Citation Nr: 1418875 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 11-15 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Basic eligibility for Department of Veterans Affairs (VA) nonservice-connected pension benefits. 2. Basic income eligibility for VA nonservice-connected pension benefits. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). 5. Entitlement to service connection for a back disability. 6. Entitlement to service connection for a neck disability. 7. Entitlement to service connection for bilateral knee disabilities. 8. Entitlement to service connection for bilateral ankle disabilities. 9. Entitlement to service connection for bilateral shoulder disabilities. 10. Entitlement to service connection for a traumatic brain injury. 11. Entitlement to an initial higher (compensable) rating for right ear hearing loss. REPRESENTATION Appellant represented by: Jan Dils, Attorney ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from October 1996 to November 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that denied a claim for basic eligibility for nonservice-connected benefits. An April 2012 RO decision granted service connection and a noncompensable rating for right ear hearing loss, effective February 16, 2012; reopened and denied the Veteran's claim for entitlement to service connection for left ear hearing loss on a de novo basis; and denied service connection for PTSD, a back disability, a neck disability, bilateral knee disabilities, bilateral ankle disabilities, bilateral shoulder disabilities, and a traumatic brain injury. The issues have been recharacterized to comport with the evidence of record. The issue of basic income eligibility for VA nonservice-connected pension benefits, as well as the issues of whether new and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss; entitlement to service connection for PTSD, a back disability, a neck disability, bilateral knee disabilities, bilateral ankle disabilities, bilateral shoulder disabilities, and a traumatic brain injury; and entitlement to an initial higher (compensable) rating for right ear hearing loss, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the purpose of establishing entitlement to VA nonservice-connected pension, the Veteran served in the active military, naval, or air service, for 90 days or more during a period of war. He currently has a compensable service-connected disability. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected pension benefits have been met. 38 U.S.C.A §§ 101(2), 101(24), 1502, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.12, 3.40, 3.203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of basic eligibility for VA nonservice-connected pension benefits. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Veterans are entitled to VA nonservice-connected pension benefits if they are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, provided that they have the requisite service. 38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b) (2013). A veteran meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 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); 38 C.F.R. § 3.3(a). The term "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). "Active military, naval, and air service" includes active duty. In turn, "active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). The "Armed Forces" consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980, and any other person (officer as well as enlisted) who enters on active duty after October 16, 1981, and who has not previously completed a continuous period of active duty of at least 24 months or been discharged, or released from active duty under 10 U.S.C. § 1171 (early out), who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code or under any law administered by VA based on that period of service. 38 C.F.R. § 3.12a. The term "minimum period of active duty" means, for the purposes of this section, the shorter of the following periods: (1) 24 months of continuous active duty (non-duty periods that are excludable in determining VA benefit entitlement (e.g., see 38 C.F.R. § 3.15) are not considered as a break in service for continuity purposes but are to be subtracted from total time served); or (2) the full period for which a person was called or ordered to active duty. 38 C.F.R. § 3.12a(a). The minimum period of active duty requirement does not apply: (1) to a person who is discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); (2) to a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) to a person with a compensable service-connected disability; (4) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) to benefits under chapter 19 of title 38, United States Code. See 38 C.F.R. § 3.12a (d). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In December 2004, the Veteran filed a claim for entitlement to VA non-service-connected pension benefits. In a May 2005 rating decision, the RO granted entitlement to a permanent and total disability rating for VA nonservice-connected pension purposes, effective December 30, 2004. However, also in May 2005, the RO indicated that, although the Veteran was found medically entitled to nonservice-connected pension benefits, the claim was denied because the Veteran did not submit a VA Form 21-527 Income-Net Worth and Employment Statement. In May 2010, the Veteran filed a new claim for entitlement to VA non-service-connected pension benefits. In a June 2010 decision, the RO denied the Veteran's claim for entitlement to VA nonservice-connected pension benefits. The RO indicated that the evidence showed that the Veteran served from October 1996 to November 1997, which was less than the minimum active duty requirements for a disability pension. The RO maintained that, for Veterans who served on active duty during a wartime period of service after September 7, 1980, a disability pension was only payable if they served the shorter of either twenty-four months of continuous active duty or if they completed a full period for which the Veteran was called or ordered to active duty. In an April 2012 rating decision, the RO granted service connection and a noncompensable rating for right ear hearing loss, and granted service connection and a 10 percent rating for tinnitus, both effective February 12, 2012. The RO denied the Veteran's claim for VA nonservice-connected pension benefits on the basis that Veteran's period of service from October 1996 to November 1997 was less than the minimum active duty requirements for a disability pension. The RO apparently found that the Veteran did not serve the shorter of either twenty-four months of continuous active duty, and/or that he did not complete of a full period for which the Veteran was called or ordered to active duty. The threshold question in a pension case is whether the Veteran has the requisite period of service. If that issue is answered in the affirmative, the additional issues of permanent and total disability and net worth and income requirements will be addressed. In this case, the RO has already found that the Veteran has a permanent and total disability for VA nonservice-connected pension purposes. In terms of whether the Veteran has the requisite service, his DD Form 214 indicates that he served on active duty from October 1996 to November 1997. Therefore, the Veteran served during the wartime period of the Persian Gulf War for more than 90 days, establishing the basic criteria for wartime service. 38 C.F.R. § 3.3. The RO found that additional provisions apply to establish the minimum service needed for nonservice-connected pension benefits. The RO indicated that the Veteran's service was also covered by the provisions of 38 C.F.R. § 3.12a, and concluded that the Veteran did not serve the minimum period of active duty, nor did he complete his term of active duty service. However, the provisions of 38 C.F.R. § 3.12a also include exceptions to the requirement for a minimum period of active duty. The Veteran presently has a compensable service-connected disability. He is currently service-connected for tinnitus, rated at 10 percent. Therefore, the Veteran is clearly covered by the exception listed in 38 C.F.R. § 3.12a(d)(3). The Veteran DD Form 214 shows that he served on active duty from October 1996 to November 1997, during the wartime period of the Persian Gulf War. He currently has a compensable service-connected disability. Therefore, the Board finds that the Veteran has established the requisite service for nonservice-connected benefits. As such, the Veteran has met the criteria for basic eligibility for VA nonservice-connected pension benefits. ORDER Basic eligibility for VA nonservice-connected benefits is granted. REMAND The Board has found that the Veteran meets the basic eligibility requirements for VA nonservice-connected pension benefits. In a May 2005 rating decision, the RO has already concluded that the Veteran is entitled to a permanent and total disability rating for VA nonservice-connected pension purposes. However, entitlement to VA nonservice-connected pension benefits is contingent upon the Veteran meeting the net worth requirements of 38 C.F.R. § 3.23 and 38 C.F.R. § 3.274. The Veteran has not provided evidence as to his annual income or net worth. Although the questions of basic eligibility, and the existence of a permanent and total disability rating for VA nonservice-connected pension purposes, have already been adjudicated, 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 (2013). Additionally, an April 2012 RO decision granted service connection and a noncompensable rating for right ear hearing loss, effective February 16, 2012. By this decision, the RO also reopened and denied the Veteran's claim for entitlement to service connection for left ear hearing loss on a de novo basis. The RO further denied service connection for PTSD, a back disability, a neck disability, bilateral knee disabilities, bilateral ankle disabilities, bilateral shoulder disabilities, and a traumatic brain injury. In an October 2012 statement, the Veteran's representative expressed disagreement with the rating assigned for the Veteran's service-connected right ear hearing loss, and also expressed disagreement as to the denial of his claims for service connection. The RO has not issued a statement of the case as to the issues of whether new and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss; the issues of entitlement to service connection for PTSD, a back disability, a neck disability, bilateral knee disabilities, bilateral ankle disabilities, bilateral shoulder disabilities, and a traumatic brain injury; and the issue of entitlement to an initial higher (compensable) rating for right ear hearing loss. Under the circumstances, the Board has no discretion and is obliged to remand these issues to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, these issues are REMANDED for the following: 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. Issue the Veteran a statement of the case as to the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss; the issues of entitlement to service connection for PTSD, a back disability, a neck disability, bilateral knee disabilities, bilateral ankle disabilities, bilateral shoulder disabilities, and a traumatic brain injury; and the issue of entitlement to an initial higher (compensable) rating for right ear hearing loss, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on these issues. 3. Adjudicate the issue of the Veteran's basic income eligibility for VA nonservice-connected pension benefits. If the benefit sought is denied, issues a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2013). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs