Citation Nr: 1751686 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-28 489A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to April 1, 2012, for reinstatement of nonservice-connected pension benefits. ORDER An effective date prior to April 1, 2012, for reinstatement of nonservice-connected pension benefits is denied. FINDINGS OF FACT 1. The Veteran requested to terminate receipt of his nonservice-connected pension benefits in August 2010, and VA terminated his pension benefits, effective September 1, 2010, in a December 2010 VA letter. The Veteran's request for reinstatement of his pension benefits was received in March 2012, and the earliest possible effective date for that reinstatement is necessarily April 1, 2012. 2. The Veteran was not incompetent for VA purposes at the time of his August 2010 termination request, and VA did not have any duty to ascertain the Veteran's competency at the time of that request based on the evidence of record. CONCLUSION OF LAW The criteria for establishing an effective date prior to April 1, 2012, for reinstatement of nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from January 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 letter of determination by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran at a Board hearing before the undersigned Veterans Law Judge in November 2016. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2016). Prior to August 2010, the Veteran was in receipt of nonservice-connected pension benefits and his eligibility for such benefits was not in question. In August 2010, the Veteran requested to stop receipt of nonservice-connected pension benefits "effective immediately." He stated that he did not wish to receive the assistance of pension from VA because he felt, at that time, it was not in his best interest to receive those benefits as he was "not ill." VA effectuated that request in a December 2010 letter and terminated the Veteran's pension benefits, effective September 1, 2010. The result of that termination resulted in an overpayment of pension benefits for the months of September, October, November, and December 2010; VA subsequently granted a waiver of that debt of overpayment in a May 2011 decision. Subsequently, VA received the Veteran's claim to reinstate his nonservice-connected pension benefits in March 2012; he indicated that he was requesting retroactive payment of benefits in order to pay the mortgage for a piece of property. In a March 2012 statement, the Veteran indicated that he previously had voluntarily requested termination of his pension benefits, because at that time he was unsure that he deserved pension benefits as he was in fairly good health and was a bit younger. He further noted that there were also outside factors which convinced him to terminate his pension benefits, including guilt for receiving pension benefits when other people may be more deserving. He concluded that this was a mistake and that he felt different now due to the fact that he had serious medical issues. In an August 2012 letter, VA reinstated the Veteran's nonservice-connected pension benefits, effective April 1, 2012; that date corresponds to the first of the month following receipt of a claim for pension, which is the earliest date of entitlement. In a May 2013 statement, the Veteran indicated that he was requesting reinstatement of his pension benefits to September 2009, as that was the date that he voluntarily requested termination of his pension benefits. He stated that at the time of his termination request he mistakenly believed that he could gain employment at minimum wage; he was younger at that time and was in fairly good health, but he now had high blood pressure and a hole in his heart. In a November 2016 before the undersigned, the Veteran testified that he requested to have his pension benefits terminated in August 2010, after his release from incarceration, in order to seek employment. The Veteran and his representative conceded during that hearing that the Veteran did not seek reinstatement of his pension benefits until March 2012, although such was "a little later than he should have probably discretionally done." Regarding his attempt to find gainful employment, the Veteran testified that he attempted to work for 2 years but was unable to find work due to having a "double stigma" as a felon and due to a finding of incompetency. He indicated that he had been declared incompetent by the state and that he had served his sentence at a mental facility. The Veteran further testified that he was mentally incompetent at the time that he made the request for termination of his pension benefits in August 2010; he and his representative contended during the hearing that VA had a duty to ascertain the Veteran's competency prior to terminating his benefits. Initially, as to the Veteran's contentions regarding the scope of his claim on appeal, the Board reflects that the only period of time for which VA would be allowed to pay the Veteran any retroactive benefits in this case-were his claim to be awarded-would be for the period of January 1, 2011 through March 30, 2012, as he has already received pension benefits for the period prior to January 1, 2011 and subsequent to March 30, 2012. Turning to the merits of the earlier effective date claim, the Board finds that the correct effective date has been assigned in this case; as noted above, April 1, 2012 is the earliest possible effective, as that is the first of the month following receipt of his claim for reinstatement of nonservice-connected pension benefits. Regarding the Veteran's contentions that he was incompetent at the time of his termination request in August 2010, the Board expressly rejects this contention, noting that the Veteran was not declared incompetent for VA purposes at that time or at any time prior to August 2010. In fact, the Board reflects that the Veteran has never been declared incompetent for VA purposes at any time; at the time of this decision, VA recognizes that the Veteran is competent for purposes of handling his own financial affairs. Insofar as the Veteran has indicated that he was found incompetent and was under the supervision of his probation officer at the time of his August 2010 termination request, the Board notes that there is no evidence of record at this time, aside from the Veteran's assertions, that he was previously found to be incompetent by some other non-VA authority or agency. However, even if such was the case and the Veteran had been declared incompetent by some other agency prior to August 2010, VA is not bound by any determination of incompetency by other agencies. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including the Social Security Administration). Next, insofar as the Veteran has argued that VA had a duty to perform an examination in order to determine competency in August 2010 prior to terminating his benefits, the Board is aware of no such duty on the part of VA, although the Board does allow that such evidence, if of record, may have been persuasive evidence of possible incompetency at that time and may have triggered a duty to ascertain whether the Veteran was incompetent for VA purposes. However, the Board reiterates that the Veteran did not submit any such evidence of his incompetency with his August 2010 termination request, nor was there evidence of incompetency of record prior to receipt of that request in August 2010. The Board also further reiterates that, aside from his own assertions, the Veteran has, as of this decision, yet to proffer any evidence of his incompetency at any time during this appeal. Moreover, even though the Veteran and his representative eluded to the fact that there is potentially outstanding evidence regarding the Veteran's incompetency that is not of record, the Board reflects that remanding to obtain that evidence at this time would not provide a reasonable possibility of substantiating the Veteran's claim, as it would not demonstrate that VA was under any duty to clarify the Veteran's competency at the time of the August 2010 termination request. In order words, any remand at this time to obtain evidence regarding possible incompetency would merely trigger a prospective duty to obtain a competency examination that would be applied to future payments of nonservice-connected pension benefits; any finding of incompetency would not be applied retroactively. Consequently, the Board finds that remanding to obtain any further evidence of incompetency is not necessary at this time, as there is no reasonable possibility that such further assistance would substantiate this claim. See 38 C.F.R. § 3.159(d). In conclusion, the Veteran was not declared incompetent for VA purposes at the time of his August 2010 request to terminate payment of his nonservice-connected pension benefits, and therefore, VA's termination of his nonservice-connected pension benefits beginning in September 2010 was not improper. In fact, the Veteran has conceded throughout the record that he voluntarily elected to terminate his pension benefits in August 2010 in order to attempt to find employment; at that time, he indicated that he was making this decision in his own best interest. It is not incumbent upon VA to question the Veteran's choice in that matter, and certainly not in the case of a Veteran who was considered competent for VA purposes at that time. Finally, there was no evidence of record at the time of the August 2010 termination request which would have indicated to VA that the Veteran was in any other state other than his sound mind, and obtaining any contrary evidence of such at this late date would not allow for a retroactive finding of incompetency for VA purposes. Accordingly, the Board finds that VA's termination of his nonservice-connected pension benefits in August 2010 and reinstatement of those benefits on April 1, 2012, following receipt of the March 2012 claim for reinstatement, was proper in this case. The Board must therefore deny the Veteran's earlier effective date claim based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.400. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel Copy of Decision Sent To: Disabled American Veterans Department of Veterans Affairs