Citation Nr: 1314014 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 10-37 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected pension benefits based upon the Veteran's net worth. ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from January 1993 to January 1997 and from April 2009 to December 2009. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in December 2012. This matter was originally on appeal from a March 2010 decision of the Pension Management Center of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The Veteran has not complied with VA's request for additional information necessary to adjudicate the Veteran's claim for nonservice-connected pension benefits. Evidence currently of record shows a net worth in excess of that legally allowed for payment of pension benefits. CONCLUSION OF LAW Payment of nonservice-connected pension benefits was properly denied due to excessive net worth. 38 U.S.C.A. §§ 1503, 1521, 1522 (West 2002); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.274, 3.275, 3.277 3.250 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter Pursuant to the Board's December 2012 Remand, the RO sent a letter to the Veteran requesting additional information clarifying his reporting of $155,000 in "all other property" on his application as well as requesting that he provide information regarding whether he had an mortgages or was receiving sick benefits, worker's compensation, unemployment compensation, or Social Security Supplemental Security Income (SSI) benefits. There was no response to the letter. After three failed attempts to contact the Veteran by phone in January 2013, the RO readjudicated the Veteran's claim and issued a Supplemental Statement of the Case. It was sent to the Veteran and there has been no response. Based on the foregoing actions, the Board finds that there has been compliance with the Board's December 2012 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has met all statutory and regulatory notice and duty to assist provisions. A January 2010 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) Nonservice-connected Pension Benefits Pension benefits payable are subject to limitations on annual income and net worth. 38 U.S.C.A. §§ 1521, 1522; 38 C.F.R. §§ 3.3(a)(3), 3.274 (2012). In this case, in his application for VA benefits in December 2009, the Veteran reported a net worth of $157,000 including $2,000 in cash accounts and $155,000 in "all other property." Based on his initial report, payment of pension benefits was denied. In his Notice of Disagreement received in March 2010, the Veteran indicated that he was receiving temporary unemployment benefits which were scheduled to terminate in June 2010 and that his property assets had no bearing as they could not be liquidated in the near future to support himself. In December 2012, the Board remanded the case so that the Veteran could clarify the nature of his property that he valued at $155,000 and any debts associated with such property to include whether that property includes his dwelling; describe the circumstances to why he believed that the property could not be converted into cash; and clarify whether he was receiving unemployment benefits or SSI benefits from Social Security Administration. The Veteran was advised that failure to timely respond could result in a denial of his claim. The provisions of 38 C.F.R. § 3.271 provide that in computing income, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Pursuant to 38 C.F.R. §§ 3.274, 3.275, the corpus of estate and net worth of a veteran is considered in a determination of whether or not pension benefits are warranted. In determining whether some part of the claimant's estate should be consumed for his or her maintenance, consideration will be given to the amount of the claimant's income, together with the following factors: whether the property can be readily converted into cash at no substantial sacrifice; life expectancy; number of dependents who meet the requirements of 38 C.F.R. § 3.250(b)(2); potential rate of depletion, including unusual medical expenses under the principles outlined in 38 C.F.R. § 3.272(g) for the claimant and his or her dependents. 38 C.F.R. § 3.274 provides that a veteran's net worth is related to his or her pension entitlement. Specifically, pension shall be denied or discontinued when the corpus of the estate of the veteran, and of the veteran's spouse, are such that under all the circumstances, including consideration of the annual income of the veteran, the veteran's spouse, and the veteran's children, it is reasonable that some part of the corpus of such estates be consumed for the veteran's maintenance. 38 C.F.R. § 3.275 provides the criteria for evaluating net worth. The following rules are for application in determining the corpus of estate or net worth of a veteran. The terms corpus of estate and net worth mean the market value, less mortgages or other encumbrances, of all real and personal property owned by the claimant, except the claimant's dwelling (single family unit), including a reasonable lot area, and personal effects suitable to and consistent with the claimant's reasonable mode of life. In determining whether some part of the claimant's estate should be consumed for the claimant's maintenance, consideration will be given to the amount of the claimant's income together with the following: Whether the property can be readily converted into cash at no substantial sacrifice; life expectancy; number of dependents who meet the definition of member of the family (the definition contained in 38 C.F.R. § 3.250(b)(2) is applicable to the improved pension program); potential rate of depletion, including unusual medical expenses under the principles outlined in 38 C.F.R. § 3.272(g) for the claimant and the claimant's dependents. The provisions of 38 C.F.R. § 3.277 provide certain eligibility reporting requirements. There must be evidence of entitlement. As a condition of granting or continuing pension, the VA may require from any person who is an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person, and of any spouse or child for whom the person is receiving or is to receive increased pension (such child is hereinafter in this section referred to as a dependent child), and, in the case of a child applying for or in receipt of pension in his or her own behalf (hereinafter in this section referred to as a surviving child), of any person with whom such child is residing who is legally responsible for such child's support. There is an obligation to report changes in factors affecting entitlement. Any individual who has applied for or receives pension must promptly notify the Secretary in writing of any change affecting entitlement in any of the following: (1) Income; (2) Net worth or corpus of estate; (3) Marital status; (4) Nursing home patient status; (5) School enrollment status of a child 18 years of age or older; or (6) Any other factor that affects entitlement to benefits under the provisions of this Part. With regard to 38 C.F.R. § 3.277, as noted, as a condition of granting or continuing pension, the VA may require from any person who is an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person. VA requires that this information be listed in an application for VA pension benefits. In this case, the Veteran's net worth cannot be recalculated because the veteran has failed to inform VA as to the nature of the property valued at $155,000 and whether he is receiving unemployment benefits. To date, the veteran still has not provided any of the requested information despite the clear requests by VA for him to do so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). As such, the Board finds the evidence of record does not establish that the Veteran meets the specific income and net worth requirements for payment of pension benefits because there is insufficient information of record to decide the claim. Therefore, since the evidence of record does not include specific information to allow VA to determine whether he meets the specific income and net worth requirements under 38 U.S.C.A. § 1541, the claim for nonservice-connected pension benefits is not warranted. ORDER Entitlement to payment of nonservice-connected pension benefits is denied based on the Veteran's net worth. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs