Citation Nr: 1315274 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-43 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from January 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel Board hearing before the undersigned Veterans' Law Judge in March 2013. A transcript of that hearing is on file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the VLJ discussed the components necessary to substantiate and support a claim for nonservice-connected pension benefits. The Veteran was assisted at the hearing by an accredited representative. The representative and the VLJ asked questions to draw out information relating to type and manifestations of the Veteran's nonservice-connected disabilities. Additional evidence that might assist in substantiating the claim was identified by the Veteran and will be sought in this Remand. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). A May 2013 review of the Virtual VA paperless claims processing system reveals no additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is permanently and totally disabled as a result of his nonservice-connected disabilities. A review of the record reflects that it has been several years since the case was last adjudicated in September 2009. At that time, the Veteran's nonservice-connected disabilities were assessed to include: back pain due to degenerative disease - considered 10 percent disabling; hand pain with tenderness considered 10 percent disabling; a mood disorder considered 30 percent disabling, and dysphagia and hyperlipidemia considered noncompensably disabling. The RO indicated that the Veteran's aforementioned disabilities combined for a total evaluation of 40 percent. In the September 2009 adjudication, the RO mentioned that during the course of a hearing held at the RO in September 2009 the Veteran indicated that he had no income and no medical expenses. It was also noted that he had 10 years of education and had last worked in 2004 as a trash collector. The Veteran testified to the effect that he was living on a ranch in Oregon and working as a caretaker. It was noted that all of his treatment had been through the VAMC in Sepulveda, CA. During a travel Board hearing held in March 2013, the Veteran indicated that he had been treated for back problems with shots by VA during the prior two years or so. He also mentioned having additional medical conditions described as tinnitus, hearing loss, a pulmonary/respiratory condition, and right foot pain. He also described having symptoms of flashbacks and reported that these were treated by the VAMC in Sepulveda, CA. He indicated that he had been coming to VA for treatment since 2007. With regard to the Veteran's claim for nonservice-connected pension, the Board finds that a remand is required. The law authorizes the payment of a nonservice-connected disability pension to a wartime Veteran who has the requisite service and who is permanently and totally disabled. Generally, basic entitlement exists if a Veteran: (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23. 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. § 3.3(a)(3). Eligibility for nonservice-connected disability pension is first dependent upon the Veteran meeting threshold service requirements of 38 U.S.C.A. § 1521. Under that section, a Veteran meets the service requirements if the Veteran served in the active military, naval, or air service (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j). The term "period of war" is currently defined by statute to include service during the Vietnam era, from February 28, 1961 to May 7, 1975, for veterans serving in Vietnam, and in all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964, and ending on May 7, 1975. 38 C.F.R. §§ 3.1(f); 3.2(f). Here, the Veteran's service personnel records show he served from t January 1968 to August 1969. As his period of active service included 90 days or more during the Vietnam era, he meets the threshold service requirements. See 38 U.S.C.A. §§ 101, 1521(j); 38 C.F.R. § 3.2. Provided, as here, these service requirements of section 1521(j) are met, a Veteran must also meet either a disability or an age requirement. 38 U.S.C.A. § 1513(a), 1521(a); 38 C.F.R. § 3.3(a)(3). The disability requirement is that a Veteran must be permanently and totally disabled from a nonservice-connected disability not the result of the Veteran's willful misconduct. 38 U.S.C.A. § 1521(a). For Veterans 65 years of age and older, the permanent-and-total-disability requirement under section 1521(a) is excluded. See 38 U.S.C.A. § 1513(a) Chandler v. Shinseki, 676 F.3d 1045 (Fed. Cir. 2012). In this case, the Veteran's service personnel records show that he was born in July 1948, so he is not yet 65 years old and must meet the permanent-and-total-disability requirement under section 1521(e). See 38 U.S.C.A. § 1513(a). A Veteran is considered to be permanently and totally disabled if he is: (1) a patient in a nursing home for long-term care because of a disability; or (2) disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from either (i) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or (ii) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 U.S.C.A. § 1502(a); 38 C.F.R. § 3.3(a)(3)(vi)(B); see also 38 C.F.R. § 3.340. However, in this case, the record does not show the Veteran is housed in a nursing home for long-term care because of a disability; nor is there any evidence of record that he has been adjudicated to be disabled by the Social Security Administration (SSA). To the contrary, in his October 2006 application for pension benefits, he denied being in a nursing home and stated that he did not receive any income in the form of SSA benefits. He, therefore, must meet the criteria under either section 1502(a)(3) or 1502(a)(4) to be eligible for nonservice-connected disability pension. For the purposes of pension cases, the U.S. Court of Appeals for Veterans Claims (Court) has provided an analytical framework for determining whether a Veteran is unemployable. See Talley v. Derwinski, 2 Vet. App. 282 (1992); Roberts v. Derwinski, 2 Vet. App. 387 (1992); Brown v. Derwinski, 2 Vet. App. 444 (1992). The holdings in these cases are to the combined effect that VA has a duty to ensure that an appropriate rating for each disability of record is assigned using the approach mandated by Schafrath v. Derwinski, 1 Vet. App. 589 (1991); that the "average person" and "unemployability" tests are both applied; and that if the benefit may not be awarded under the "average person" or "unemployability" tests, a determination is made as to whether there is entitlement to nonservice-connected disability pension on an extra-schedular basis. The average person (or objective) test is rooted in 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15 and mandates that total disability will be found to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, provided that the impairment is reasonably certain to continue throughout the life of the disabled person. The unemployability (or subjective) test arises from 38 U.S.C.A. § 1521(a) and 38 C.F.R. §§ 3.321(b)(2), and mandates that where it is shown that the Veteran's disabilities meet the percentage requirements of 38 C.F.R. § 4.16, and it is shown that they are permanent in nature, a determination should be made whether such disabilities render him or her incapable of substantially gainful employment. If so, the Veteran again meets the requirements of the law for the benefit at issue. To meet the percentage requirements of 38 C.F.R. § 4.16, the Veteran must suffer from one disability ratable at 60 percent or more, or two or more disabilities where one of the disabilities is ratable at 40 percent or more, and the combined rating of all disabilities is 70 percent or more. If the Veteran does not meet either the "average person" or the "unemployability" tests, a determination is required as to whether the Veteran should be granted entitlement to nonservice-connected disability pension on an extraschedular basis, pursuant to the provisions of 38 C.F.R. § 3.321(b)(2), on the basis that he or she is unemployable by virtue of age, occupational background or other related factors. The Board has carefully reviewed the Veteran's claim of entitlement to nonservice-connected pension benefits, but finds that the record is not sufficiently developed to ensure an informed decision. 38 C.F.R. § 19.9. In this regard. it does not appear that the Veteran has ever been afforded a comprehensive evaluation, pertaining to all of his claimed nonservice-connected disabilities, for purposes of determining whether he is entitled to a nonservice-connected pension. Therefore, one will be scheduled pursuant to this Remand. In addition, the only medical/treatment records specifically identified in this case were VA records. In his 2013, hearing testimony, the Veteran indicated that he had been treated by VA since 2007. The file includes VA records dated from October 2006 to May 2009. Hence, it appears that more recent VA records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the RO should obtain all outstanding, pertinent VA records of evaluation and/or treatment of the Veteran from February 2009, forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his claim of entitlement to nonservice-connected pension benefits. Appropriate steps should be taken to obtain any identified records. 2. Obtain the Veteran's VA treatment and hospitalization records dated from May 2009 forward. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided under 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The RO should request that the Veteran provide an up-to-day report of his employment history throughout the appeal period, as well as all monthly income, monthly expenses, and assets. Ask the Veteran to provide information about the highest level of education he has attained, and any other special training he may have. 4. Thereafter, schedule the Veteran for all appropriate VA examinations to assess the severity of his claimed nonservice connected disabilities (to include but not limited to: back pain due to degenerative disease; hand pain with tenderness; a mood/psychiatric disorder; dysphagia; hyperlipidemia; tinnitus; hearing loss; a pulmonary/respiratory condition; and right foot pain); the permanence of each of these disabilities, and their impact on his ability to obtain and maintain substantially gainful employment. With respect to the Veteran's employability, upon assessing the severity and permanence of each of his disabilities, the examiner(s) should indicate whether the Veteran is (1) unemployable as a result of disability reasonably certain to continue throughout his lifetime or (2) permanently disabled so as to render it impossible for the average person to follow a substantially gainful occupation. The examiner(s) must discuss the rationale of each opinion, whether favorable or unfavorable, if necessary citing to specific evidence supporting or against each claim. To facilitate making these important determinations, it is absolutely imperative that the examiner(s) have the opportunity to review the evidence in the claims file, including a complete copy of this remand, for the pertinent medical and other history. The Veteran is hereby advised that failure to cooperate in the development of his claim, such as by not reporting for these additional VA examinations, without good cause, may have adverse consequences on his pending claim. 38 C.F.R. § 3.655. 5. Thereafter, readjudicate the issue of entitlement to nonservice-connected pension benefits. If the benefit sought on appeal is not granted in full, the RO must furnish a supplemental statement of the case, and the Veteran should be provided an opportunity to respond in accordance with applicable statutes and regulations. The case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).