Citation Nr: 1327121 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 08-00 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective earlier than June 15, 2006, for the grant of nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to September 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision by the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA) that granted entitlement to nonservice-connected pension effective June 15, 2006. The Veteran was scheduled for a hearing before a Veterans Law Judge in September 2011; however, he did not appear. Accordingly, the request for a hearing is considered withdrawn. The Board remanded the claim in March 2012 for further development and consideration. FINDINGS OF FACT 1. On September 26, 1993, the RO received the Veteran's claim for entitlement to non-service-connected disability pension benefits, and the RO subsequently granted these benefits effective from June 15, 2006. 2. The Veteran's Social Security Administration (SSA) records show that he was employed from May 1995 to August 1, 2006; SSA found that the Veteran became disabled effective from August 1, 2006. 3. No medical treatment or examination reports demonstrate permanent and total disability prior to June 15, 2006. CONCLUSION OF LAW The effective date for the grant of entitlement to non-service-connected disability pension benefits may be no earlier than June 15, 2006. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating a claim for VA benefits. 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). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The notice should address all elements of the claim, including the "downstream" disability rating and effective date elements. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for non-service-connected pension benefits was granted. He was not provided with pre-adjudication notice regarding this claim. Regardless, in cases, as here, where the claim has been granted and an effective date assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose the notice was intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), instead of issuing an additional notice letter in this situation concerning the "downstream" effective date element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case if the disagreement is not resolved. The RO sent the Veteran this required statement of the case in November 2007, addressing the "downstream" effective date element of his claim - citing the applicable statutes and regulations and discussing the reasons and bases for assigning the effective date. The Board also finds that all necessary development of the downstream earlier effective date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran. He submitted personal statements. He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. As noted below, the Veteran was granted SSA disability benefits, and VA has obtained the records corresponding to this grant of SSA benefits. The Board remanded the claim to obtain SSA and employment records. The Veteran was also provided 4 retrospective examinations and opinions regarding his employability. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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);Quartuccio v. Principi, supra. II. Analysis On September 26, 1993, the RO received the Veteran's claim for entitlement to non-service-connected disability pension benefits, At the time of his September 1993 claim, he reported not having worked since 1987 due to his 'nerves' and hearing problems. His claim was initially denied in an October 1994 rating decision. He appealed that rating decision to the Board which, in decisions issued in September 1998 and October 2003, remanded the claim for further development. The RO ultimately granted the claim in a September 2006 rating decision and assigned an effective date of June 15, 2006, the date the Veteran reported that he last worked. The Veteran's primary nonservice-connected disabilities that have been noted in the record are generalized anxiety, hearing loss, tinnitus, constipation, anemia; cervical, thoracic, and lumbar spine degenerative disc disease; diabetes mellitus, hypertension, diabetic retinopathy, diabetic foot ulcers, erectile dysfunction, peripheral neuropathy of the lower extremities, esophagitis and gastritis, tinea pedis, and chronic kidney disease associated with the diabetes. On VA examinations provided in June and July 1999, VA examiners opined that the Veteran's nonservice-connected disabilities did not preclude employment, but in an August 2003 remand, the Board found that all of his then-present disabilities had not been considered. The Veteran was afforded a general VA examination in May 2004, whereupon it was again determined that his respective nonservice-connected disabilities did not preclude employment. However, the Board's review of the May 2004 general examination reveals additional disabilities of gastrointestinal reflux disease, (GERD), gastritis, and tinea pedis that were not taken into consideration by the VA examiner, despite there being evidence of diagnoses and treatment for those disabilities in the VA records. The Veteran's claims file contains his Form SSA-3369, Work History Report, which shows that he was employed from May 1995 to August 1, 2006. The Veteran is in receipt of social security income (SSI) with a disability onset date shown as August 1, 2006. A September 2012, VA general pension examination report concluded that the Veteran's diabetic retinopathy did not render the Veteran unemployable as the Veteran's vision continued to be good, his visual acuity was 20/30 in the right eye, and 20/25 in the left eye. A September 2012, VA clinical psychologist examination report concluded that the Veteran was employable from 1999 to 2006. The psychologist indicated that the Veteran had 13 years of education and 3 years of college. He held numerous jobs during that period, was able to perform activities of daily living, responded favorably to psychiatric treatment, was required psychiatric hospitalization, and cared for his mentally ill brother and father. An October 2012 VA mental disorders examination report concluded that the Veteran began receiving mental health treatment in 2002 and responded favorably to counseling and treatment. A November 2012 VA audiological examination report concluded that the Veteran's hearing did not render him unemployable. VA 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. 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 (MAPR) 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). 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. Generally, the effective date of an award of pension will be the date of receipt of the claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. An award of a disability pension may not be effective prior to the date entitlement arose. 38 C.F.R. § 3.400(b)(1). The Veteran seeks entitlement to an effective earlier than June 15, 2006, for the grant of nonservice-connected disability pension. He contends that the proper effective date is in August 2005. He essentially contends that he was unable to work at that time due to his medical conditions. As noted above, the Veteran was gainfully employed prior to August 2006. See Faust v. West, 13 Vet. App. 342 (2000). In addition, none of the medical examinations of record indicted that he was unemployable prior to June 15, 2006. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran was unemployable due to his medical conditions, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, entitlement to an effective date prior to June 15, 2006, for the grant of nonservice-connected pension benefits is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply. See 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An effective date prior to June 15, 2006, for the grant of nonservice-connected pension benefits is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs