Citation Nr: 0003207 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-20 611A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether termination of nonservice-connected pension benefits effective February 1, 1994, was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from January 1943 to January 1946. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a June 1994 decision of the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (VARO). FINDINGS OF FACT 1. The appellant was awarded nonservice-connected benefits effective from April 1982. 2. A signed Improved Pension Eligibility Verification Report dated August 1993 reflects that the appellant had and expected no income between August 1992 and July 1994, including Social Security income. 3. In April 1994, information was received by the VA showing that the appellant was entitled to monthly Social Security income of $895.00 (annual income of $10,740) effective May 1993, exceeds the statutory income limit for pension recipients. 4. Letter dated April 5, 1994, notified the appellant that VARO proposed to terminate his pension benefits effective December 1, 1993, because the appellant's income exceeded the statutory income limit for pension recipients. The appellant was given 60 days to submit additional evidence showing that this termination was improper and no response was received. 5. Letter dated June 27, 1994 notified the appellant, that VARO terminated his pension benefits effective December 1, 1993. 6. A signed Improved Pension Eligibility Verification Report dated July 1994 reflects that the appellant had or expected Social Security income of $895.40 a month. 7. VARO was informed in January 1995 by the Social Security Administration that the appellant received his first Social Security check in February 1994 for $895 along with a retroactive payment of $6,927 for the period of May 1993 though January 1994. 8. Letter dated February 1995 notified the appellant that pension was terminated effective February 1, 1994, because Social Security income as of that date exceeded he statutory income limit. CONCLUSION OF LAW Termination of nonservice-connected pension benefits effective February 1, 1994, was proper. 38 U.S.C.A. § 5107, 5312 (West 1991 & Supp. 1999); 38 C.F.R. § 3.23 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant was awarded nonservice-connected benefits effective from April 1982. A signed Improved Pension Eligibility Verification Report dated August 1993 reflects that the appellant had and expected no income between August 1992 and July 1994, including Social Security income. In April 1994, information was received by the VA showing that the appellant was entitled to monthly Social Security income of $895.00 (annual income of $10, 740.00), effective May 1993, that exceeded the statutory income limit for pension recipients. The appellant was notified by letter dated April 5, 1994, that VARO proposed to terminate his pension benefits effective December 1, 1993, because the appellant's annual income exceeded the statutory income limit for pension recipients. The appellant was given 60 days to submit additional evidence showing that this termination was improper (i.e., he was not in receipt of Social Security income). No such evidence was submitted. Letter dated June 27, 1994 notified the appellant, that VARO terminated his pension benefits effective December 1, 1993. Subsequently, a signed Improved Pension Eligibility Verification Report dated July 1994 was received. This report reflects that the appellant had or expected Social Security income of $895.40 a month. VARO was informed in January 1995 by the Social Security Administration that the appellant received his first Social Security check in February 1994 for $895 along with a retroactive payment of $6,927 for the period of May 1993 though January 1994. A letter dated February 1995 notified the appellant that pension was terminated effective February 1, 1994, because Social Security income as of that date exceeded he statutory income limit. ANALYSIS A veteran who is receiving a pension is required to report to the VA any material change or expected change in his income or other circumstance that affects the payment of benefits. 38 C.F.R. § 3.660 (1999). Payments of any kind and from any source are countable income for determining eligibility for VA improved pension benefits, unless specifically excluded by law. 38 U.S.C.A. § 1521(b) (West 1991); 38 C.F.R. § 3.271(a) (1999). Overpayments created by the retroactive discontinuance of pension benefits will be subject to recovery unless waived. 38 C.F.R. § 3.660(a)(3) (1999). The appellant appears to dispute the necessity for termination of pension benefits, arguing that he would be in essence destitute without that monetary benefit. He does not dispute VARO's finding that he was entitled to receive Social Security income from May 1993, or that he received $895 in February 1994 along with a retroactive lump sum payment of $6,927 from Social Security. Initially, the Board notes that entitlement to nonservice- connected pension benefits under 38 U.S.C.A. § 1521 is predicated on (1) a veteran serving during a period of war, (2) permanent and total disability, and (3) income that meet the net worth limitation set forth by law. 38 U.S.C.A. § 1521 (West 1991); 38 C.F.R. § 3.3 (1999). The maximum annual rate is periodically increased from year to year. 38 C.F.R. § 3.23(a). The maximum annual rate of improved pension for a veteran was $7,818 effective in December 1993. Payments of any kind from any source must be counted as income during the 12-month annualization period in which received unless specifically excluded. 38 C.F.R. § 3.271(a) (1999). A review of the record shows that the appellant was paid improved pension benefits from April 1982 through January 1994 on the basis that he had basically no other sources of income. However, the record shows and the appellant does not dispute that he was entitled to Social Security income beginning in May 1993 at a rate of $895 a month. He received his first Social Security payment for $895 in February 1994 along with a retroactive payment of $6,927 for the period of May 1993 through January 1994. The retroactive payment is deemed other income for VA income counting purposes. This income is in excess of the statutory income limitation of $7,818. Thus, VARO properly terminated the appellant's pension effective February 1, 1994. The Board notes that the appellant's annual Social Security income $10,957 exceeds the statutory limit for payment of pension. As such, restoration of pension payments is not warranted. The provision of 38 C.F.R. § 3.102 is not for application in this case as there is not an approximate balance of the positive and negative evidence, which does not satisfactorily prove or disprove the claim, for the reasons discussed above. ORDER Having found that termination of nonservice-connected pension benefits effective February 1, 1994, was proper, the benefit sought on appeal is denied. C.P. RUSSELL Member, Board of Veterans' Appeals