Citation Nr: 1326814 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-18 501A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to non-service-connected pension benefits. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). On his VA Form 9, the Veteran requested a hearing before the Board. The hearing was scheduled for April 2, 2012, at VA's central office in Washington, D.C.; however, the Veteran did not report for the hearing, and no request for postponement was received and granted prior to the hearing date. Under 38 C.F.R. § 20.704(d) (2012), when a veteran fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn. Therefore, this case will be processed as though the request for a hearing was withdrawn. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran is currently employed. CONCLUSION OF LAW The criteria for an award of a permanent and total disability rating for non-service-connected pension purposes have not been met. 38 U.S.C.A. §§ 1155, 1502, 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.321, 3.340, 3.342, 4.15, 4.16, 4.17 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that VA shall pay to each veteran of a period of war who meets the service requirements of this section (as prescribed in subsection (j) of this section) and who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct, pension at the rate prescribed by this section. 38 U.S.C.A. § 1521(a). A veteran meets the service requirements of this section if such 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 defined by statute. In the case of a veteran who served in the Republic of Vietnam, the Vietnam War includes the period from February 28, 1961 to May 7, 1975. For all other veterans, the Vietnam era began August 5, 1964, and ended May 7, 1975. 38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2(f)(i). 'Permanent and total disability' will be held to exist when an individual is unemployable as a result of disabilities that are reasonably certain to last throughout the remainder of that person's life. 38 C.F.R. §§ 3.340(b), 4.15. Pension cases must be adjudicated applying both 'objective' and 'subjective' standards. Talley v. Derwinski, 2 Vet. App. 282, 285 (1992). A veteran may establish that he or she has a lifetime impairment which is sufficient to render it impossible for the 'average person' to follow a substantially gainful occupation. 38 U.S.C.A. § 1502(a)(1); 38 C.F.R. § 4.15. A veteran who suffers the permanent loss of use of both hands and both feet, or of one hand and one foot, or of the sight of both eyes, or becomes permanently helpless or permanently bedridden, will be considered permanently and totally disabled for pension purposes. 38 C.F.R. § 4.15. VA will consider a veteran to be permanently and totally disabled if he is a patient in a nursing home for long-term care due to disability, or determined to be disabled for Social Security Administration (SSA) purposes. Pub. L. No. 107-103, Section 206(a), 115 Stat. 990 (Dec. 27, 2001). Otherwise, 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 rating for pension purposes. Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). Permanent and total disability evaluations for pension purposes will be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary, or familial conditions, as well as for disabilities that require indefinite periods of hospitalization. 38 C.F.R. § 3.342(b). Alternatively, a veteran may establish permanent and total disability for pension purposes even absent a combined 100 percent schedular evaluation by proving he or she has a lifetime impairment precluding him or her from securing and following substantially gainful employment. 38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. § 4.17. However, if there is only one such disability, it must be ratable at 60 percent or more; if there are two or more disabilities, there must 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. §§ 4.16(a), 4.17. Finally, even if a veteran's disability ratings fail to meet the aforementioned percentage standards, a permanent and total disability rating for pension purposes may be granted, in an exceptional case, on an extra-schedular basis, if the veteran is unemployable by reason of his or her disabilities, age, occupational background, and other related factors. 38 C.F.R. §§ 3.321(b)(2), 4.17(b). Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) (2012). While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In addition to the above, basic entitlement to non-service-connected pension exists if the Veteran's income is not in excess of the maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4). The pension rates are published in Appendix B of VA Manual M21-1 (M21-1), which is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21. Effective December 2007, the income limit for a Veteran with one dependent was $14,643.00. This amount was increased to $15,493.00, effective December 2008, to $16,051.00, effective December 2011, and to $16,324, effective December 2012. See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23. In determining annual income, all payments of any kind or from any source shall be counted as income during the 12-month annualization 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). Under 38 C.F.R. § 3.272, 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 5 percent of the maximum annual rate of improved pension. Income from SSA disability benefits is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Here, the Veteran's DD Form 214 reflects that he served on active duty from March 1969 to March 1971, including service in Vietnam. This period includes service during the Vietnam era. Accordingly, the Veteran "served for at least 90 days in a period of war," satisfying the service requirement for basic pension eligibility under 38 C.F.R. § 3.3. With respect to the permanent and total disability requirement, the Veteran does not contend, and the evidence does not reflect, that he has permanent loss of use of both hands or both feet, or of one hand and one foot, or of the sight of both eyes. In addition, the evidence does not reflect, and the Veteran does not contend, that he is permanently helpless or bedridden or that he is a patient in a nursing home for long-term care. Further, there is no indication that the Veteran is currently in receipt of SSA disability benefits for his non-service-connected disabilities. Indeed, on his VA Form 21-526, the Veteran indicated that he was claiming partial disability impairment due to his service-connected diabetes mellitus. In this regard, it if the Veteran is having problems with his service connected disability beyond the disability evaluation he current receives, he should file a claim for increased compensation for this disability, not for a VA pension. At this time, based on a review of the evidence, it does not appear that such claim is being raised. In addition to the Veteran's own statements that reflect he is claiming eligibility for pension based on a service-connected disability, he has consistently stated throughout the course of this appeal that he is currently employed. On his VA Form 21-526, he stated that he is self-employed as a physician. A June 2008 private treatment note indicates that he remained employed on a part-time basis. In his July 2009 notice of disagreement (NOD), he stated that he had lost one of his part-time jobs, which resulted in a considerable decrease in his income. Finally, on his June 2011 VA Form 9, the Veteran stated that he was "no longer making the salary that [he] used to make," and that his income had "considerably decreased." Thus, based on the Veteran's own statements, he is not unemployable, and, in fact, continues to work on a part-time basis. His statements weigh against his contention of permanent and total disability, and are highly probative. Moreover, there is no medical evidence of record indicating that the Veteran is unemployable. Further, his self-reported income at the time he filed his claim in December 2007 exceeded the maximum income limit for eligibility for pension. On his VA Form 21-526, he reported a monthly salary of $6,000 for himself, and $1,200 for his spouse. In addition, he reported Social Security income in the amount of $1,884 for himself, and $1,200 for his spouse. He also reported an additional $5,000 in monthly income, totaling $15,284.00. The income limit at the time, as noted above, was $14,643.00 (importantly, it does not appear that the Veteran included the amount he receives from the VA for his service connection disability, but this is not clear). In any event, even if the Veteran's salary has decreased since the time he filed his claim, he still does not meet the criteria for pension eligibility, as he remains employed. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely May 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for non-service-connected pension, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. In addition, the letter described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service private treatment records, and the Veteran's statements. A VA opinion or examination is not necessary in this case, nor would it assist the Veteran in the substantiation of his claim, as the claim is being denied on the basis that he is currently employed. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to non-service-connected pension benefits is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs