Citation NR: 9802684 Decision Date: 01/29/98 Archive Date: 02/03/98 DOCKET NO. 97-27 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an earlier effective date prior to December 29, 1995 for entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD C. Crawford, Associate Counsel INTRODUCTION The veteran had active service from May 1966 to January 1967. This appeal arises from an April 1997 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted entitlement to pension benefits and assigned an effective date from December 29, 1995. In response, the veteran disagreed with the assigned effective date and perfected an appeal therefrom. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the assigned effective date should be in May 1991 because that is when he initially filed his claim for VA pension benefits. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 supports the claim of entitlement to an earlier effective date to October 6, 1994 for nonservice- connected pension benefits. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran’s appeal has been obtained. 2. In an August 1991 decision, the RO denied the claim of entitlement to pension benefits. The veteran did not perfect the appeal. 3. On October 6, 1994, the veteran submitted an application for compensation or pension. 4. In December 1994, the RO denied the veteran’s claim. On December 23, 1994 notice was mailed to the veteran. The denial was confirmed and continued in January 1995. 5. On December 29, 1995, the RO received an Income-Net Worth and Employment Statement in which the veteran indicated that he wished to obtain pension benefits. 6. After reviewing additional evidence obtained, in April 1996 and July 1996 rating actions, the RO again denied the veteran’s claim. 7. In April 1997, the RO granted the veteran’s claim for pension benefits, effective from December 29, 1995. 8. The veteran's reopened claim for a permanent and total rating for pension purposes was received on October 6, 1994, as the record shows that the veteran’s has continuously prosecuted his claim since that time. However, it has not been shown that incapacitation prevented the veteran from filing this claim at an earlier time prior to October 6, 1994. CONCLUSION OF LAW Entitlement to an earlier effective date to October 6, 1994 for the award of nonservice-connected pension benefits is warranted. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105, 3.151, 3.400, 20.200 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks entitlement to an earlier effective date to May 1991 for pension benefits. VA law provides that pension is payable to veterans who have served in the active service for ninety days or more during a period of war and who are permanently and totally disabled from nonservice-connected disability not the result of willful misconduct. A veteran shall be considered to be permanently and totally disabled if (1) he has any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation (only if it is reasonably certain that such disability will continue throughout the life of the disabled person), (2) he is unemployable as a result of disability reasonably certain to continue through out his life, or (3) he has any disease or disorder determined to be of such a nature or extent as to justify a determination that the veteran is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. § 3.342 (1996). A finding of total disability is warranted where the person experiences any disability which is sufficient to render it impossible for an average person to follow a substantially gainful occupation. The "average person" standard is implemented by VA regulations, including 38 C.F.R. § 3.340(a), and § 4.15, which also adds that the total rating is based primarily upon the average impairment in earning capacity, i.e., the economic or industrial handicap which must be overcome. The average person standard requires rating, and then combining, each disability under the appropriate diagnostic code to determine whether the veteran holds a combined 100 percent schedular evaluation for pension purposes. See 38 C.F.R. §§ 3.342(b), 4.15 (1996). Where a veteran is unemployable as a result of disability reasonably certain to continue through out his life, a total disability ratings may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of disability, provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a) (1996). A veteran who is considered permanently and totally disabled under these criteria warrants a 100 percent schedular evaluation for pension purposes. 38 C.F.R. §§ 4.16, 4.17 (1996). 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; 38 C.F.R. § 3.400. The regulation further provide that 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. Id. 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(a)(b)(ii)(B). 38 C.F.R. § 3.151(b) (1996) states 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 and the claim for retroactive benefits was received by VA within one year from the date on which the veteran became permanently and totally disabled. Id. When a claim is disallowed by the RO and the veteran fails to perfect the appeal within the appropriate time period, the claim becomes final and may not thereafter be reopened and allowed, except upon the submission of new and material evidence with respect to that claim. 38 U.S.C.A. §§ 5108, 7105(d) (West 1991). Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where the evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Review of the record shows that in May 1991, the veteran submitted an application for compensation for alcoholism over twenty-five years. The record then shows that in June 1991 a VA examination was conducted. The examination report shows that the veteran complained of alcohol abuse, hypertension, and pain of the knees. After examination, diagnoses of multiple drug abuse, status post fracture of the right lower leg, and varicose veins of the right leg were made. After considering the foregoing evidence, in an August 1991 decision, the RO denied the veteran’s claim of entitlement to nonservice-connected pension benefits. Within the applicable time period thereafter, the RO received notice of disagreement and consequently, in August 1992, issued to the veteran a statement of the case. The veteran did not perfect the appeal. The record then shows that on October 6, 1994, the veteran submitted application for compensation in which he indicated that he wished to pursue claim of service connection for hypertension, a back disorder, a right knee disability, varicose veins, a heart disorder, and syphilis. At this time, it is noted that a claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. 38 C.F.R. § 3.151 (1996). As such, in November 1994, a VA examination was conducted. At VA examination in November 1994, the veteran complained of hypertension, a back disorder, right knee disorder, varicose veins, syphilis, and an enlarged heart. On objective evaluation, findings associated with the head and neck were unremarkable, the chest was clear to percussion and auscultation, and the heart appeared normal in size with a regular rhythm and rate to 70 and without evidence of murmur. The veteran’s blood pressure was 140/86 and examination of the abdomen was unremarkable without masses or organ enlargement present. Examination of the lower extremities revealed that the veteran walked with a limp, favoring his right lower extremity and that superficial varicose veins with 2+ pitting edema were seen. On examination of the lumbar spine, flexion was to 90 degrees with right lateral flexion to 45 degrees and rotation to 90 degrees, bilaterally. Posterior extension to 20 degrees and negative straight leg raising tests were also demonstrated. A normal spinal contour was also noted. In the summary section, the examiner stated that examination of the lumbosacral spine was unremarkable. Examination of the right knee revealed tenderness to palpitation and synovial thickening. Pain on flexion beyond 30 degrees, but not on stressful maneuvering was also present. In addition, the veteran could stand and bear weight on the right foot but could not hop on the right foot. He also could squat halfway, contending that he could not squat any further because of pain and stiffness of the right knee. After examination, diagnoses of status post treatment for syphilis with no residuals; hypertensive vascular disease controlled on medication; degenerative joint disease primarily affecting the right knee but also with some lumbosacral spine manifestations; and superficial varicose veins and mild dependent edema that was also related to obesity were made. After reviewing the foregoing, in a December 1994 rating action, the RO confirmed and continued the denial for pension benefits. Thereafter, the record shows that VA hospital and outpatient treatment reports from December 1992 to November 1994, were received. The reports essentially show that in December 1992, the veteran was hospitalized for substance abuse and on admission, physical and mental examinations were normal. The diagnoses were Axis I: alcohol dependence; Axis II: Deferred; Axis III: Hypertension, history of osteoarthritis, hyper- pigmented skin lesion, history of peptic ulcer disease; Axis IV: level of stress severe due to recent uncontrolled drinking; Axis V: Global Assessment of Functioning score previously was 65 and between 30 to 40 just prior to admission. The treatment reports also show continued treatment for hypertension, alcohol abuse, a right ankle disorder, right knee pain, arthritis, and peptic ulcer disease. The record then shows that on December 29, 1995, the RO received the veteran’s Income-Net Worth and Employment Statement report. On the report, the veteran indicated that his pension disabilities were arthritis of the leg, knees, shoulders, heart, hypertension, and depression. In a January 1995, the RO reviewed the VA medical records cited above; in a January 1995 rating action, the RO again denied the veteran’s claim. The veteran was notified of this determination in a January 1995 letter. Thereafter VA outpatient treatment reports from November 1995 to January 1996 were received. The reports generally show that in November 1995, the veteran’s blood pressure reading was 170/108 on the right and 166/106 on the left and that findings associated on ear, nose, and throat examination were essentially normal, as well as findings associated with the veteran’s chest, heart, abdomen, and lower extremities although crepitus of the knees was noted. The diagnoses were hypertension, rheumatoid arthritis, pharyngitis, and elevated cholesterol. The reports also show that the veteran continued to received treatment for various disorders, including hypertension, a visual disorder, bronchitis, knee pain, and elevated cholesterol. In an April 1996 rating action, after reviewing the foregoing evidence of record, the RO confirmed and continued the denial. The record then shows that in June 1996, duplicate copies of the veteran’s VA hospital and outpatient treatment reports from December 1992 to June 1994 were received. In response, in July 1996, the RO again denied the veteran’s claim for pension benefits and mailed notice to the veteran’s last address of record in July 1996. It is noted that even though the notice was returned as undeliverable, it appears as if the RO obtained the veteran’s current mailing address and scheduled a VA pension examination in October 1996. On VA examination in October 1996, the veteran expressed complaints associated with hypertension, a history of osteoarthritis, skin lesion, and history of peptic ulcer disease. The veteran also stated that he was unemployed and that he had last worked in 1986 as a compounder in a clinical plant. On objective evaluation, the veteran’s second blood pressure readings were 142/100 while sitting, 142/100 while standing, and 160/102 while lying supine. The veteran was well-developed and well-nourished with a normal posture, slow gait, and slight limp. He ambulated well without assistance of devices and findings associated with the head, eyes, ears, nose, and throat were normal. The lungs were clear to auscultation; the heart had regular rate and rhythm; and the abdomen was soft, nontender, and non distended with normal bowel sounds and without hepatosplenomegaly. Examination also showed that the lumbar spine had full range of motion with negative straight-leg raising tests and examination of the groin was normal. Examination of the right shoulder also demonstrated full range of motion with mild crepitation. Objective evaluation associated with the right knee showed that the veteran resisted flexion past 20 degrees and on the left knee, resisted flexion past 30 degrees. Mild crepitation without evidence of edema or effusion was present, as well as varicosities of the lower extremities was present. Examination of the skin revealed few hyperpigmented areas of skin of the arms, abdomen, back, buttocks, and legs. Reports of x-ray studies of the shoulders which essentially revealed evidence of an old united fracture of the outer end of the clavicle and evidence of some sclerotic changes suggesting post-traumatic degenerative changes and a report of an x-ray study of the knees which essentially revealed evidence of bilateral, chronic, severe, degenerative arthritis, hypertrophic involving each knee and suggestive effusion of the right, were also include. The diagnoses were hypertension, suboptimal control; bilateral knee and right shoulder pain, by history and rule out degenerative arthritis; dermatitis; history of peptic ulcer disease which was currently inactive; old right clavicle fracture; and elevated prostate-specific antigen, rule out prostates, benign prostatic hypertrophy, and prostate carcinoma. In April 1995, the RO granted the claim of entitlement to pension benefits, effective from December 29, 1995. The veteran received notification in May 1997 and with respect to the assigned effective date, perfected an appeal therefrom. As previously noted, the veteran asserts that the proper effective date for his pension benefits should be in May 1991. As previously noted, the regulations provide that 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. Id. 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(a)(b)(ii)(B). Here, in May 1991, the veteran filed an application for service connection for non-service-connected pension and in August 1991, the RO denied the veteran’s claim. In July 1992, the RO received the veteran’s notice of disagreement and in response, issued a statement of the case in August 1992. The veteran did not perfect the appeal within the applicable time period thereafter. As such, the August 1991 determination became final. The record then shows that on October 6, 1994, the veteran submitted another application for compensation and in December 1994, the RO confirmed and continued the prior denial. Notification of that determination was mailed to the veteran on December 23, 1994. The record also shows that the veteran’s claim was denied on numerous occasions thereafter. On December 29, 1995, the RO received an additional application for pension benefits. In this regard, the Board notes that the RO construed the December 29, 1995 application as a informal claim to reopen the previously disallowed pension claim, and therefore, did not issue a statement of the case to the veteran. However, the Board finds that liberally interpreted, the application should have been construed as a notice of disagreement for the December 1994 rating decision. In this regard, the Board notes that liberally construed, the application meets the requisite criteria prescribed in 38 C.F.R. § 20.201 (1996); that is, the veteran’s wording can reasonably be construed as disagreement with the prior denial and as a desire for appellate review. Id. It is also noted that the application, i.e., notice of disagreement, was received within the appropriate time period. The application was received within one year from the date that the RO mailed notice of the December 23, 1994 notification letter. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302 (1996). At this time, the Board emphasizes that notification of the December 1994 rating determination was mailed on December 23, 1994 and the application for pension benefits (notice of disagreement) was received on December 29, 1995. When VA rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. But, in the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt by the VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305 (1996). In addition, in computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included and where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included. Id. The aforementioned regulation is reiterated in 38 C.F.R. § 3.110 (1996), which also provides that the first day of the “specified period” referred to above shall be the date of mailing of notification to the claimant of the action required and the time limit therefor. The date of the letter of notification shall be considered the date of mailing for purposes of computing time limits. 38 C.F.R. § 3.110. Accordingly, in this case, the RO mailed the notification letter on December 23, 1994. Excluding the first day of the specified period, pursuant to VA regulations, the beginning date of the allotted period is December 24, 1994, and, including the last day but excluding the legal holiday, the veteran’s one year period for filing a notice of disagreement expired on December 26, 1995, the next succeeding workday. 38 C.F.R. §§ 3.110, 20.305. The December 29, 1995 application (notice of disagreement, does not exhibit the postmark date. As such, the postmark date will be presumed to be five days prior to that date, or December 25, 1995. However, December 25, 1995 was a legal holiday and December 23 and 24 fell on a Saturday and Sunday, respectively. Id. The applicable regulations, therefore, provide that the letter may be considered to have been received on Friday, December 22, 1995, prior to the December 26, 1995 expiration date. Id. The record also shows that the veteran continuously prosecuted his claim until April 1997 when the RO granted entitlement to pension benefits, effective from December 29, 1995. In this case, the record clearly shows that in August 1991, the RO denied the claim for pension benefits and the veteran did not perfect an appeal within the applicable time period. The claim became final. As previously noted, determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 3.104, 3.105. The veteran has not alleged or identified a clear and unmistakable error in the RO’s 1991 decision. Accordingly, that rating action decision denying entitlement to pension benefits is final and binding. As such, the veteran cannot receive entitlement to an effective date prior to the RO’s August 1991 decision. However, as previously discussed, subsequent to the RO’s decision, on October 6, 1994, the RO received a subsequent claim for pension benefits. The record then shows that in December 1994, the RO denied the veteran’s claim and mailed notice on December 23, 1994. Liberally construed, on December 29, 1995, the RO received the veteran’s notice of disagreement, and the record thereafter shows that the veteran continuously prosecuted his claim until April 1997. Given the procedural history of this case and the foregoing reasoning discussed above, the Board concludes that the veteran’s claim for pension benefits relates back to October 6, 1994 and as such, that date is the proper effective date. However, review of the evidence in this case does not support an effective date earlier than October 6, 1994--the date of receipt of the veteran’s claim, given the unique circumstances of this case. As previously noted, in order to be entitled to an earlier effective date, the veteran must file a claim for a retroactive award and must establish 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). In this case, such evidence has not been submitted. 38 C.F.R. § 3.400(a)(b)(ii)(B). Given the unique procedural development in this case and because there is no evidence on file that demonstrates entitlement to an earlier effective date prior to October 6, 1994 in accordance with 38 C.F.R. §§ 3.151 and 3.400(a)(b)(ii)(B), the Board finds that October 6, 1994, is the earliest possible effective date allowable. As such, entitlement to an effective date to October 6, 1994 and no earlier is warranted. 38 U.S.C.A. §§ 5108, 5110, 7105; 38 C.F.R. §§ 3.104, 3. 105, 3.151, 3.400. ORDER Entitlement to an earlier effective date to October 6, 1994 and no earlier for the award of nonservice-connected pension benefits is granted. V. L. Jordan Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 -