Citation Nr: 21062682 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 09-42 467 DATE: October 8, 2021 ORDER Entitlement to the payment of nonservice-connected (NSC) pension benefits as of May 25, 2019, is denied. FINDINGS OF FACT 1. The Veteran failed to provide requested information as to his income and unreimbursed medical expenses, and has not otherwise made an election between receipt of compensation or pension benefits. 2. The VA disability compensation benefits awarded for the Veteran's combined compensation ratings is greater than the maximum monthly amount that can be awarded for nonservice-connected pension. CONCLUSION OF LAW The criteria for entitlement to payment of nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 1513, 5304; 38 C.F.R. §§ 3.3, 3.4, 3.23, 3.151, 3.700, 3.701. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1971 to December 1973. This appeal before the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to NSC pension benefits. The Board remanded the Veteran's claims for NSC pension benefits to the Agency of Original Jurisdiction (AOJ) in August 2015, March 2017, February 2019 and February 2021, for further evidentiary development. In the February 2021 decision/remand, the Board specifically denied entitlement to NSC pension benefits prior to May 25, 2019, and remanded the matter of entitlement to NSC pension benefits as of May 25, 2019, noting that the Veteran had turned 65 years of age as of that date. The Board disposed of multiple other claims on appeal in February 2019 and February 2021, and the AOJ granted service connection for bilateral pes planus following the Board's remand of bilateral foot disability claims in February 2021, thereby resolving the Veteran's appeal as to those matters. Entitlement to the payment of NSC pension benefits as of May 25, 2019 In February 2021, the Board specifically determined that the Veteran met the initial threshold requirements for entitlement to NSC pension benefits, given his service for over 90 days during a period of war, and the fact that he had turned 65 years old on May 25, 2019. The Board noted that the matter of the Veteran's entitlement to payment of NSC pension benefits turned on whether he met the net worth requirements under 38 C.F.R. § 3.274, and whether his income exceeded the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23, as of May 25, 2019. Thus, the Board remanded the claim in order to obtain evidence as to the Veteran's income and unreimbursed medical expenses. Following the Board's remand, in a February 2021 letter, the AOJ requested that the Veteran provide evidence identifying his income and any unreimbursed medical expenses. The Veteran did not respond to this request. In continuing to deny the Veteran's claim for entitlement to payment of NSC pension benefits in a June 2021 supplemental statement of the case, the AOJ specifically noted that the Veteran's disability compensation benefits were greater than the maximum annual pension rated for a veteran with one dependent spouse, and that, without an election from the Veteran or information to the contrary (such as reports of income and unreimbursed medical expenses), his disability compensation benefits is considered to be the greater benefit. Pursuant to 38 U.S.C. § 5304, and 38 C.F.R. §§ 3.700 and 3.701, VA is prohibited from paying both compensation and pension to one claimant. Although veterans who are eligible for both benefits are presumed to want the larger of the two, section 3.701(a) allows for the claimant to elect to receive either benefit, "regardless of whether it is the greater or lesser benefit." The Veteran's combined disability rating was 70 percent as of May 25, 2019, and was 90 percent as of December 3, 2020. His current combined rating is 100 percent as of March 9, 2021. Such ratings result in monthly service-connected compensation rates of $1,522.71 from May 25, 2019; $1,547.17 from December 1, 2019; $1,566.71 from December 1, 2020; $2044.18 from December 3, 2020; and $3,3211.85 from March 9, 2021. The maximum monthly pension rate for a veteran with one dependent was $1,477, as of May 25, 2019; $1500.67 as of December 1, 2019; and $1520.25 from December 1, 2020. Although the Veteran is certainly entitled to elect to receive pension benefits rather than VA compensation benefits at the respective 70 percent, 90 percent, and 100 percent rates, as detailed above, to do so would not be to his collective benefit because the amount of compensation awarded clearly exceeds the rate of pension payable for a veteran with one dependent spouse. Also, electing the lesser pension rate at this point would result in an overpayment of benefits and creation of a debt the Veteran would have to repay, as he has been paid at the compensation rates for the entirety of the pertinent appeal period. The Board acknowledges that the record is incomplete as to the Veteran's income for the period on appeal. The Board reiterates, however, that the Veteran did not respond to VA's February 2021 correspondence requesting this information. Thus, absent the Veteran's provision of the requested information as to his income and unreimbursed medical expenses, VA cannot determine whether his income has been excessive for VA pension purposes. In this regard, the Board notes that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA's duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Further, even if the Veteran were awarded the maximum possible pension rate, his compensation rate for service-connected disability would exceed the maximum possible pension rate. Thus, the Board finds that a remand to seek further to obtain information as to the Veteran's income and unreimbursed medical expenses would only serve to unnecessarily delay final adjudication of this claim. As the Veteran may not receive both VA compensation and pension in accordance with long-established rules governing the payment of VA benefits, he has appropriately been awarded compensation benefits, as this has been the greater benefit. See 38 C.F.R. §§ 3.151, 3.701 (VA will pay the greater benefit of compensation or pension unless the Veteran elects otherwise). Accordingly, where the Veteran has not provided income and expense information as requested, and as there is no evidence indicating his desire to elect the lesser pension payment from May 25, 2019, to the present, his claim for the payment of nonservice-connected pension benefits from May 25, 2019 must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.