BVA9503192 DOCKET NO. 89-14 177 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the veteran's countable income is excessive for receipt of nonservice-connected pension benefits? (The issue of entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code, is the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from March 1968 to March 1971. This matter came to the Board of Veterans' Appeals (Board) originally on appeal from an October 1988 determination by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA), denying the veteran's claim seeking entitlement to nonservice-connected pension benefits on the basis of excessive countable annual income. In October 1988, he filed a notice of disagreement with that action. In October 1990, the Board remanded the case to the RO for additional development of the record. The RO was unable to comply with the Board's request due to the veteran's failure to cooperate. The case is once again before Board for appellate review. By letter mailed to the veteran in November 1994, he was advised that the tape of his personal hearing before the Board in August 1990 had been misplaced and that he was entitled to an additional hearing. However, the letter was returned because the veteran was no longer residing at the address of record. A Report of Contact dated December 24, 1994, reflects that the RO was contacted by telephone in order to obtain the veteran's current address. At that time, the RO reported that there was no current address on record for the veteran. The Board will therefore proceed with appellate consideration of the veteran's appeal. As noted by the Board previously, the veteran has raised other issues, notably entitlement to an increased rating for his service connected left shoulder disorder and service connection for a psychiatric disorder, claimed specifically as schizophrenia and PTSD. These matters are again directed to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in effect, that he is entitled to nonservice-connected pension benefits. Essentially, it is asserted that the veteran's physical disabilities prevent the performance of employment that requires strenuous activity. The accredited representative has pointed out that this is the only type of employment that is available to the veteran. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record establishes that for the period in question the veteran's income was excessive for receipt of nonservice-connected pension benefits. FINDINGS OF FACT 1. A formal application, VA Form 21-526, for nonservice- connected pension benefits was received from the veteran in March 1988. On his completed form, the veteran indicated that he expected to received annual Social Security benefits of $6,780 in 1988 and the same amount during the next calendar year. 2. In September 1988, the veteran filed an Income--Net Worth and Employment Statement (VA-Form 21-527) wherein he reported that he was in receipt of monthly Social Security benefits of $572 and service-connected compensation benefits of $71. 3. The maximum annual income for a veteran with no dependents was $6,214, effective December 1, 1987. 4. The veteran's annual income of $7,716 exceeded the amount allowed by law for the annualization period beginning March 1, 1988. CONCLUSION OF LAW The veteran's annual countable income for the 12-month period beginning March 1, 1988, exceeded the statutory maximum for the receipt of nonservice-connected pension benefits. 38 U.S.C.A. §§ 1521, 5107 (West 1991); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the basic facts in this case are not in dispute and may be briefly summarized. The record reflects that the veteran filed his initial claim for nonservice-connected pension benefits in March 1988. By a rating decision in August 1988, the RO determined that the veteran was not permanently and totally disabled for nonservice-connected pension purposes. However, as pertains to this appeal, whether he is permanently and totally disabled is irrelevant. In an Income--Net Worth and Employment Statement signed by the veteran in September 1988, he reported that he was in receipt of monthly Social Security benefits of $572 and service-connected compensation benefits of $71. In an October 1988 letter, the RO informed the veteran that his countable annual income was excessive for receipt of improved pension benefits. In this regard, the Board observes that the governing law and regulations specify that a veteran with no dependents, as in this case, was subject to the maximum annual income limitation of $6,214, effective December 1, 1987. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23(a). Basic entitlement to VA disability pension benefits exists if, among other things, the veteran meets the applicable net worth requirements and has annual income not in excess of the applicable maximum annual pension rate. 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.3, 3.23. The governing legal criteria in this case provide that for the purpose of computing income for improved pension, 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. 38 C.F.R. § 3.271(a). The veteran's Social Security and service-connected compensation benefits are clearly countable as income for pension purposes under 38 C.F.R. § 3.272. The Board acknowledges the veteran's argument that his nonservice-connected disabilities prevent him from following substantially gainfully employment consistent with his education and work experience. Although, we are sympathetic to the veteran's concerns, the controlling factor in this case is that his countable annual income is excessive for the receipt of improved pension benefits. The Board further observes that a December 1990 letter mailed by the RO, containing VA Forms 21- 0510 and requesting that the veteran provide current information regarding his annual income, was returned by the veteran in February 1991. However, he failed to provide any of the requested data pertaining his annual income for the calendar years at issue. The United States Court of Veterans Appeals (Court) held in Wood v. Derwinski, 1 Vet.App. 190 (1991) that the VA's duty to assist is not a one-way street. If the veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential to his claim. Hence, the Board finds that the denial of the veteran's claim due to excessive income is correct and in accordance with the governing criteria. Consequently, we are without authority to grant the benefit sought on appeal. It is precluded by law. In Sabonis v. Brown, 6 Vet.App. 426 (1994), the Court held that cases in which the law is dispositive, the claim should be denied because of the absence of legal merit. ORDER Accordingly, the appeal is denied. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.