual amount of social security benefits probably was even higher, in view of his later report that his gross monthly benefit was $604.90. Moreover, in December 1989 he received retroactive social security benefits of $5,732. The statutory limitation was $6,767 effective December 1, 1989. Hence, the veteran's countable annual income was clearly excessive for the receipt of pension benefits for the period beginning December 1, 1989. Consequently, the Board finds that the termination of the veteran's disability pension award effective December 1, 1989, was correct and in accordance with the governing legal criteria. 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273, 3.660. The Board notes that the veteran has made no allegation that his social security benefits should not be counted and, under 38 C.F.R. §§ 3.271, 3.272, social security income clearly is countable for purposes of the improved pension program. Moreover, the veteran has not claimed that he is entitled to any of the exclusions from income under 38 C.F.R. § 3.272. The Board notes, for example, that the veteran has reported no unreimbursed medical expenses for the period beginning October 1, 1989. See 38 C.F.R. § 3.272(g). His main contention is that " a person in the VA office," who allegedly knew of his social security benefits, reportedly advised him that he was entitled to the pension benefits awarded to him. The veteran has provided no further information about this reported communication which, in any event, would not permit the Board to disregard the controlling law and regulations cited above pertaining to the counting of income and adjustment of pension awards based on income. Even if given, such erroneous advice does not provide entitlement to benefits where the law clearly precludes them. See McTighe v. Brown, 7 Vet.App. 29 (1994). Where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet.App. 426 (1994). On this record, the law is dispositive. Therefore, the Board has no alternative but to deny the veteran's appeal as he does not meet the legal criteria for entitlement to improved disability pension benefits during the period beginning December 1, 1989. ORDER The appeal is denied. D. C. SPICKLER 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. 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.