Citation Nr: 1308187 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-25 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to a permanent and total rating for nonservice-connected pension purposes. 2. Entitlement to service connection for a left wrist disability. 3. Entitlement to service connection for a right wrist disability. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for a bilateral knee disability. 6. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral eye disorder. REPRESENTATION Appellant represented by: David M. Hicks, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to January 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2011, the Veteran testified at the RO before the undersigned Veterans Law Judge (i.e., a Travel Board hearing). Although the Veteran's attorney was not present, he elected to proceed with his hearing. A transcript of this hearing is of record. Additional pertinent evidence was received from the Veteran in April 2011. The Veteran has waived initial RO review of this evidence and the Board will consider it. 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. In April 2011, prior to the promulgation of a decision in this appeal, the Veteran withdrew his claims for service connection for a left wrist disability, a right wrist disability, a low back disability, a bilateral knee disability, and his application to reopen a claim for service connection for a bilateral eye disorder. 2. The Social Security Administration (SSA) has determined that the Veteran is disabled and entitled to Supplemental Security Income (SSI) payments; as such the Veteran is considered by VA to be permanently and totally disabled. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeals for service connection for a left wrist disability, a right wrist disability, a low back disability, a bilateral knee disability, and the application to reopen a claim for service connection for a bilateral eye disorder. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The Veteran is permanently and totally disabled for VA pension purposes. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.340, 3.342, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeals The Board notes that in its April 2007 rating decision, the RO in pertinent part, determined that new and material evidence had not been submitted to reopen a claim for service connection for a bilateral eye disorder, and denied service connection for a left wrist disability, a right wrist disability, a low back disability, and a bilateral knee disability. The Veteran appealed each of these determinations. In April 2011, prior to the promulgation of a decision in this appeal concerning these five claims, the Board received a written statement from the Veteran withdrawing these claims. At his April 2011 Board hearing, the Veteran reiterated his wish to withdraw his appeal as to these five issues. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be by the appellant or his or her authorized representative. Id. This Veteran has withdrawn his appeals for service connection for a left wrist disability, a right wrist disability, a low back disability, and a bilateral knee disability, and his appeal to reopen a claim for service connection for a bilateral eye disorder, and, hence, there remain no allegations of errors of fact or law for appellate consideration concerning these five claims. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and they are dismissed. Notice and Assistance As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the Board's entirely favorable decision regarding the claim for nonservice-connected disability pension benefits, discussion of these duties to notify and assist the Veteran with this claim is unnecessary, and the Board finds that he appellant is not prejudiced by a decision on the claim at this time. Nonservice-Connected Disability Pension Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is unable to work due to his multiple nonservice-connected disabilities, specifically his heart disorder, hypertension, bilateral wrist disability, low back disability, bilateral knee disability, and a thyroid disorder. See his April 2011 hearing transcript. Disability pension will be paid to a Veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct. 38 U.S.C.A. §§ 1502, 1503, 1521. As pertinent to this case, in order to have qualifying service for nonservice-connected disability pension, a Veteran must have at least 90 consecutive days of active military service, part of which was during a wartime period. See 38 U.S.C.A. § 1521(j)(3). A period of war, in pertinent part, includes the Vietnam Era from August 5, 1964 (February 1961 for a Veteran who served in Vietnam) to May 7, 1975. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2. As the Veteran served on active duty from April 1975 to January 1980, for more than 90 consecutive days partly during a period of war, he has demonstrated qualifying active service for pension eligibility. All Veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. 38 C.F.R. § 4.17. Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards set forth at 38 C.F.R. § 4.16 but is found to be unemployable by reason of his disabilities, age, occupational background and other related factors, a permanent and total disability rating for pension purposes may be authorized. 38 C.F.R. § 3.321(b)(2). The record shows that the Veteran was born in September 1953, is 59 years old and completed 2 years of college. In an April 2006 statement, the Veteran stated that he had not worked for over two years, and was unable to find employment because of his medical problems. In an Income-Net Worth and Employment Statement dated in May 2006, the Veteran reported that he worked as a customer service representative for four months, and that he last worked in July 2002. He submitted a paystub dated in June 2002. At his April 2011 Board hearing, the Veteran testified that he has not worked since the mid-1990s. He stated that he worked as a vocational program aide, working mostly with his hands, for about 15 years. He provided testimony regarding his multiple disabilities and their effects on his ability to work. VA medical records reflect treatment for multiple conditions, including hypertension and chest pain. A report of a January 2010 nuclear medicine myocardial perfusion SPECT stress test showed a large area of moderate stress-induced ischemia involving the anterior and lateral walls, and a large area of mild stress-induced ischemia involving the inferior wall. There was left ventricular dilatation with preserved left ventricular ejection fraction of 55 percent. A March 2010 VA cardiology progress note indicated an assessment of chest pain with an abnormal stress test showing large areas of ischemia. Records from the SSA reflect that the Veteran was awarded SSI benefits in an April 2010 decision. The SSA determined that the Veteran had been disabled since July 1, 2009, due to severe impairment from ischemic heart disease. 38 U.S.C.A. § 1502 requires VA to presume that a Veteran is permanently and totally disabled if the Veteran is: a patient in a nursing home for long-term care due to disability; determined to be disabled for purposes of Social Security Administration benefits; unemployable as a result of disability reasonably certain to continue throughout the life of the Veteran; or suffering from either a permanent disability which would render it impossible for the average person to follow a substantially gainful occupation or any disease or disorder that the Secretary of VA determines justifies a finding that the Veteran is permanently and totally disabled. 38 U.S.C.A. § 1502 (West 2002). Since it has been shown that the Veteran receives SSI payments, the Board finds that the Veteran is permanently and totally disabled for VA nonservice-connected pension purposes, and the appeal is granted. ORDER The appeals for service connection for a left wrist disability, a right wrist disability, a low back disability, a bilateral knee disability, and to reopen a claim for service connection for a bilateral eye disorder are dismissed. Entitlement to a permanent and total rating for nonservice-connected pension purposes is granted. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs