Citation Nr: 1800376 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 15-32 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran had active naval service from February 1942 to October 1945. He died in August 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 administrative decision issued by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. The claim was subsequently remanded by the Board in July 2017 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Also in July 2017, the Board remanded a claim for entitlement to an earlier effective date for the grant of special monthly compensation based on the surviving spouse's need for aid and attendance. At that time, the RO was instructed to provide the requisite Statement of the Case (SOC) and to return the matter to the Board only if the appellant perfected the appeal. As the appellant has taken no such action, this matter is not currently before the Board for appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran served for more than 90 days during a period of war. 2. The Veteran's death has not been service-connected. 3. The appellant has collected unknown income from a trust account during the rating period on appeal. CONCLUSION OF LAW The criteria for nonservice-connected death pension have not been met. 38 U.S.C. § 101, 1521, 1541 (2012); 38 C.F.R. § 3.3, 3.23 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is currently seeking entitlement to nonservice-connected death pension benefits. Death pension is available to the surviving spouse of a veteran because of his or her non-service connected death, as long as the veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C. §§ 101, 1541 (2012); 38 C.F.R. §§ 3.23, 3.3(b)(4) (2017). To qualify for death pension benefits, the surviving spouse must meet the net worth requirements of 38 C.F.R. § 3.274 and have an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101(8), 1521(j), 1541(a) (2012); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5) (2017). In computing income, 38 C.F.R. § 3.271 provides that 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. Such exclusions include welfare benefits; maintenance benefits furnished by a relative, friend, or a charitable organization; VA pension benefits; and certain medical expenses. 38 C.F.R. § 3.272 (2017). Notably, inheritance, gifts, and trust income do not qualify as excludable income under 38 C.F.R. § 3.272. Here, the Veteran served for more than 90 days during a period of war, and his death has not been service-connected. See 38 U.S.C. §§ 1521(j) (2012). Thus, death pension benefits may be available to the appellant upon assessment of her income against certain net worth requirements. In this regard, the appellant's initial application for benefits included detailed information regarding her assets, to include funds received from a Special Needs Trust established by her daughter. Said application indicated that the appellant's daughter deposited funds into the trust account for the appellant to withdraw as needed. See lay statement dated May 2015. As such, the Board remanded the claim in July 2017 to allow for further information regarding the trust account to be obtained, to include the recipient of the trust's funds and their designated use. Said information was requested from the appellant later that month. However, the appellant responded with only a copy of the trust's current balance and evidence previously of record. Thus, the appellant failed to identify the recipient of the trust's funds or how those funds were used, as requested. Although VA has a duty to assist appellants in substantiating claims for benefits, said duty is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If an appellant wishes help, she cannot passively wait for it in circumstances where she may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Here, the requested information relates directly to the appellant's qualification for benefits and without it, no determination can be made. Thus, the Board finds that VA has satisfied its duty to assist in this case, as the appellant has repeatedly been notified of the information needed before a determination could be issued in this case. To date, the appellant has declined to provide such information. Accordingly, the Board is precluded from making a determination at this time, as the claims file does not contain sufficient information to ascertain whether the appellant satisfies certain income restrictions per VA regulations. As such, the Board cannot find that the appellant qualifies for nonservice-connected pension at this time, and the claim is hereby denied. ORDER Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs