Citation NR: 9725917 Decision Date: 07/28/97 Archive Date: 08/06/97 DOCKET NO. 96-16 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than September 7, 1995, for nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Todd A. Sinkins, Associate Counsel INTRODUCTION The appellant served on active duty from October 1942 to November 1945. This action comes to the Board of Veterans’ Appeals (the Board) from a January 1996 rating decision of the Department of Veterans Affairs (VA) Waco Regional Office (RO) which granted nonservice-connected pension benefits, effective from September 7, 1995. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his nonservice-connected pension benefits were erroneously revoked by the RO in September 1992, effective from February 1989. He notes that recovery of the overpayment of nonservice-connected pension benefits from February 1, 1989 to August 31, 1992 was waived by the RO in June 1995, and therefore, he contends that he is entitled to nonservice-connected pension benefits, effective from September 1, 1992. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 July 28, 1995 for the resumption of an award of nonservice-connected pension benefits. FINDINGS OF FACT 1. The RO received the appellant’s informal claim for nonservice-connected pension benefits on July 28, 1995. 2. The appellant has not submitted a claim for a retroactive award of pension benefits. 3. The evidence of record reflects that the appellant was permanently and totally disabled as of July 28, 1995, the date of receipt of his reopened claim therefor. CONCLUSION OF LAW An effective date of July 28, 1995 for an award of nonservice-connected pension benefits is warranted. 38 U.S.C.A. §§ 5107(a), 5110 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.155, 3.400 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the appellant was initially granted nonservice-connected pension benefits in an August 1987 RO decision, effective from August 1, 1987. However, his nonservice-connected pension benefits were revoked in September 1992, based on the fact that he failed to report $129,251 in unearned income, derived from a U.S. Department of Agriculture grant in 1989, and apparently paid directly to the court overseeing his personal bankruptcy proceedings. The appellant did not timely appeal the September 1992 RO decision revoking his nonservice-connected pension benefits. In this case, the appellant contends that the RO erroneously revoked his pension. The U.S. Court of Veterans Appeals (Court) has held that for there to be a valid claim of clear and unmistakable error (CUE), there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the legal provisions effective at the time were improperly applied; a mere difference of opinion in the outcome of the adjudication does not provide a basis to find VA committed administrative error during the adjudication process. Thompson v. Derwinski, 1 Vet.App. 251, 253-254 (1991); Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991); Robie v. Derwinski, 1 Vet.App. 612, 614-615 (1991). See also Damrel v. Brown, 6 Vet.App. 242, 245 (1994); Caffrey v. Brown, 6 Vet.App. 377, 384 (1994). To assert a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated; he must, with some degree of specificity, identify the alleged error and provide persuasive reasons why the result would have been different but for the alleged error. The mere assertion of clear and unmistakable error is not sufficient to reasonably raise the issue. See Russell v. Principi, 3 Vet.App. 310 (1992) (en banc); Fugo v. Brown, 6 Vet.App. 40 (1993), en banc review denied, Fugo v. Brown, 6 Vet.App. 162 (1994). In that regard, the Court has also held that VA's breach of the duty to assist cannot form a basis for a claim of CUE. Counts v. Brown, 6 Vet.App. 473, 480 (1994). Similarly, neither can broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error form such a basis. Fugo, 6 Vet.App. 162 (1994). In Luallen v. Brown, 8 Vet.App. 92 (1995), the Court reiterated that a valid claim of CUE must show that either 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 that the statutory or regulatory provisions extant at the time were incorrectly applied. More than a contention as to how the facts were weighted or evaluated, in short, must be asserted to establish a viable CUE claim. See also 38 C.F.R. § 3.105. In Fugo, 6 Vet.App. at 43-44, the Court stated: Clear and unmistakable error is a very specific and rare kind of ‘error.’ It is the kind of error, of fact or of law, that when called to the attention of the later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. . . . If a claimant-appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. In the instant case, the appellant has generally alleged error by the RO in the September 1992 revocation of nonservice-connected pension benefits, effective from February 1989. However, he has not alleged any specific error, nor has he provided persuasive reasons why the result would have been different, but for the alleged error. Therefore, the appellant has not made a valid claim of CUE in the RO’s September 1992 decision, and the only issue currently in appellate status is entitlement to an effective date earlier than September 7, 1995 for the resumption of his nonservice-connected pension benefits. The Board has found that the appellant's claim for an earlier effective date for his award of nonservice-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). 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 World War II; 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. In general, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. 5110(a); 38 C.F.R. § 3.400. 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. 38 U.S.C.A. § 5110; 38 C.F.R. 3.400(b). 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)(ii)(B). In addition, the provisions of 38 C.F.R. § 3.151(b) state that a pension award may not be effective prior to the date of receipt of the pension claim unless the veteran specifically claims entitlement to retroactive benefits, but the claim for retroactive benefits must be received by VA within one year from the date on which the veteran became permanently and totally disabled. The requirements of 38 C.F.R. § 3.400(b) must also be met to establish a valid claim of entitlement to retroactive pension benefits. In this case, the appellant’s formal claim for entitlement to nonservice-connected pension benefits was received by the RO on September 7, 1995. Nonservice-connected pension benefits were subsequently granted in a January 1996 RO decision, effective from September 7, 1995, the date of receipt of the formal claim (VA Form 21-527). In order for the assignment of an effective date prior to September 7, 1995, he must have filed an earlier claim for pension benefits, or a claim for a retroactive award of nonservice-connected pension benefits, establishing that he was prevented from applying for benefits by reason of physical or mental disability for at least 30 days beginning on the date on which he became permanently and totally disabled. 38 C.F.R. § 3.400(b)(ii)(B). The pertinent evidence of record includes receipts for private medical treatment and medication from November 1964 to September 1994. Further, on July 28, 1995, the RO received a letter from the appellant, indicating that he had stopped farming and had completely retired, and he requested therein that his nonservice-connected pension benefits be reinstated. In addition, he testified at his September 1996 personal hearing that he only received approximately $23,000 together with his son from the U.S. Department of Agriculture, and that the entire amount went to the bankruptcy court. In this case, the appellant has not specifically filed a claim for retroactive award and has not submitted evidence that he was prevented from applying for benefits by reason of disability. Therefore, the appellant has not established entitlement to a retroactive award of pension benefits. However, the Board construes the appellant’s July 28, 1995 letter requesting that his nonservice-connected pension benefits be restored as an informal claim for nonservice- connected pension benefits. In light of the fact that the RO found the appellant to be permanently and totally disabled in August 1987, and a formal claim for nonservice-connected pension was received on September 7, 1995, entitlement to an earlier effective date of July 28, 1995, for entitlement to nonservice-connected pension benefits is warranted. 38 U.S.C.A. §§ 5107(a), 5110; 38 C.F.R. §§ 3.155, 3.400. ORDER An earlier effective date of July 28, 1995 for nonservice- connected pension benefits is granted. J. F. GOUGH Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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 -