Citation Nr: 21021942 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-61 935 DATE: April 14, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The Veteran has failed to meet his evidentiary burden of providing requested information for purposes of establishing his entitlement to nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits 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 from March 1964 to March 1966. His claim comes before the Board of Veterans' Appeals (Board) on appeal of an April 2016 Department of Veterans Affairs (VA) decision. The Board remanded this claim to the Agency of Original Jurisdiction (AOJ) in August 2020. As the Board pointed out in its Remand, the Veteran testified before the undersigned Veterans Law Judge during a July 2019 videoconference hearing. Unfortunately, due to audio malfunctions in the Digital Audio Recording System, personnel could not produce a transcript of the proceeding. In a May 2020 letter, the Board notified the Veteran and his representative of this fact and offered the Veteran an opportunity to appear at another hearing. Neither the Veteran nor his representative has since responded. Instead, in March 2021, the representative resubmitted a copy of the Veteran’s original VA Form 9 indicating that he was appealing the February 2021 supplemental statement of the case, which affirmed the initial denial. Entitlement to nonservice-connected pension benefits The Veteran seeks nonservice-connected pension benefits. He claims that VA did not properly assess his financial and medical records in denying this claim and that his medical conditions and limited financial resources warrant a grant of such benefits. Nonservice-connected pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his own willful misconduct. 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3. Here, the Veteran meets these qualifying service criteria based on his active service of more than 90 days during the Vietnam era, defined as extending from February 28, 1961 to May 7, 1975. 38 U.S.C. §§ 101(29), 1521(j)(1); 38 C.F.R. § 3.2(f). However, there is insufficient evidence of record to determine his entitlement to the benefit being sought. A veteran is entitled to pension only if his income does not exceed 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. 38 U.S.C. § 1521. The maximum annual rates for pension are to be reduced dollar for dollar by the amount of countable income of a veteran, his spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(b), (d). For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid." 38 C.F.R. § 3.272(g)(1)(iii). To be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses for which the veteran received no reimbursement, including from any insurance company. According to hearing notes, the Veteran and his spouse were in receipt of $2,300/month combined income from the Social Security Administration, which exceeds the maximum allowed for pension purposes. However, the Veteran indicated that he had more than $12,000 in medical bills not covered by insurance, which would qualify him for pension benefits. As the Veteran had not yet submitted evidence of such expenses, the Board remanded the case to the AOJ to obtain such evidence. In August 2020, October 2020 and January 2021 letters sent to both the Veteran and his representative, the AOJ requested the Veteran to submit Improved Pension Eligibility Reports and Medical Expense Reports. To date, neither the Veteran nor his representative has submitted the requested information. As noted above, in March 2021, the representative resubmitted a copy of the Veteran’s original VA Form 9 indicating that he was appealing the February 2021 supplemental statement of the case, which affirmed the initial denial. No other documentation has been received August 2020. As a condition of granting pension, VA may require a pension claimant to submit any information, proof and/or evidence necessary to determine that individual’s annual income and the corpus of his estate. 38 C.F.R. § 3.277(a). Here, the Veteran has failed to provide the requested information, making it impossible for the Board to determine his entitlement to pension benefits. A claimant has a duty to aid VA in developing his or her claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (duty to assist is not one-way street). Here, the Veteran indicated that he had evidence crucial to this claim. If he wanted VA to help him in securing such evidence, he should not have passively waited for it. Based on his and his representative’s failure to respond to VA’s multiple notification letters, the Board is constrained to find that the Veteran has failed to meet his evidentiary burden of providing requested information for purposes of establishing his entitlement to nonservice-connected pension benefits. The criteria for entitlement to such benefits are therefore not met. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.