Citation Nr: 21013423 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-22 648 DATE: March 9, 2021 ORDER Entitlement to non-service-connected pension benefits from February 1, 2016 is denied. FINDING OF FACT The Veteran has failed to meet his evidentiary burden of providing requested financial information for purposes of establishing entitlement to non-service-connected pension benefits for the period from February 1, 2016. CONCLUSION OF LAW The criteria for an award of non-service-connected pension benefits for the period from February 1, 2016 have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272, 3.277. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1973 to July 1975. His decorations include the National Defense Service Medal, the Sharpshooter (M-16) Badge, and the First-Class Grenade Qualification Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2012, November 2013, and March 2018, the Board remanded the Veteran’s claim to the agency of original jurisdiction (AOJ) for additional development. On each occasion, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In January 2013, the Veteran testified at a Board video-conference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. In October 2017, the Board wrote the Veteran to inform him that the Veterans Law Judge who conducted the hearing in January 2013 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing. He was notified that if he did not respond within 30 days, the Board would assume that he did not wish to have another hearing. No response to the October 2017 VA correspondence was received. In September 2020, the Board denied entitlement to non-service-connected pension benefits for the period on appeal prior to February 1, 2016 because the Veteran was not 65 years of age or older during that period and the evidence did not establish that he was otherwise permanently and totally disabled due to non-service-connected disabilities. The matter of his entitlement to pension from February 1, 2016 was remanded for additional development. After taking further action on that matter, the AOJ confirmed and continued the prior denial and returned the case to the Board. See October 2020 supplemental statement of the case. Entitlement to non-service-connected pension from February 1, 2016 is denied. The Veteran seeks to establish entitlement to non-service-connected pension benefits from February 1, 2016. Pursuant to 38 U.S.C. § 1521(a), non-service-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of his own willful misconduct. A veteran is entitled to pension only if his income is not in excess of the applicable maximum annual pension rate (MAPR), as specified at 38 C.F.R. § 3.23 and changed periodically, as reported in the Federal Register. See 38 U.S.C. § 1521. The maximum rates for a veteran’s pension are reduced dollar for dollar by the amount of the countable income of a veteran, his spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). The September 2020 Board decision noted that the Veteran met the qualifying service criteria as defined in 38 C.F.R. § 3.3(a)(3)(i) based on more than 90 days of active service during the Vietnam war period, which is defined as running from February 28, 1961 to May 7, 1975. See also 38 U.S.C. § 101; 38 C.F.R. § 3.2. The September 2020 Board decision also determined that the Veteran was considered permanently and totally disabled for VA non-service-connected benefits purposes because he was deemed disabled as of February 1, 2016 by the Social Security Administration. However, entitlement to non-service-connected pension benefits exists only if the Veteran’s countable income is not in excess of the MAPR specified by law. Pursuant to the September 2020 remand, the AOJ sent the Veteran a notice letter in September 2020 requesting that he provide his income and net worth information, as well as information pertaining to any unreimbursed medical expenses he may have incurred during period from February 1, 2016. As a condition of granting or continuing pension, 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. 38 C.F.R. § 3.277(a). The Board notes that, to date, the necessary information with respect to the Veteran’s income, net worth and unreimbursed medical expenses for the period from February 1, 2016 has not been received. His failure to provide the requested information makes it impossible for VA to determine his eligibility. The Veteran has a duty to aid VA in developing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street; if a claimant wishes help in developing her/his claim, s/he cannot passively wait for it in those circumstances where s/he may or should have information that is essential in obtaining putative evidence). Because the Veteran did not respond to VA’s request for additional information, the Board is constrained to find that he has not met his evidentiary burden in connection with his claim for non-service-connected pension benefits, as he has not provided the requisite financial information. Under the circumstances, the Board must find that the claim for non-service-connected pension benefits for the period from February 1, 2016 is without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.