Citation Nr: 1723919 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 13-10 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than May 1, 2011, for the grant of nonservice-connected pension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service 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 Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The claim was subsequently transferred to the VA RO in Waco, Texas. In an August 2016 rating decision, the Veteran was granted entitlement to nonservice-connected pension effective May 1, 2011. However, the appeal of entitlement to nonservice-connected pension prior to May 1, 2011, was continued in a July 2016 supplemental statement of the case. Therefore, the Board has limited its consideration accordingly. The Veteran originally requested a hearing before a member of the Board 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 The hearing request is therefore deemed withdrawn. This case was previously before the Board in January 2016, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran filed a claim for nonservice-connected pension no earlier than July 14, 2010. 2. Prior to May 1, 2011, the Veteran's disabilities did not preclude him from securing and maintaining gainful employment. CONCLUSION OF LAW The criteria for an effective date earlier than May 1, 2011 for nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 5110, 7105 (2016); 38 C.F.R. §§ 3.3, 3.159, 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Except as otherwise provided, the effective date of an evaluation and award of pension will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2016). An award of disability pension may not be effective prior to the date that entitlement arose. 38 C.F.R. § 3.400 (b)(1) (2016). On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was signed into law. Section 206 of the Act amended 38 U.S.C.A. § 1502(a) by modifying the qualifications for being considered "permanently and totally disabled." Specifically, under the 2001 amendment, a person shall be considered permanently and totally disabled if he or she: (1) is a patient in a nursing home for long-term care due to disability; (2) is disabled as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; (3) is unemployable as a result of disability that is reasonably certain to continue throughout his or her life; or (4) is suffering from a disability that would render it impossible for the average person to follow a substantially gainful occupation, or a disease or disorder that is determined by the Secretary to justify a determination that individuals suffering from such a disease or disorder are permanently and totally disabled. The amendment to 38 U.S.C.A. § 1502(a) went into effect as of September 27, 2001. Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 206 Notes, 115 Stat. 976 (2001). According to the Veteran's VA Form 21-257, he contends that he has been disabled since approximately January 2008, initially stated as the date of his last employment. He later declared the date of his last employment as August 2008, when he worked as a laborer for Neon Electric Company for approximately 2 months. The Veteran asserts that he is unable to secure or maintain gainful employment as a result of right eye blindness, degenerative disc disease (DDD) in his spine, and mental health issues which are not service connected. The Veteran filed his claim for nonservice-connected pension on July 14, 2010. There is no evidence of an earlier claim. Here, the Pension Management Center determined that the Veteran was entitled to nonservice-connected pension benefits, with an effective date of May 1, 2011, the date that the Veteran became eligible and deemed disabled by the Social Security Administration (SSA). SSA records associated with the file indicate that the Veteran asserted that he became disabled due to his DDD, vision problems, and a right hand fracture. However, further evidence of record showed that while the Veteran was blind in his right eye, he was not legally blind. SSA determined that the earliest date of impairment was found on May 1, 2011, when the combination of the Veteran's condition and his age further limited his work opportunities. It was determined that prior to that date, the Veteran's age, education, and work experience would have allowed him to do some type of work, including sedentary and light duty work. The Veteran indicated that he completed two years of college and had previously worked as a cook, a day laborer, a waiter, a pipe layer, and a temporary service worker. An examiner opined that the Veteran was able to lift 20 pounds occasionally, frequently lift and carry 10 pounds, stand and walk about 6 hours a day, and sit for about 6 hours a day. He was not found to have visual limitations, with the exception of depth perception, which was limited. Medical records indicate that the Veteran's disabilities, including lumbar spine disability, blindness of the right eye, radiculopathy of the left lower extremity, tendonitis, hypertension, and gastroesophageal reflux disease (GERD) may have dated as far back as May 2009. However, when an examination was obtained to determine severity, the examiner noted that those conditions did not preclude employment. An August 2009 VA treatment note, listed many of those disabilities as diagnoses, but there is no evidence of DDD as a listed disability at that time. September 2009 treatment records indicate that the Veteran did not use any type of assistive device to aid him with any existing DDD or leg disabilities. A note from the examiner at that time also indicated that the Veteran was laid off approximately one year prior, and that it was not related to his medical conditions. Worth noting is that on the Veteran's application for SSA disability pension, when asked why he stopped working, he responded "because of other reasons," and that he was laid off, but that his conditions did not cause him to make a change in his work activity. An October 2009 VA examination of the Veteran's hand indicated that he had a slightly weakened grip, but that there was no dropping, no redness, no warmth, no swelling, no flare ups, no hospitalizations, no loss of function and no surgeries. The examiner further noted that the Veteran's residual fracture had subsided without complications. The Veteran's medical records associated with the file include records from November 2009 through May 2012 at the Austin VA Medical Center. The only indication that the Veteran was seen during that period between July 2010 and May 2011 was that he underwent a bidirectional endoscopy in September 2010. The Veteran was noted as having gastritis and hemorrhoids, but no further medical conditions were indicated. Furthermore, there did not seem to be any mention of a worsening spine condition or aggravated DDD. As the Veteran did not apply for nonservice-connected pension until July 14, 2010, and there is no evidence of entitlement arising prior to that, a grant for benefits cannot apply to a time period prior to July 2010. While the Veteran contends that his disabilities arose between January and August 2008, there is no evidence of record supporting his assertion that they were so severe that they precluded him from securing or maintaining gainful employment. In considering this appeal, the Board did consider the Veterans Education and Benefits Expansion Act of 2001. However, the Veteran was not deemed disabled by SSA until May 1, 2011, and there was no other evidence of record indicating that he was in a nursing home for long term care, or that he was unemployable as a result of his disabilities prior to May 1, 2011. The Board also considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not proper for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the foregoing, the Board finds that entitlement to nonservice-connected pension did not arise until May 1, 2011. Therefore, the Board concludes that there is no basis to award an effective date prior to May 1, 2011, for the Veteran's nonservice-connected pension, and that the claim must be denied. ORDER Entitlement to an effective date prior to May 1, 2011, for the award of nonservice-connected pension benefits is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs