Citation Nr: 1310609	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-44 753	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for right hip osteoarthritis.

2.  Entitlement to service connection for left hip osteoarthritis.  

3.  Entitlement to service connection for low back degenerative joint disease.

4.  Entitlement to service connection for a left Achilles tendon disorder.

5.  Entitlement to nonservice-connected pension benefits for the years 2009 and 2010, currently denied on the basis of excessive income.


ATTORNEY FOR THE BOARD

S. Higgs, Counsel



INTRODUCTION

The Veteran served on active duty from January 1975 to September 1981.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the RO that found that new and material evidence had not been received to reopen claims of service connection for a left hip condition, a right hip condition, a low back condition and a left Achilles tendon condition and determinations that his income for the purpose of receipt of nonservice-connected pension benefits was excessive.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

As will be discussed, in December 2010, the Veteran submitted additional evidence pertaining to his claim for receipt of nonservice-connected pension benefits and waived initial consideration by the RO of that material.  Accordingly, the Board will consider the newly received evidence in this decision.  See 38 C.F.R. § 20.1304(c).

The Veteran had previously filed for and been denied nonservice-connected pension benefits.  Specifically, the claim was denied by a letter dated October 9, 2008.  The Veteran failed to express disagreement with that rating decision, and thus, it became final.  38 U.S.C.A. § 7105 (notice of disagreement and appeal); 38 C.F.R. § 20.1103.  

Generally, if a decision is not appealed, the claim will not thereafter be reopened and allowed, except as provided by regulations not inconsistent with Title 38 of the U.S. Code.  38 U.S.C.A. § 7104(b).  One exception to this general rule is that if new and material evidence is submitted, the claim may be reopened and allowed.  38 U.S.C.A. § 5108 (West 2002).  

However, the Court has held that this exception is not applicable to pension cases.  See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992) (a claim for nonservice-connected pension filed following final denial of previous nonservice-connected pension claim is a new claim not subject to new and material evidence requirement).  

The Court elaborated that "reopening," although occasionally used to refer to other types of claims, applies in its strictest sense only to allow reopening of previously denied claim for service-connected benefits.

The RO received another claim for nonservice-connected pension benefits by a phone call with the Veteran on October 28, 2009.  This claim too was denied by the RO.  The Veteran expressed disagreement with this decision.  An October 2010 Statement of the Case was received and an appeal to the Board was perfected when a VA Form 9 was received in November 2010.  See 38 U.S.C.A. § 7105.
 
Also, as will be discussed, additional relevant official service department records have been received for consideration since the time of the October 2008 unappealed denial with respect to the claims of service connection for right hip osteoarthritis, left hip osteoarthritis, low back degenerative joint disease, and a left Achilles tendon disorder.  

As a result, the claims denied in October 2008 are to be readjudicated, without regard to whether new and material evidence has been received.  See 38 C.F.R. § 3.156(c) (where additional and relevant service department records have been received that existed and were reasonably identified by the Veteran at the time of prior adjudications, the claim is to be readjudicated without the requirement that new and material evidence be received). 

The issues of service connection for right hip osteoarthritis, left hip osteoarthritis, low back degenerative joint disease, and a left Achilles tendon disorder are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's total countable annual income for pension purposes in year of 2009 is shown to have been $21,285.12

2.  The Veteran's total countable annual income for pension purposes in the year of 2010 is shown to have been $20,938.44.


CONCLUSION OF LAW

The Veteran's countable annual income was in excess of the limit for receipt of nonservice-connected disability pension benefits for the years of 2009 and 2010.  38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.21, 3.23, 3.271, 3.272, 3.273 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

A November 2009 VCAA notice letter included a VA Form 21-0515-1, Improved Pension Eligibility Form, and requested the Veteran to compete the form before VA could take further action on his claim.  Thus, the letter, by providing the form for completion, explained the evidence necessary to substantiate the claim for pension, and his and VA's role at that stage in the adjudication process.  

In addition, the November 2009 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In an October 2010 Statement of the Case, the RO informed the Veteran that his claim for pension was denied because he had not provided the complete Improved Pension Eligibility Form as requested.  In response, he provided the requested Improved Pension Eligibility form in October 2010, and was informed by a November 2010 supplemental statement of the case that his income from SSA disability benefits was $19,656, annually, which exceeded the maximum annual disability pension set by law.  

The Veteran was advised that, in the past, he had been advised that he might still be entitled to pension if unreimbursed medical expenses reduced his income below the allowable limited, but he had not provided the requested information as to unreimbursed medical expenses.  In December 2010, he provided his unreimbursed medical expenses.

Thus, he has demonstrated actual knowledge that the information and evidence he needed to submit was evidence of his income, and his unreimbursed medical expenses by which his income may be reduced for purposes of determining whether he had excessive income for VA pension benefits.  This actual knowledge renders any VCAA notice deficiency that may have arisen in this matter as no more than harmless, non-prejudicial error.

In December 2010, when the Veteran submitted additional information and evidence pertaining to his claim for nonservice-connected pension, he wrote that he waived review by the Regional Office in favor of the Board's consideration of the evidence.

With regard to the duty to assist, the claims file contains all relevant identified evidence-specifically, the Veteran's income and medical expenses for the periods for consideration in this appeal.  The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim that would raise a reasonable possibility of substantiating the claim.  See 38 U.S.C.A.§ 5103A(a)-(c).

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Essentially, all available evidence that could substantiate the claim has been obtained.  There is no indication in the claims file that there are additional available relevant records that have not yet been obtained that would raise a reasonable possibility of substantiating the claim.  


Merits of the Claim

As an initial matter, the Board notes that the Veteran's claim for nonservice-connected pension benefits for a time period prior to 2009 was denied by the RO by a letter dated October 9, 2008.  The Veteran did not submit a notice of disagreement or additional evidence within the one year appeal period, and that decision became final.  See 38 U.S.C.A. § 7105.  

As noted, the Court has held that reopening of claims based on new and material evidence for claims for nonservice-connected pension is not warranted for pension cases.  See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992) (a claim for nonservice-connected pension filed following final denial of previous nonservice-connected pension claim is a new claim not subject to new-and-material evidence requirement).  The Court elaborated that "reopening," although occasionally used to refer to other types of claims, applies in its strictest sense only to allow reopening of previously denied claim for service-connected benefits.

As a result, and as discussed, the claim within the Board's appellate jurisdiction is the currently appealed claim for nonservice-connected pension for the years of 2009 and 2010.

Improved nonservice-connected pension is a benefit payable by VA to a Veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the Veteran's willful misconduct.  38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2012).  Basic entitlement to pension exists if, among other criteria, the Veteran's income is not in excess of the specified maximum annual pension rate (MAPR).  38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4).  

In this case, the Veteran was awarded basic eligibility for pension.  He has more than 90 days of wartime service and is administratively deemed totally disabled by reason of receiving Social Security Administration disability benefits.  See generally 38 U.S.C.A. § 1521(a) (non-service connected disability pension benefits for veterans of a period of war).

The Veteran's appeal arises from the determination that his income exceeded the maximum annual disability pension limit for the years of 2009 and 2010.

The maximum annual rates of pension and death pension payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as if published in VA regulations.  38 C.F.R. § 3.21.  In determining annual income for payment of pension, all payments of any kind or from any source shall be counted as income during the 12-month animalization period in which received unless specifically excluded under 38 C.F.R. § 3.272.  Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated.  38 C.F.R. § 3.271(a)(1).  

Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(1)-(3).  

The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable.  38 C.F.R. § 3.273(c).  

The Veteran's annual income includes the annual income of the Veteran, his dependant spouse, and children in the Veteran's custody or to whose support the Veteran is reasonably contributing. 38 C.F.R. § 3.23(d)(4).

In the current case the evidence shows that the Veteran is divorced and has no dependents.

The following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses which have been paid in excess of five percent of the MAPR.  38 C.F.R. § 3.272.  

Income from Social Security Administration (SSA) disability benefits is not specifically excluded and therefore is included as countable income.  38 C.F.R. § 3.272.  Exclusions from countable income include unreimbursed medical expenses that are in excess of five percent of the applicable maximum annual pension rate and that have been paid within the 12-month annualization period regardless of when the indebtedness was incurred.  38 C.F.R. § 3.272(g).  

The evidence shows that the Veteran is in receipt of SSA benefits.  Therefore, the Board must take those monthly SSA payments into account when calculating the Veteran's countable annual income.

Effective on December 1, 2008, the maximum annual rate of improved pension (MAPR) for permanent and total disability for a Veteran with no dependents, as is the case here, was $11,830.  See VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B.


MAPR for a Veteran with one dependent was $15,493; and for a Veteran with two dependents was $17,513.  See VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B.

The evidence of record shows that, for pension year of 2009, the Veteran received a monthly payment of $1,781.00 from SSA from December 2008 through November 2009.  Based on those figures, the Veteran's annual income before deductions was $21,372.

Although documentation of claimed medical expenses is scant, even taking the Veteran's submitted medical expenses at face value, in the light most favorable to his claim, for pension year of 2009, they amount to $677.88.  

This is more than five percent of the $11,830 MAPR in this case for pension year 2008, which is $591; thus, viewed in the light most favorable to the Veteran, medical expenses of $677.88 less $591, or $86.88, may be deducted from his income for VA pension purposes.

However, his income of $21,372 for pension year of 2009, less $86.88, results in countable income of $21,285.12, which is substantially in excess of the MAPR of $11,830.  Accordingly, given the facts not in dispute in this matter, viewed in the light most favorable to the Veteran, the receipt of nonservice-connected pension benefits is not warranted for this year.

The evidence of record shows that, for pension year of 2010, the Veteran received a monthly payment of $1,780.60 from SSA from December 2009 through November 2010.  Based on those figures, the Veteran's annual income before deductions was $21,367.20.

Although documentation of claimed medical expenses is scant, even taking the Veteran's submitted medical expenses at face value, in the light most favorable to his claim, for pension year 2010, they amount to $1019.76.  

This is more than five percent of the $11,830 MAPR in this case for pension year 2009, which is $591. Thus, viewed in the light most favorable to the Veteran, medical expenses of $1,019.76 less $591, or $428.76, may be deducted from his income for VA pension purposes.

However, his income of $21,367.20 for pension year of 2010, less $428.76, results in countable income of $20,938.44, which is substantially in excess of the MAPR of $11,830.  

Accordingly, given the facts not in dispute in this matter, viewed in the light most favorable to the Veteran, the receipt of nonservice-connected pension benefits is not warranted for this year.

Where, as here, the material facts are not in dispute, and are viewed in the light most favorable to the Veteran, and the law is dispositive, the matter on appeal must be terminated or denied as without legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  

To the extent that the Veteran's income is shown to exceed the income limits for the periods in question, claim for the payment of improved pension benefits is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

The claim for the receipt of nonservice-connected pension benefits for the years of 2009 and 2010 is denied.


REMAND

A date stamp indicates that the Veteran's service treatment records were received by VA in May 2008.  However, a June 15, 2008, "RTEX Referral" (VA Form 21094-1) states that the STR's "showed combined w/file but they got lost in transit somewhere."  

As a result, they were not available for review by the RO at the time of an October 2008 rating decision, when it was noted that "your service treatment records [were] not available for review."  

The October 2008 rating decision denied the claims of service connection for right hip osteoarthritis, left hip osteoarthritis, low back degenerative joint disease, and a left Achilles tendon condition, without consideration of the Veteran's service treatment records.  

The RO provided notice of the rating decision in October 2008, and the Veteran did not submit a Notice of Disagreement within one year.  Thus, generally, the October 2008 rating decision would be final and new and material evidence would be required to reopen the claims.  See 38 U.S.C.A. § 7105.

However, an October 2010 Statement of the Case issued in connection with the current appeal indicates that the Veteran's service treatment records had become available for review since the time of the October 2008 denial of his claims.  

The service treatment records are relevant in that they contain service separation examination and medical history reports (although, as will be discussed, they may not be complete, as they do not contain service entrance examination reports).  Since relevant official service department records are now available for review since the time of the October 2008 denial, readjudication of the October 2008 claim is required, and there is no requirement that new and material evidence be received to reopen the claims.  See 38 C.F.R. § 3.156(c) (new and material evidence-service department records).  

In a March 2011 written statement, the Veteran requested that the RO contact his father, who was noted to be elderly and blind, so that they could interview him by phone regarding the Veteran's spinal meningitis and surgery and quarantine.  

Thus, the RO should seek to assist the Veteran in development of his claims for service connection by contacting his father and eliciting his personal knowledge as to these matters.  See 38 U.S.C.A. § 5103A(a)-(c).

The Veteran also requested that the RO obtain additional Social Security Administration (SSA) records, including medical evidence obtained in what would appear to be an SSA Continuing Disability Review (CDR), a determination as to whether he continued to have current disability as defined by the SSA.  

In particular, the Veteran wrote in May 2008 that he wished VA to obtain from SSA records from 2006 to the present that were used to "verify my medical conditions to this present time," specifically, his low back and both hips.  

However, the Board has reviewed the records in the paper claims file and on the CD sent to VA by SSA, and the records obtained from SSA were another copy of his original disability claims file, dated only through April 2006, and not the medical evidence pertaining to the CDR.  

The RO should seek to obtain from SSA the records and adjudications in its possession pertaining to Continuing Disability Review from 2006 through at least 2008.  See 38 U.S.C.A. § 5103A(a)-(c).    

The Board notes that the service treatment records associated with the claims file do not include a report of the Veteran's service entrance examination.  As result, the Board finds a further search for all available service treatment records is warranted.  See 38 U.S.C.A. § 5103A(a)-(c).

On remand, the RO should seek to obtain any additional relevant records of VA or private treatment.  See 38 U.S.C.A. § 5103A(a)-(c).

Accordingly, these remaining matters are REMANDED for the following action:

1.  The RO should take appropriate action to contact the Veteran in order request that he identify all treatment rendered by VA and non-VA health care providers for the claimed right hip, left hip, low back and Achilles tendon condition since.  

After obtaining any appropriate authorizations for release of medical information, the RO should seek to obtain copies of any potentially relevant and available records that have not been previously received from each health care provider identified by the Veteran.  

The Veteran should also be advised that with respect to private medical evidence he may obtain any treatment records or other medical evidence on his own and submit it to the RO.

2.  The RO also should take all indicated action to attempt to obtain any additional service treatment records, particularly to include the Veteran's service entrance examination report and service entrance report of medical history.  

3.  In a March 2011 written statement, the Veteran requested that the RO contact his father so that he could be interviewed regarding the Veteran's spinal meningitis and surgery and quarantine.  The RO should seek to assist the Veteran in development of his claims for service connection by contacting his father and eliciting his personal knowledge as to these matters or any other matters relevant to the Veteran's claims.  See 38 U.S.C.A. § 5103A(a)-(c).

4.  Thereafter, the RO should review the claims file and ensure that no other notification or development action, in addition to that directed above, is required.  This should include a determination whether a VA compensation examination is required for a determination on the merits of any claim on appeal.  See 38 U.S.C.A. § 5103A(d). 

5.  After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.   

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs