BVA9508325 DOCKET NO. 93-14 013 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the veteran's improved disability pension benefits were properly adjusted, based on a change in income, effective December 1, 1991. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from December 1945 to May 1947. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 determination of the St. Petersburg, Florida Regional Office (RO), which retroactively reduced the veteran's pension benefits, effective December 1, 1991. As a result of such action, an overpayment of $24 was created. In this regard, the accredited representative has raised the issue of entitlement to waiver of recovery of that overpayment . However, this issue has not been developed for appellate review, is not inextricably intertwined with the issue on appeal and, accordingly, is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially contend that the retroactive adjustment of his improved disability pension award, effective December 1, 1991, creating an overpayment in the calculated amount of $24, was due to the RO's failure to promptly calculate his cost-of-living adjustment of monthly Social Security benefits. In this regard, the veteran maintains that he advised the RO, in a timely fashion, of all increases in his monthly Social Security benefits. Therefore, he argues that his pension account should not be charged with an overpayment. 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 establishes that the reduction of the veteran's improved disability pension benefits for the annualization period beginning December 1, 1991, was proper. FINDINGS OF FACT 1. Pursuant to award action of November 1991, the veteran was paid monthly pension benefits at the rate of $440, effective December 1, 1991, based on monthly Social Security benefits of $176. 2. In an Eligibility Verification Report (EVR) received in November 1992, the veteran reported that he had been in receipt of monthly Social Security benefits of $177.80 during the annualization period September 1, 1991 to August 31, 1992. 3. As a result of the above information, action was taken by the RO on December 10, 1992, to amend the veteran's pension award, retroactively from December 1, 1991, to pay benefits at the monthly rate of $438, on the basis of monthly Social Security benefits of $177.80. This action resulted in an overpayment in the calculated amount of $24. CONCLUSION OF LAW The reduction of the veteran's improved disability pension benefits, effective December 1, 1991, was proper. 38 U.S.C.A. §§ 1521, 5107 (West 1991); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we have determined that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. In this regard, the Board acknowledges the accredited representative's request that the case be remanded to the RO in order to afford the veteran an audit of the assessed overpayment, in the calculated amount of $24. The Board believes that an adequate explanation of the overpayment is provided below. More importantly, the issue of waiver of recovery of said overpayment, which has not been developed for appellate review, is not inextricably intertwined with the issue on appeal. The Board notes that the basic facts in this case are not in dispute and may be briefly summarized. The record reveals that the veteran has been in receipt of improved disability pension benefits for many years. By a VA letter in November 1991, he was advised that he would be paid monthly pension benefits at the rate of $440, effective December 1, 1991. The rate was calculated on the basis of gross monthly Social Security benefits of $176. It is unclear whether any attempt was made by the RO to verify such amount, or whether the RO simply miscalculated what the veteran's Social Security cost of living increase would be. In a November 1992 EVR, the veteran reported that for the annualization period beginning September 1, 1991, he was in receipt of gross monthly Social Security benefits of $177.80. As a result of this information, in December 1992, the RO retroactively reduced the veteran's pension award effective December 1, 1991. This action resulted in an overpayment of improved pension benefits, in the calculated amount of $24. Pursuant thereto, a Report of Contact dated February 8, 1993, reflects that an employee of the Social Security Administration was contacted by telephone in order to verify the veteran's gross monthly Social Security benefits for the annualization period beginning December 1, 1991. On that occasion, it was reported that the veteran began receiving monthly Social Security benefits of $177.80 in December 1991. In general, payments of any kind from any source shall be counted as income in the year in which received unless specifically excluded by the applicable Federal Regulation. 38 C.F.R. §§ 3.271, 3.272. Further, 38 C.F.R. § 3.271(a) provides that all payments "shall be counted as income during the 12-month annualization in which received...." Beginning December 1, 1991, the veteran's countable annualized income consisted of Social Security benefits in the amount of $2,133. The Board observes that the governing law and regulations specify that a veteran with no dependents, as in this case, was subject to the maximum annual income limitation of $7,397, effective December 1, 1991. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(a). The monthly rate of pension payable is computed by reducing the beneficiary's applicable maximum annual pension rate by the beneficiary's new rate of the countable income, then dividing the remainder by 12. As the veteran was receiving annual Social Security benefits of $2,133 during the annualization period beginning December 1,1991, he was entitled to monthly pension benefits of $438 ($5,264 divided by 12 = $438 a month). As previously pointed out, the veteran was initially paid monthly pension benefits of $440 during this period on the basis of monthly Social Security benefits of $176. Consequently, following receipt of the veteran's EVR in November 1991, which indicated that he was receipt of monthly Social Security benefits of $177.80 during the annualization period beginning December 1, 1991, it was necessary to retroactively reduce his pension benefits effective from December 1, 1991. The Board acknowledges the veteran's contention that the retroactive adjustment was necessitated by the RO's neglect to correctly calculate his Social Security cost-of-living increase. Such argument is more applicable to his request for waiver of recovery of the overpayment of pension benefit. In light of the governing law and regulations, the Board determines that the reduction of the veteran's pension benefits effective December 1, 1991, creating an overpayment in the calculated amount of $24, was proper based on his receipt of annual Social Security benefits of $2,133. The Board has carefully reviewed the entire record in this case and finds that the evidence is not so evenly balanced that there is doubt as to any material issue. The preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. N. R. ROBIN 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.