Citation Nr: 1323285	
Decision Date: 07/22/13    Archive Date: 08/01/13

DOCKET NO.  07-28 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center 
in Wichita, Kansas


THE ISSUE

Entitlement to a permanent and total rating for nonservice-connected pension purposes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from August 1986 to March 1992.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Wichita, Kansas.  In April 2013, the Veteran's representative was provided an opportunity to submit a written brief in support of the Veteran's claim.


FINDING OF FACT

The Veteran is not permanently and totally disabled due to a nonservice-connected disability not the result his willful misconduct.


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected pension benefits have not been met.  U.S.C.A. §§ 1110, 1131, 1521, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.301(b), 4.17 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).  

The RO's June 2011 letter advised the Veteran of the notice requirements relating to his claim seeking nonservice-connected pension benefits.  See Quartuccio v. 

Principi, 16 Vet. App. 183, 187 (2002); see also See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (finding that a timing error may be cured by a new notification letter followed by a readjudication of the claim).  The RO's June 2006 and June 2011 letters also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Accordingly, the RO satisfied the notice requirements with respect to the issue on appeal.  

VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim, including obtaining VA and private treatment records.  A medical examination is not required as the Veteran has failed to provide or identify any evidence indicating that he is currently unemployable as a result of any disability.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In May 2011, the Board remanded this matter to the RO directing that the Veteran be provided adequate notice of the 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.  Quartuccio, 16 Vet. App. at 183.  In June 2011, the RO provided the Veteran with a proper notification letter concerning his claim.  Although the letter requested additional information and evidence from the Veteran, no response was received.  This failure to respond to the RO's letter was noted in the RO's January 2012 supplemental statement of the case.  Accordingly, the directives of the Board's May 2011 remand have been accomplished.  See Stegall v. West, 11 Vet. App. 268 (1998).  There is no indication that additional evidence relevant to the issue being addressed is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless.  

See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

A nonservice-connected disability pension is payable to a Veteran who served for 90 days or more during a period of war and is permanently and totally disabled due to nonservice-connected disability not the result of willful misconduct.  38 U.S.C.A. § 1521(a).  Permanent and total disability will be deemed to exist when an individual is unemployable as a result of disabilities that are reasonably certain to continue throughout the remainder of the life of the person.  38 U.S.C.A. § 1502 (West 2002). 

Total and permanent disability may be determined on the basis of the objective "average person" or subjective "unemployability" tests, or on an extraschedular basis.  38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16(a), 4.17 (2012); see Brown v. Derwinski, 2 Vet. App. 444 (1992) (providing an analytical framework for application in pension cases).  Under 38 C.F.R. § 4.15, permanent total disability occurs when there is a schedular rating total of 100 percent pursuant to the schedule of ratings or when one of the following conditions exist: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden.  A finding of permanent and total disability based solely on "objective" criteria requires rating each disability under the appropriate diagnostic code of the VA's Schedule for Rating Disabilities, to determine whether the Veteran has a combined 100 percent schedular evaluation for pension purposes.  See Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992).  
 
Under the "subjective" criteria a Veteran may establish permanent and total disability for pension purposes by establishing he has a lifetime impairment precluding employability.  38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. § 4.17.  This is accomplished by meeting the percentage requirements of 38 C.F.R. § 4.16, which set forth that total disability will be assigned when (1) there is one disability ratable at 60 percent or more; or (2) if there are two or more disabilities, at least one disability ratable at 40 percent or more, and sufficient additional disability to bring 

the combined rating to 70 percent or more.  When these percentages are met, a total disability will be assigned upon a showing the Veteran is unable to secure and follow substantially gainful employment by reason of his disability.  
 
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 of the rating schedule but has other factors which make him unemployable, a permanent and total disability rating for pension purposes may be granted, in an exceptional case, on an extra-schedular basis.  38 C.F.R. §§ 3.321 (b)(2), 4.17(c). 

Based upon a longitudinal review of the Veteran's claims file, the Board concludes that the Veteran is not permanently and totally disabled due to a nonservice connected disability not the result his willful misconduct.

The law provides that no compensation shall be paid for a disability that is a result of the Veteran's own willful misconduct.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.301(b).  Willful misconduct means an act involving conscious wrongdoing or known prohibited action.  It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.  38 C.F.R. 3.1(n) (2012).  

Post service records indicate that the Veteran was convicted on charges of indecent liberties with a child in 1990; and aggravated criminal sodomy, with a child less than 14 years old, in 1999.  As a result his second conviction, the Veteran remained incarcerated throughout most of his current appeal period from June 2000 to February 2012.   

A November 1991 intake evaluation noted that the Veteran acknowledged that he sexually fondled a 2 year-old child.  The Veteran reported feeling ashamed of the crime he committed, and readily admitted guilt.  As his incarceration is the result of acts done deliberately or intentionally with a wanton and reckless disregard of its 

probable consequences, disability pension benefits for unemployability caused by his incarceration can not be awarded.  38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. § 3.301(b).  

The evidence of record does not demonstrate, under either objective or subjective testing, that the Veteran is permanently and totally disabled due to a nonservice-connected disability not the result his willful misconduct.  Although he is shown to have been diagnosed and treated for pedophilia and a personality disorder, not otherwise specified, with compulsive antisocial, narcissistic features, these disabilities are not shown to render him unemployable at any time during the course of this appeal.  Specifically, a December 2004 private treatment report noted that the Veteran did not require mental health treatment, was capable of independent living, and that there were no limitations on his employment.  

On his November 2005 claims form, the Veteran indicated that he was employed for more than four years from June 1995 to August 1999 as a "dyno" operator in the time prior to his most recent incarceration beginning in June 2000.  He also indicated that he completed high school and graduated from a diesel engine repair school in 1994-1995, which required 1080 hours of training.  

Although the RO's June 2011 letter requested that the Veteran identify evidence and information relating to his inability to secure employment, no response was subsequently received from the Veteran.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.").  This failure to provide additional evidence in support of his claim noted in the RO's January 2012 supplemental statement of the case.  

The Board finds that the preponderance of the evidence of record shows that the Veteran is not permanently and totally disabled from nonservice-connected disability which is not the result of his willful misconduct.  38 U.S.C.A. § 1521(a).  

Accordingly, the Board finds that the Veteran does not meet the requirements for nonservice-connected pension, and the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Nonservice-connected pension benefits are denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs