Citation Nr: 1329641 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-24 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2010, the Board remanded this case for further development. The issue of entitlement to service connection for a right wrist disorder been raised by the record, including in the Veteran's December 2006 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The portion of the Veteran's nonservice- connected pension claim relating to whether his income is excessive is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served honorably for more than 90 days during a period of war. 2. The Veteran was born in March 1946, is now 67 years of age and has not been employed for many years. CONCLUSION OF LAW Nonservice-connected pension benefits are warranted. 38 U.S.C.A. §§ 1502, 1513, 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.314, 3.321, 3.342(a), 4.15, 4.16, 4.17 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to a permanent and total disability rating for nonservice- connected pension purposes, and remands that part of his nonservice-connected pension claim relating to whether his income is excessive. As such, no discussion of VA's duty to notify and assist is necessary. The Veteran seeks nonservice-connected pension benefits. Under VA regulations, the payment of nonservice-connected pension benefits is provided to Veterans who are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, but only where the Veteran has the requisite active wartime service. 38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). In order for pension benefits to be granted, the evidence must generally demonstrate three things: (1) the Veteran meets the service requirements; (2) he is totally and permanently disabled by age or disability; and (3) his income and net worth do not exceed the amounts specified by law. A Veteran will be considered permanently and totally disabled if he is a patient in a nursing home for long-term care, is disabled as determined by Social Security, is unemployable as a result of disability reasonably certain to continue throughout the life of the person, is suffering from 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 where the Veteran has any disease or disorder determined by VA to be of such a nature as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3). 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; see Brown v. Derwinski, 2 Vet. App. 444 (1992) (provides 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. 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 has a lifetime impairment precluding him from securing and following substantially gainful employment. 38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. § 4.17. This is accomplished by proving the Veteran meets the percentage requirements of 38 C.F.R. § 4.16. Under 38 C.F.R. § 4.16, 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 reasons of his disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the Veteran's disabilities render him or her unemployable. 38 C.F.R. § 4.17. 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, the Adjudication Officer or in some cases the rating board can approve a permanent and total disability rating for pension purposes on an extraschedular basis. The Adjudication Officer or rating board will examine factors such as whether the Veteran is unemployable by reason of his disability(ies), age, occupational background and other related factors. 38 C.F.R. § 3.321(b)(2). Alternatively, the Veteran may be eligible for pension benefits based upon his age. Under 38 U.S.C.A. § 1513, pension benefits are to be paid to Veterans of a period of war who are at least 65 years old and meet the service requirements of 38 U.S.C.A. § 1521(j) and income and net worth requirements. If the Veteran is entitled to pension benefits under both 38 U.S.C.A. § 1513 and 38 U.S.C.A. § 1521, pension shall be paid to the Veteran only under 38 U.S.C.A. § 1521. See 38 U.S.C.A. § 1513(b). The Veteran's Form DD-214 shows that he served on active duty from December 1965 to August 1969, during the Vietnam era. Therefore, he has the required period of wartime service. The evidence also reflects the Veteran is now 67 years of age and has not been employed for many years. As such, entitlement to pension benefits under 38 U.S.C.A. § 1513 and 38 C.F.R. § 3.342 is warranted. ORDER Entitlement to a permanent and total disability rating for nonservice-connected pension purposes is granted; to this extent only, the appeal is granted. REMAND In the above decision, the Board found that the Veteran is permanently and totally disabled for pension purposes; however, entitlement to pension is contingent upon him meeting the income and net worth requirements of 38 C.F.R. § 3.23 and 38 C.F.R. § 3.274. The most recently filed VA forms pertaining to the Veteran's income, Form 21-8940 and Form 21-527, are dated June 2006 and December 2006, respectively. In Form 21-8940, the Veteran indicated that he had no total earned income for the past 12 months. In Form 21-527, he indicated that he has no gross monthly income. Additionally, the Veteran reported in a February 2011 letter that "I did start my Social Security at the age of 62 which pays at this time $695." The Board calculates that the Veteran reached the age of 62 in 2008. No updated evidence as to the Veteran's annual income or net worth has been associated with the claims file. Although the questions of basic eligibility and the existence of a permanent and total disability rating for nonservice- connected pension purposes have been adjudicated, the Board finds that because income is a component of the Veteran's pension claim, VA must adjudicate that issue. Accordingly, the Veteran must be asked to submit records showing his current income and net worth. 38 C.F.R. §§ 3.3, 3.23 (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide a detailed summary of his current household income and expenses, and as well summaries of his income and expenses for all years within the effective date of the grant of entitlement to nonservice-connected pension benefits assigned by the AOJ. Send the Veteran copies of VA Form 21-0516-1, Improved Pension Eligibility Verification Report, for the purpose of providing this information. 2. After providing the Veteran adequate time to respond, and after conducting any further development deemed warranted, readjudicate the appeal. The RO must specifically consider the Veteran's basic income eligibility for entitlement to nonservice-connected pension benefits. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs