Citation Nr: 1600699 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 13-10 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to VA nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1977, and from November 1980 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the VA Regional Office (RO) in St. Paul, Minnesota. The claim was subsequently transferred to the RO in Waco, Texas. The Veteran originally requested a Travel Board hearing in his April 2013 substantive appeal; however, in statements dated September 2014 and January 2015, the Veteran withdrew his request for a Board hearing. The hearing request is therefore deemed withdrawn. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A claim for a permanent and total disability rating for nonservice-connected disability pension purposes is determined based on the total impairment caused by all nonservice-connected disabilities not the result of the Veteran's willful misconduct. See 38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. §§ 3.321(b)(2), 3.340, 3.342(a), 4.17; Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992) (stating that before a total and permanent disability rating can be awarded, an evaluation must be performed to determine the percentage of impairment caused by each disability). The Veteran's nonservice-connected disabilities are: a low back condition, hearing loss (bilateral), left eyelids cysts, major depressive disorder, alcohol dependence, and gastroesophageal reflux disease (GERD). Among these, only the GERD has been assigned a percentage rating (10 percent). Significantly, service connection for the left eyelid cysts was denied because there was "No Diagnosis," and service connection for the alcohol dependence was denied due to "Willful Misconduct." Service connection has previously been granted for tinnitus, a fracture of the right fifth metacarpal, right upper and lower eyelid cysts, tinea pedis, and acne vulgaris and acne conclobata of the trunk. In this case, the Veteran filed his claim for nonservice-connected pension benefits, claiming in his April 2013 substantive appeal that "My request for Non-Service Connected Pension is based upon right eye blindness, degenerative disc disease, and mental health issues." He was afforded a VA eye examination in September 2009, a general medical examination in November 2012, and a hearing loss examination in May 2015. However, the RO did not assign the percentage of impairment caused by each disability. Therefore, examinations and opinions by a qualified examiner(s) must be obtained in order to assign the current percentage of impairment caused by each nonservice-connected disability. Additionally, remand is required for VA to obtain the Veteran's pertinent SSA records. Golz v. Shinseki, 590 F. 3d 1317 (2010). Specifically, a May 2012 record from the SSA National Records Center shows that SSA sent VA a copy of the Veteran's records via compact disc (CD). However, only partial records appear in the electronic claims file. Further, one of these records-dated February 22, 2012-documents that "As of September 2011 you meet all the rules to be eligible for SSI [Supplemental Security Income] based on being disabled." However, in the February 2013 Statement of the Case (SOC), the AOJ stated that "Your Social Security Administration records were reviewed. There was no evidence showing your disabilities prevent working." On remand, the AOJ should make as many attempts as are necessary to obtain the Veteran's additional SSA records; if those records are located on a CD, then the contents thereof should be added to the electronic claims file. Thereafter, the AOJ should explain whether the SSA records show that the Veteran's disabilities prevent him from working. If the AOJ finds that the SSA records do not show that the Veteran is prevented from working, then it should explain the significance of the February 22, 2012 SSA finding. As the appeal is being remanded for development, the AOJ should ask the Veteran to identify any additional, pertinent medical records that he has received for his nonservice-connected disabilities, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records should added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his nonservice-connected disabilities that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the severity of his nonservice-connected disabilities and their impact on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 3. After associating any pertinent, outstanding records with the claims folder, arrange for the Veteran to undergo a VA pension examination to determine the nature, extent and severity of all disabilities found to be present. All indicated testing should be conducted. The Veteran's claims folder, including a copy of this Remand, should be available to and reviewed in conjunction with the examination(s). The examiner must describe the impact of the Veteran's disabilities on his industrial adaptability. Any diagnosed disorder must be evaluated for the specific purpose of assessing their relative degree of industrial impairment, in light of the Veteran's medical and vocational history. The examiner should describe what types of employment activities are limited because of the disorders and whether sedentary employment is feasible. A complete rationale should be given for all opinions and conclusions expressed. 4. Make as many attempts as are necessary to obtain the Veteran's additional SSA records. If those records are located on a CD, then the contents thereof should be added to the electronic claims file. Thereafter, the AOJ should explain whether the SSA records show that the Veteran's disabilities prevent him from working. If the AOJ finds that the SSA records do not show that the Veteran is prevented from working, then it should explain the significance of the February 22, 2012 SSA finding that, "As of September 2011 you meet all the rules to be eligible for SSI based on being disabled." 5. Then readjudicate the appeal. If the claim remains denied, issue a supplemental statement of the case to the Veteran and provide an opportunity to respond before the case is returned to the Board. The Veteran 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).