Hairston v. McDonough, Case Number 20-4692, decided April 20, 2023 involves whether the VA can consider a spouse’s income when calculating income for the purposes of a Non-Service Connected Pension. The Court answered yes.
The veteran argued the spouse’s income should not be counted toward the veteran annual income for purposes of a non-service connected pension and focused on the authorizing statute. The veteran argued (1) the Board misunderstood or misapplied § 3.23(b) by including his wife's income in its calculation of his countable income; (2) § 3.23(d)(4), which defines a veteran's annual income, is invalid because it does not comport with its authorizing statute, 38 U.S.C. § 1521, and (3) §§ 3.274 and 3.275, which impose a net worth limit on pension eligibility, superseded § 3.23's pension rate reduction scheme such that both the net worth and income limits cannot be applied to a single veteran.
The Court found “38 U.S.C. § 1521(c) clearly requires that the payable pension rate be reduced by a spouse's income because it is countable as part of a veteran's annual income. Because § 3.23(d)(4) simply makes this clear statutory mandate pellucid, it is a valid regulation and fully applicable to Mr. Hairston's pension claim.” Id. at *7. The Court also found §§ 3.23, 3.274, and 3.275 operate together to implement the pension program Congress established, and the Board didn't err in applying the relevant aspects of those rules here.” Id. at *9.
Decision by Judge Toth and joined in by Judges Pietsch and Meredith.
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