Citation NR: 9702278 Decision Date: 01/24/97 Archive Date: 02/07/97 DOCKET NO. 95-08 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date prior to November 15, 1993 for nonservice-connected disability pension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Todd A. Sinkins, Associate Counsel INTRODUCTION The appellant had confirmed active service from March 1954 to January 1956 and from January 1968 to June 1969. This action comes to the Board of Veterans’ Appeals (the Board) from a January 1995 rating decision of the Department of Veterans Affairs (VA) Houston Regional Office (RO) which granted entitlement to a nonservice-connected disability pension, effective from November 15, 1993. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is entitled to an effective date of November 4, 1992, for his nonservice-connected disability pension because he claims that he has been totally disabled and unable to work since that date. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the appellant'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 supports an earlier effective date of April 15, 1993, for the appellant’s receipt of VA nonservice-connected disability pension benefits. FINDINGS OF FACT 1. The RO received a claim for VA nonservice-connected disability pension benefits on March 29, 1993, and denied that claim in a July 1993 RO decision; the appellant did not timely appeal such decision following notification thereof. 2. In August 1994, the appellant requested reopening of his claim for nonservice-connected disability pension, which the RO granted in a January 1995 rating decision, effective from November 15, 1993. 3. The evidence constructively of record at the time of the July 1993 RO denial of entitlement to VA nonservice-connected pension benefits reflects that the appellant was permanently and totally disabled due to his spinal stenosis on April 15, 1993. CONCLUSION OF LAW An effective date of April 15, 1993 for VA nonservice- connected disability pension benefits is warranted, based on clear and unmistakable error in a July 1993 RO decision. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. §§ 3.105, 3.400 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board has found that the appellant's claim for an earlier effective date for his award of non service- connected pension is well grounded pursuant to 38 U.S.C.A. § 5107(a), in that it is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed with respect to his claim, and that no further assistance to the appellant is required in order to comply with the VA duty to assist him in developing his claim. 38 U.S.C.A. § 5107(a). The effective date of an award of VA nonservice-connected disability pension shall be fixed in accordance with the facts found, but shall not be earlier than the date entitlement arose. But if, within one year from the date on which the veteran became permanently and totally disabled, he files a retroactive claim and establishes that he was prevented from applying for benefits by reason of disability for at least 30 days beginning on the date on which he became permanently and totally disabled, the effective date will be the date of application for the benefits or the date on which he became permanently and totally disabled, whichever is to the advantage of the veteran. 38 U.S.C.A. § 5110; 38 C.F.R. 3.400(b). Under 38 C.F.R. § 3.105(a) (1995), "[P]revious determinations which are final and binding . . . will be accepted as correct in the absence of clear and unmistakable error." Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The U.S. Court of Veterans Appeal has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination: (1) "[E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet.App. 310, 313- 14 (1992) en banc). A finding of clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). To be entitled to a permanent and total disability rating, a two-part test must be met under 38 U.S.C.A. § 1521. First, the appellant must have served for ninety (90) days or more during a period of war. Second, the veteran must be permanently and totally disabled. The appellant meets the first part of this test as he served more than ninety (90) days during the Vietnam Era; thus, he is basically eligible for a VA nonservice-connected disability pension. See 38 C.F.R. § 3.2(f). A total disability rating is based primarily upon the average impairment in earning capacity. 38 C.F.R. § 4.15. The VA's Schedule of Rating Disabilities also provides a means for objective determination of total disability. When impairment is commensurate with a 100 percent rating in accordance with the schedular criteria, a total rating on a schedular basis is warranted. 38 C.F.R. § 3.340. 38 C.F.R. § 4.17 provides that all veterans basically eligible and unable to secure or follow a substantially gainful occupation by reason of disability, likely to be permanent, shall be rated permanently and totally disabled. For VA pension purposes, the permanence of the percentage requirements of § 4.16 is a requisite. If the veteran has only one disability, it shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Court has rendered several opinions which affect the development and analysis of claims for permanent and total disability ratings for pension purposes. In Talley v. Derwinski, 2 Vet.App. 282 (1992), the Court explained that pension cases must be adjudicated applying both an "objective" and "subjective" standard and that the adjudicatory body must be clear as to which standard is applied. In Roberts v. Derwinski, 2 Vet.App. 387, 389 (1992), the Court held that the appellate decision was deficient, in part, because it only considered the regulations applicable to pension benefits without evaluating each one of the veteran's disabilities under the rating schedule first. The Court noted that an evaluation must be performed under the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability. This means that the RO has the responsibility of identifying all disabilities which an appellant currently has, determining whether they are permanent in nature, and assigning a schedular evaluation for each one of them under the VA Rating Schedule, 38 C.F.R. Part 4. The Court further noted that consideration of the claim on an extra-schedular basis under 38 C.F.R. § 3.321(b)(2) was not addressed. Thus, the RO has an additional obligation to determine whether any of the disabilities should be assigned an extraschedular evaluation in lieu of the schedular evaluation provided in the VA Rating Schedule, 38 C.F.R. Part 4. The necessary steps in adjudicating pension claims were carefully delineated in Talley, Roberts, cited above, and Brown v. Derwinski, 2 Vet.App. 444 (1992). The Court has analyzed the law with respect to pension entitlement under 38 U.S.C.A. § 1502 and set up a two-prong test for pension eligibility. The Court indicated that permanent and total disability could be shown in one of two ways: Either (1) the veteran must be unemployable as a result of a lifetime disability (this is the "subjective" standard and is based on the veteran's individual work experience, training and disabilities), or (2) if not unemployable, he must suffer from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation (this is the "objective" standard). Brown, 2 Vet.App. at 446-47. In making these determinations, the RO must also apply the percentage standards of 38 C.F.R. §§ 4.16 and 4.17, i.e., the "objective" standard and consider entitlement to extra- schedular evaluations under 38 C.F.R. § 3.321(b)(2), i.e., the "subjective" standard. The appellant was treated for his spinal stenosis at the Bexar County Hospital in December 1992, at which the treating physician noted no point tenderness and full flexion (he could straighten his back and nearly touch his toes). He was found to have weak hip flexors in the lying position bilaterally, with all other muscles having 5/5 strength. A January 1993 physical therapy report noted that the appellant was not working due to pain. The appellant was again treated at the Bexar County Hospital in March 1993 for complaints of excruciating, non-radiating back pain, with the right side more severe. He was unable to walk due to pain. His quadriceps, hamstrings, tibialis anterior, extensor hallucis longus and gastrocs showed 5/5 motor strength. Sensory exam was intact to light touch and although he had some subjective mild decreased sensation to the lateral calf and the plantar surface of the right foot, two point discrimination was intact. His reflexes were 2+ bilaterally at the knees, 1+ bilaterally at the ankles and he had downgoing toes. There was bilateral slight tenderness to palpation diffusely paraspinally, with negative straight leg raise, supine and sitting to 75 degrees. There was a negative bowstring test and negative flip test. Range of back motion was 0 to 20 degrees due to pain. He had some back spasms. EMG/Nerve Conduction Velocity studies revealed no evidence of lower extremity peripheral neuropathy, although a bilateral gastroc denervation suggested S1 axonal loss. X-ray studies of the lumbosacral spine revealed that the neuroforamina between L4 and L5 appeared small, with minimal osteophytes of the lower lumbar vertebra. Possible facet disease at the L5 vertebral level was shown with no evidence of fracture. An MRI study of the lumbosacral spine showed diffuse severe spinal stenosis from the third lumbar through to the first sacral vertebral bodies secondary to a combination of diffuse disc bulging and degenerative facet joint changes at multiple levels, a congenitally small cord, with no evidence of discrete disc herniation appreciated. The RO received the appellant’s claim for nonservice- connected disability pension on March 29, 1993. VA outpatient treatment records from April 1993, reflect that he had no costovertebral angle tenderness, with right greater than left paraspinous muscle spasms. A VA treating physician also reported that the appellant had non insulin-dependent diabetes mellitus that was stable and controlled by diet. Also, an April 15, 1993 Routing and Transmittal slip, signed by a VA attending physician, noted that the appellant was unable to resume employment, and that he would be so incapacitated for six months. He was also noted as having spinal stenosis in May 1993. In June 1993, a VA treating physician noted that the appellant was unable to be gainfully employed due to his spinal stenosis, and that there was no surgical or medical therapy that would enable him to work. Also in June 1993, he was noted as having diabetes mellitus controlled by diet, with complaints of pain at both popliteal areas at 50 yards. He was also treated at the Bexar County Hospital in June 1993 at which the treating physician noted full range of lumbosacral motion, with the lumbosacral spine being nontender. Deep tendon reflexes were 3/4 and strength was 5/5, with no sensory deficit. Straight leg raising was negative, bilaterally. In July 1993, a VA treating physician noted that the appellant had diabetes mellitus under excellent control with hypertension. The RO denied entitlement to a permanent a total disability rating for nonservice-connected pension purposes in July 1993, and notification of that denial was sent to the appellant in August 1993. In August 1993, a VA treating physician noted evidence of radiographic spinal stenosis with clinical symptomatology. The VA treating physician reported that the appellant desired surgery so that he could return to work. He complained of occasional numbness of both feet when walking or on both feet. The treating physician noted minimal tenderness at L5-S1, with flexion at 80 degrees and extension at 20 degrees. Sensation and straight leg raising was normal, bilaterally. Hip flexors and knee extensors were 4/5, bilaterally, with other motor strength 5/5, bilaterally. The appellant reopened his claim of entitlement to a permanent and total disability rating for nonservice- connected pension purposes in August 1994, and the RO granted a nonservice-connected pension in January 1995, effective from November 15, 1993. Thereafter, he timely perfected an appeal as to an earlier effective date for his nonservice- connected pension. The appellant testified at his October 1996 hearing that he last worked as an air conditioner mechanic on November 4, 1992. He testified that he had to discontinue his employment due to back pain. The appellant was granted a nonservice-connected disability pension on the basis that he was permanently and totally unemployable, and that his spinal stenosis was evaluated as 60 percent disabling pursuant to 38 C.F.R. Part 4, Diagnostic Codes 5292 and 5293, his diabetes mellitus was rated as 20 percent disabling pursuant to Code 7913, his organic brain syndrome secondary to alcoholism and his adult adjustment reaction of psychotic proportion were rated 0 percent disabling under Codes 9303 and 9410, respectively. Under Diagnostic Code 5293 a 60 percent rating is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to site of diseased disc and little intermittent relief; a 40 percent rating for severe intervertebral disc syndrome with recurring attacks with intermittent relief; and a 20 percent rating for moderate intervertebral disc syndrome with recurring attacks. 38 C.F.R. Part 4, Diagnostic Code 5293. Alternatively, the disability might be rated under the criteria for limitation of motion of the lumbar spine. Under 38 C.F.R. Part 4, Diagnostic Code 5292, the rating schedule provides a 40 percent rating for severe limitation of motion of the lumbar spine; and a 20 percent rating for moderate limitation of motion of the lumbar spine. Likewise, under Diagnostic Code 7913, a 10 percent disability rating is warranted if the disorder is mild in degree and can be controlled by diet without insulin, and is without impairment of health or vigor or limitation of activity. A 20 percent rating is warranted if the disorder is moderate in degree with moderate insulin or oral hypoglycemic agent dosage and without impairment of health or vigor or limitation of activity. The VA received the appellant’s claim on March 29, 1993. Therefore, he is not entitled to an effective date earlier than March 29, 1993, unless he can establish that he was prevented from applying for benefits by reason of disability for at least 30 days beginning on the date on which he became permanently and totally disabled. 38 U.S.C.A. § 5110; 38 C.F.R. 3.400(b). In this case, he was first medically observed by a VA treating physician to be unable to work due to his disabilities on April 15, 1993, when he was noted as incapacitated for at least six months. In June 1993, a VA physician noted that he was unable to be gainfully employed due to his spinal stenosis, and that there was no surgical or medical therapy that would enable him to work. VA treatment records are constructively included within the record. Bell v. Derwinski, 2 Vet.App. 611, 613 (1992). As a result, although the April 1993 Routing and Transmittal slip reflecting that the appellant was unable to resume employment for 6 months was not associated with the claims folder until his October 1996 Travel Board hearing, it is considered to have been evidence before the RO since its date of creation, April 15, 1993. Likewise, the June 1993 VA treatment record reflecting that he was unable to be gainfully employed due to his spinal stenosis, and that there was no surgical or medical therapy that would enable him to work was constructively of record as of June 1993. Thus, since he was unable to work on April 15, 1993, and continued to be unable to work up until June 1993, when he was noted as being permanently disabled, it appears amply evident that he was permanently and totally disabled from April 15, 1993 onward. Since this evidence was constructively before the RO at the time of its July 1993 denial of a permanent and total disability rating for nonservice-connected pension purposes, and the RO did not consider such evidence in its denial, the 1993 RO denial is clearly and unmistakably erroneous. See Damrel, 6 Vet.App. at 245. However, there is no evidence of record that the appellant was prevented from applying for benefits by reason of any disability or that he was permanently and totally disabled prior to April 15, 1993. Rather, although there were back spasms, and a limitation of back motion due to pain in March 1993, there was no evidence of peripheral neuropathy, and ankle jerk was not found to be absent. Further, he was not found to have diabetes mellitus until March 1993, and his diabetes mellitus was noted as being diet controlled in June 1993 and under excellent control in July 1993. Therefore, since the appellant is not shown to have been prevented from applying for pension due to a disability, he is only entitled to an effective date as of the date of receipt of claim or the date entitlement arose, whichever is later. As he was not shown to be totally and permanently disabled until April 15, 1993, an effective date for nonservice-connected pension earlier than April 15, 1993, is not warranted. ORDER An earlier effective date of April 15, 1993 for entitlement to a permanent and total disability rating for nonservice- connected disability pension purposes is granted. J. F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -