Citation Nr: 1636840 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 10-11 939 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the knees. 2. Entitlement to service connection for arthritis of the right knee. 3. Entitlement to service connection for arthritis of the left knee. 5. Entitlement to service connection for chronic low back disorder. 6. Entitlement to service connection for depression. 7. Whether the Veteran's countable income for 2006 was excessive for the receipt of nonservice-connected VA pension benefits. 8. Whether the Veteran's countable income for 2007 was excessive for the receipt of nonservice-connected VA pension benefits. 9. Whether the Veteran's countable income for 2008 was excessive for the receipt of nonservice-connected VA pension benefits. ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Roanoke, Virginia, Regional Office (RO), which reopened the Veteran's claims of entitlement to service connection for arthritis of the right knee, and arthritis of the left knee, but denied the underlying issues on the merits. That rating decision also denied service connection for chronic low back pain and service connection for depression. He perfected a timely appeal to that decision. Additionally, in a June 2011 decision, the Philadelphia, Pennsylvania ROIC terminated the Veteran's pension benefits effective July 1, 2006 due to excessive income. The issues of entitlement to service connection for arthritis of the knees are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 1992 decision, the Veteran's claim for entitlement to service connection for arthritis of both knees was denied. The Veteran was notified of the decision and his appellate rights, but did not timely appeal the decision. 2. The evidence associated with the claims file subsequent to the August 1992 decision relates to an unestablished fact necessary to substantiate the service connection claim for arthritis of both knees. 3. A chronic low back disorder was not manifested in service; arthritis of the lumbar spine was not manifested in the first post service year; and a current back disorder is not attributable to service. 4. The Veteran does not have a current diagnosis of depression. 5. The RO terminated the Veteran's non-service-connected pension benefits effective from January 1, 2009, based on a finding that his countable income for the year 2008 was excessive. 6. The Veteran's total countable annual income in pension year 2006 was $20,309.00. 7. The Veteran's countable income for 2007 was $10,300.00. 8. The Veteran's total countable annual income in pension year 2008 was $11,279.00. CONCLUSIONS OF LAW 1. The August 1992 denial of service connection for bilateral knee disabilities is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. Evidence received since the January 1990 rating decision with respect to the knees is new and material; therefore, the Veteran's claim of entitlement to service connection for arthritis of the left and right knees is reopened. 38 U.S.C.A. § 5108, (West 2014); 38 C.F.R. § 3.156 (a) (2015). 2. The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 3. The criteria for service connection for depression have not been met. 38 U.S.C.A. §§ 1110, 5107(West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected pension benefits for pension year 2006. 38 U.S.C.A. §§ 1503, 1521 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2015). 5. The Veteran's countable income for 2007 was not excessive for the purposes of VA non-service-connected pension benefits. 38 U.S.C.A. §§ 1503, 1521 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.272 (2015). 6. The Veteran's countable annual income was in excess of the prescribed limit for entitlement to nonservice-connected pension benefits for pension year 2008. 38 U.S.C.A. §§ 1503, 1521 (West 2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in letters sent to the Veteran in November 2010 and June 2011, prior to the initial adjudication of the claim on appeal. It also appears that all obtainable evidence identified by the Veteran relevant to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. With respect to the claims of service connection for a chronic low back disorder and depression, a review of the Veteran's STRs reflects no evidence of either a low back or a psychiatric disorder, there is not evidence of an in-service injury or disease or manifestation of arthritis in an applicable presumptive period. Therefore, it is not necessary for VA to schedule the Veteran for an examination on these issues. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Pertinent Laws, Regulations, and Court Precedents. Service connection may be awarded for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). Certain chronic diseases, including arthritis, may be presumed to be service connected if manifested to a compensable degree within one year of separation from service even if there is no evidence of the disease during service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When a claimant does not timely appeal an RO decision denying his claim for benefits, that decision becomes final and can no longer be challenged except on the basis of clear and unmistakable error. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.). Pursuant to 38 U.S.C.A. § 5108, however, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). III. Factual background & Analysis-Arthritis of the knees. The Veteran served on active duty from February 1970 to October 1971. The service treatment records (STRs) including the February 1970 enlistment examination as well as the October 1971 separation examination were negative for any complaints or treatment for a knee disorder, including arthritis of the knees. In a statement dated in September 1989, the Veteran indicated that approximately one year after discharge, his legs started giving him problems; and, while he went to see a doctor, it took 5 years before they finally determined that he had arthritis in both knees. The Veteran reported that he experiences daily pain in his knees as a result of the arthritis. He stated that he has fallen on several occasions with no warning; he noted that he also experiences numbness in his legs with prolonged sitting. Submitted in support of the claim were VA outpatient treatment reports dated from June 1988 to November 1988. These records reflect that the Veteran was referred to an orthopedic clinic in June 1988 for evaluation of complaints of pain in both knees for the past 3 days. No pertinent clinical findings or diagnoses were noted. When seen in July 1988, it was noted that the Veteran felt more comfortable, and the pain had decreased. In September 1988, it was noted that the Veteran had pain on occasion in both knees. There was no swelling, and range of motion was within normal limits. Of record is the report of a VA examination dated in August 1989. The Veteran reported having pain on a daily basis in both knees; he also reported that he had fallen on several occasions with no prior warning. The Veteran indicated that the medications prescribed for his knees were not helping. Following an examination, x-ray study of the knees, the diagnosis was no bone or joint abnormalities found in both knees. By a rating action in January 1990, the RO denied the Veteran's claim for service connection for arthritis of both knees. It was determined that the condition was not shown in service. The Veteran was notified of the denial of his claims and his appellate and procedural rights in a letter dated January 2, 1990. In a statement dated March 5, 1991, the Veteran disagreed with the denial of his claims. By letter dated June 3, 1991, the Veteran was informed that he was denied service connection for arthritis, and was informed of that denial in a letter dated January 2, 1990; he was also informed that he had one year from the date of that letter to file a Notice of Disagreement. He was informed that his NOD was untimely. He did not appeal that decision. In a statement dated July 30, 1992, the Veteran sought to reopen his claim of entitlement to service connection for a bilateral knee disorder. By letter dated in August 1992, the RO again disallowed the claim, determining that it could not be reopened and informed him of his procedural and appellate rights. There is no notice of disagreement of record within one year of that determination. During a VA EMG consultation in July 2002, it was noted that the Veteran had had chronic knee pain for greater than thirty years. During a clinical visit in December 2002, the Veteran reported knee pain since 1972. When seen in March 2003, it was noted that the Veteran had chronic knee pain for greater than thirty years. Received in December 2011 were VA progress notes dated from February 2007 to December 2011. These records show that the Veteran received ongoing clinical attention and treatment for bilateral knee pain. During a clinical visit in March 2008, the Veteran complained of pain in both knees worse in the left knee. It was noted that the Veteran carried a previous diagnosis of degenerative joint disease of the knees. Received in August 2015 were VA progress notes dated from July 2014 to July 2015. These records show that the Veteran received continued treatment for treatment for bilateral knee pain. During a clinical visit on Jul 31, 2015, the Veteran stated that he had pain in both knees and shoulders as well. IV. Legal Analysis-New & material evidence-Knees. As noted above, service connection for arthritis of both knees was previously addressed in a rating action in January 1990. At that time, the evidence included the STRs, the Veteran's claim, and post-service progress notes and VA examination report. In January 1990, the RO denied service connection for a bilateral knee disorder based on a finding that it was not shown during service, and the records failed to show a then-current diagnosis of a right or left knee disorder. The Veteran did not perfect an appeal to that decision. The 1992 decision did not reopen the previously denied claim. Because the Veteran did not appeal the August 1992 RO decision, that decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Evidence received since the final prior denial consists of VA treatment records dated from February 2007 to July 2015, and contentions from the Veteran. The VA treatment records are new in that they were not of record at the time of the previous denial. They are material in that they reflect a diagnosis of degenerative joint disease of the knees. This evidence was not previously of record, and is not cumulative or duplicative of evidence before the RO in January 1990. Hence, the evidence is "new" within the meaning of 38 C.F.R. § 3.156. Moreover, as this evidence establishes diagnosis not shown in January 1990, it is relevant and probative of the issue at hand and cures one of the evidentiary defects that existed at the time of the prior denial. Based upon the reasons for the prior denial, the evidence is new and material and the claims are reopened. V. Factual background & Analysis-S/C for back disorder. The STRs are silent with respect to any complaints or treatment of a low back disorder. In an October 1971 report of medical history, the Veteran specifically denied ever having had recurrent back pain; clinical evaluation of the spine was normal at that time. Post service treatment records dated in the 1980's were negative for any complaints or clinical findings of a low back disorder. Of record are VA progress notes dated from July 2002 to June 2003 which show that the Veteran received clinical attention and treatment for chronic low back pain. During an EMG consultation in July 2002, it was noted that the Veteran had chronic low back pain. He was referred by orthopedics for EMG of the lower extremities. It was noted that the EMG study was normal, with no evidence of lumbar radiculopathy affective the right or left lower extremity, and no evidence of peripheral neuropathy affective the lower extremities. During a clinical visit in December 2002, the Veteran reported having had back pain for "many years." He reported constant pain that varied in locations, including the lower back, upper back, right upper extremity with paresthesias. When seen in March 2003, it was noted that the Veteran had had chronic low back pain. Following an evaluation, the assessment was chronic low back pain. Medical evidence of record, dated from July 2008 to November 2010, show that the Veteran has received ongoing clinical attention and treatment for chronic low back pain. During a clinical visit in December 2009, it was noted that the Veteran reported a history of pain in his back for more than 30 years. These complaints of back pain continued to the present. During a clinical visit on Jul 31, 2015, the Veteran reported continued back pain. A list of the Veteran's problems included chronic back pain due to degenerative joint disease and myofascial pain. Analysis. The Veteran claims that he has a low back disorder as a result of his duties in Vietnam. The Veteran maintains that he suffered from back pain in Vietnam, but it was not severe enough to require evacuation. The Veteran also maintains that he has suffered from back pain sever since his discharge from service. After review of the evidentiary record, the Board finds that service connection is not warranted for a low back disorder. Significantly, there are no reports of seeking treatment during service. The STRs do not document any reports of back pain. Significantly, he reported in his October 1971 report of medical history that he had never had recurrent back pain. He also reported, at that time, that he had suffered from cramps in his legs, had foot trouble, as well as a history of broken bones and venereal disease. The first clinical documentation of the onset of a chronic low back disorder is dated in July 2002, more than 30 years following Veteran's discharge from service. The Veteran's recent reports of having back pain during service are inconsistent with his report at separation from service that he had not had recurrent back pain. The Board finds the October 1971 report more probative than his current reports because it was made contemporaneous to the period in question. Due to this inconsistency, the Board finds the more recent reports to lack credibility. The long period without assertion of a back condition, taken together with the fact that the Veteran did file claims for other disabilities, notably those of his knees in the late 1980s, weighs against a finding that he has had symptoms involving his back in many years following separation from active service. For the reasons stated above, the preponderance of evidence is against a finding that the in-service element has been met with regard to a back disability. Therefore, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved. VI. Factual background & Analysis-S/C for depression. The STRs are completely silent with respect to any findings or diagnosis of a psychiatric disorder, including depression. The Veteran's claim for service connection for depression was received in February 2010. He stated that he had depression due to physical conditions and financial stress. He referred to use of pay day loans to survive and inability to pay for Medicare. Submitted in support of the claim were VA progress notes dated from February 2007 through July 2015. The records revealed a positive depression screening on April 29, 2010; the examiner interviewed the Veteran and recommended further intervention, but he refused. Another positive depression screening was noted on February 17, 2011; and, the clinical again recommended further intervention, but the Veteran refused. Here, there is no evidence showing that the Veteran had a psychiatric disorder or symptoms involving depression during his active service or for many years after separation from active service. His claim is stated in terms of financial difficulty and physical problems. However, he has no service connected disabilities. Furthermore, although he has positive screenings for depression, there is no clinical diagnosis of a psychiatric disability. In short, none of the three elements of service connection are met in this case. Hence, the appeal must be denied as to this issue. There is no reasonable doubt to be resolved as to this issue. VII. Whether income was excessive for receipt of NSC-Pension Benefits. A. Duty to Assist. As explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with VA's duties to notify and assist. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). B. Factual background. The Veteran's application for pension benefits (VA Form 21-526) was received in July 2003; at that time, the Veteran indicated that he was divorced. The Veteran indicated that he was unemployed; he last worked in November 2000. The Veteran reported $139.00 per month from social services. By a rating action in October 2003, the RO granted the Veteran's claim for nonservice-connected pension, effective August 1, 2003. The RO determined that the Veteran was unable to secure and follow a substantially gainful occupation due to disability. It was determined that the evidence showed the veteran to be disabled due to his disabilities, which include chronic low back pain, arthritis of the knees and depression due to his physical conditions. By letter dated in November 2003, the Veteran was informed of the award of disability pension. He was told that his award was based on zero family income. Of record is an SSA inquiry form, which documents that the Veteran received monthly social security benefits in the amounts of: $855.00 from September 2003, $873.00 from December 2003, $896.00 from December 2004, $933.00 from December 2005, $932.50 from March 2006, $963.50 from December 2006, $963.00 from February 2007, and $986.00 effective from December 2007. A letter dated in May 2006, from the SSA, shows that the Veteran was not eligible for SSI at any time during the period on appeal. By letter dated in April 2008, VA proposed to stop the benefits, effective November 1, 2003. Received in December 2008 was a copy of a decision from the Social Security Administration (SSA), dated in March 2006, which awarded the Veteran was SSA benefits. The records indicate that for 2006, the Veteran was awarded $34,232.50; in 2007, he was paid $11,558.00, and for 2008, he was awarded $11,832.00. He was paid a lump sum payment of $21, 472.50 for the period through May 2006, then $844 subsequently each month. Attached to the form was a copy of the monthly benefits credited to the Veteran during the period from September 2003 through December 2007. Subsequent SSA award letter indicates that the Veteran was awarded SS benefits in the amount of $986.00 from June 2008, $986.00 from August 2008, and $1,043 from December 2008. Received in April 2009 were several medical expenses reports. Among the records is a medical expense report (VA Form 21-8416), dated in April 2008, reflecting medical expenses for the period from January 1, 2006 to December 31, 2006. The Veteran reported being paid $796.50. His expenses were $680 for dental treatment, $215 for glasses, and $5,300 in attorney's fees, for a total of $6,195. Medical expense report (VA Form 21-8416), also dated in April 2009, reflect expenses for the period from January 1, 2007 to December 31, 2007. He received $374, and had expenses totalling $1,428. In a report of medical expenses for the period from January 1, 2008 to December 61, 2008, it was noted that the Veteran paid $900 in medical expenses during that period. By letter dated in June 2009, the Veteran was informed that his pension award had been adjusted, effective July 1, 2006. C. Legal Analysis. Nonservice-connected pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct. 38 U.S.C.A. § 1521 (a). One prerequisite to entitlement is that the veteran's income may not exceed the applicable maximum pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521 (a), (b); 38 C.F.R. § 3.3 (a). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. The MAPR is revised every December 1st and is applicable for the following 12-month period. Pension benefits are paid at the maximum annual rate reduced by the amount of annual income received by the veteran. 38 U.S.C.A. § 1521 (b); 38 C.F.R. §§ 3.3 (a) (3) (vi), 3.23(a), (b), (d) (4). 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). In general, income from Social Security Administration (SSA) benefits is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. However, Supplemental Security Income (SSI) is not considered countable income for current-law pension purposes. See M21-M V.iii. The May 2006 letter from SSA, received by VA in 2008, shows that the Veteran has not been eligible for Supplemental Security Income (SSI) benefits during the period addressed in the instant decision. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a Veteran for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the maximum annual rate of pension. 38 U.S.C.A. § 1503 (a) (8); 38 C.F.R. § 3.272 (g) (2015). In the present case, the Veteran has already been found medically eligible for non-service-connected pension; the only issue before the Board is whether his 2006, 2007, and 2008 income were properly adjusted for the purposes of payment of pension benefits. To be eligible for pension, the Veteran's income cannot exceed the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 C.F.R. § 3.3 (a) (3) (v) (2015). The MAPR, which was previously published in Part I, Appendix B, of VA Manual M21-1, is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23 (2015). According to the MAPR, the maximum income allowed for a single veteran with no dependents was $10,579.00 for the period beginning December 1, 2005, $10,929.00, effective December 1, 2006, effective December 1, 2007, the maximum annual rate of improved pension for permanent and total disability for a Veteran with no dependents was $11,181, and for the period beginning December 1, 2008, effective December 1, 2008, the maximum annual rate of improved pension for permanent and total disability for a Veteran with no dependents was $11,830. VA Manual M21-1, Part I, Appendix B. In determining the veteran's annual countable income, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. See 38 U.S.C.A. § 501 (West 2014); 38 C.F.R. §§ 3.271, 3.272. Recurring income means income which is received or anticipated in equal amounts, and at regular intervals, and which will continue throughout an entire 12-month annualization period. See 38 C.F.R. § 3.271 (a) (1). Whenever there is a change in the maximum annual pension rate, or in the veteran's family income, the monthly rate of pension payable shall be adjusted effective the date of change. See 38 U.S.C.A. § 501; 38 C.F.R. § 3.273. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a veteran for unreimbursed medical expenses, to the extent that such amounts exceed five (5) percent of the applicable maximum annual rate of pension for the veteran (i.e., at the regular pension rate and not at the special pension rate based on the need for aid and attendance). 38 U.S.C.A. § 1503 (a) (8); 38 C.F.R. § 3.272 (g). 2006 Effective December 1, 2005, the maximum annual pension rate for a single Veteran with no dependent was $10,579.00. VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. The record shows that the Veteran received a lump sum payment from SSA in the amount of $21,472.00 in June 2006. The Veteran reported medical expenses that totalled $1,691.00. Subtracting 5 percent of the maximum annual pension rate, or $1,073.00, results in $618 in deductible medical expenses. Subtracting that from the Veteran's income results in a total countable income of $20,854.00. That amount exceeds the maximum annual pension rate of $10,579.00. Thus, the Veteran was not eligible for pension in 2006. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2006 pension year, and entitlement to payment of pension benefits for the 2006 pension year is denied. 38 U.S.C.A. § 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2007 Effective December 1, 2006, the maximum annual pension rate for a single Veteran with no dependent was $10,929.00. VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. As noted above, the Veteran reported $1,802.00 of medical expenses for the year. And, his maximum annual pension rate, effective December 1, 2006, was $10,929.00. Five percent of that amount is $546.00. When that amount is subtracted from the unreimbursed medical expenses, the Board finds that the Veteran's total unreimbursed medical expenses for 2007 were $1,256.00. When subtracted from his SSA income of $11,556.00, the Veteran's total adjusted income for the year 2007 was $10,300.00. When the total income is subtracted from the MAPR for a single Veteran with no dependents, the annual pension award for 2007 equals $629.00. In conclusion, the Veteran is entitled to non-service-connected pension benefits for 2007. Here, the Veteran's total adjusted income for 2007 was $10,300.00, which does not exceed the MAPR for that year. As such, the Veteran's income was not excessive, and entitlement to pension benefits for 2007 should be calculated accordingly. 2008 Effective December 1, 2007, the maximum annual pension rate for a single with no dependents veteran with one dependent increased to $11,181.00. VA Adjudication Procedure Manual, M21-1 MR, Part I, Appendix B, Section B. The record indicates that the Veteran was awarded social security benefits in the amount of $986.00 per month, effective December 1, 2007, for a yearly income of $11,832.00. The Veteran reported medical expenses that totalled $1,112.00. Subtracting 5 percent of the maximum annual pension rate, or $559.00, results in $553.00 in deductible medical expenses. Subtracting that amount from the Veteran's income results in a total countable income of $11,279.00. That amount exceeds the maximum annual pension rate of $11,181.00. Thus, the Veteran was not eligible for pension in 2008. As above, where the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis, 6 Vet. App. 426. In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income was not excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2008 pension year, and entitlement to payment of pension benefits for the 2008 pension year is denied. 38 U.S.C.A. § 5107 (b); Gilbert, 1 Vet. App. 49. ORDER As new and material evidence has been received to reopen the claim of service connection for arthritis of both knees, the appeal to this extent is allowed. Service connection for depression is denied. As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2006 pension year, his appeal is denied. The Veteran's income was not excessive for VA pension benefits for 2007. To this extent, his appeal is granted. As the Veteran's countable income was excessive for the purposes of establishing eligibility for nonservice-connected pension benefits for the 2008 pension year, his appeal is denied. (CONTINUED ON NEXT PAGE) REMAND Having determined that the Veteran's claim of entitlement to service connection for arthritis of the knees is reopened, VA has a duty to assist the Veteran in the development of evidence pertinent to his claim. While there are current diagnoses of arthritis of the right and left knee, it is not clear whether the Veteran actually suffers from current right and left knee disorders that are traceable to his military service. The Veteran maintains that he had problems with knee pain in service, and he has suffered from chronic knee pain since separation from service. There is presently insufficient evidence for the Board to adjudicate these claims, and as such, a VA examination is necessary before appellate review may proceed. See id. In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the AOJ for the following actions: 1. Ensure that all VA treatment records are associated with the claims file. 2. Schedule the Veteran for a VA orthopedic examination of his knees. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. Following review of the file, physical examination and interview, and any indicated testing, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any currently diagnosed right or left knee disability had onset during or was caused by an event, injury or disease during his active service. A discussion of the complete rationale for all opinions expressed should be included in the examination report. The medical reasons for accepting or rejecting the Veteran's report of continuity of symptoms since service should be set forth. 3. Then, re-adjudicate the Veteran's bilateral knee disability claims. If any determination remains unfavorable to the Veteran, both he and his representative should be furnished a supplemental statement of the case and given an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs