Citation Nr: 1801350 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-29 898 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUE Entitlement to a permanent and total disability rating for pension purposes, to include under the provisions of 38 C.F.R. § 3.321 (b)(2). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to October 1998. He has additional service in the Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2011 rating decision by the RO (hereinafter agency of original jurisdiction (AOJ)). In April 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2012. In June 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A copy of the hearing transcript is associated with the claims file. In January 2015, the Board remanded the pension claim on appeal to the AOJ for further development. After completing the requested development, the AOJ continued to deny the claim for a permanent and total disability rating for pension purposes (as reflected in an August 2017 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. The Board notes that the Veteran had also perfected an appeal with regard to a claim for service connection for a low back disability and that the Board had remanded this matter in January 2015 for further development. In August 2017, the RO granted service connection for lumbar strain with intervertebral disc syndrome (IVDS), and thereby resolved the appeal as to that matter. Also, while the Veteran previously had a paper claims file, this appeal is now fully being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the remaining matter on appeal is, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on the claim for a permanent and total disability rating for pension purposes, prior to appellate consideration, is warranted, even though such will, regrettably, further delay an appellate decision on this matter. VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from non service-connected disabilities, which are not the result of willful misconduct. See 38 U.S.C. § 1521 (a) (2012). Such benefits have a number of requirements, including that a veteran (1) served in the active military, naval, or air service for 90 days or more during a period of war, (2) is permanently and totally disabled from non service-connected disability not due to his own willful misconduct, and (3) meets the net worth requirements under 38 C.F.R. § 3.274 (2017), and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23 (2017). See 38 U.S.C. §§ 1502, 1521 (2012); 38 C.F.R. § 3.3 (a)(3). Total disability is present when impairment of the mind or body renders it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2017). Permanence of disability is established if the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340 (b). As applicable to this case, a claimant will be considered permanently and totally disabled if he is: (1) unemployable as a result of disability reasonably certain to continue throughout his life; or (2) suffering from: (i) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or (ii) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 U.S.C. § 1521; 38 C.F.R. § 3.3 (a)(3). In this case, a review of the Veteran's medical records reveals that he has experienced various physical and psychiatric disabilities, including lumbar strain with IVDS, radiculopathy, tinnitus, and adjustment disorder. Moreover, he was unemployed as of the date of a November 2014 VA medical check in note and there is no more recent evidence pertaining to his employment history. The Veteran has never been afforded VA examinations to obtain information as to the nature and severity of all current physical and psychiatric disabilities. Hence, the Board finds that a remand is necessary to afford the Veteran VA general medical and psychiatric examinations, by an appropriate physician and psychiatrist/psychologist, respectively, to obtain information as to the nature and severity of all current physical and psychiatric disabilities and to obtain information as to the functional effects and extent of such disabilities. See 38 U.S.C. § 5103A (2012); Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). Thereafter, the AOJ should evaluate all of the Veteran's disabilities and assign a disability rating for each disability for pension purposes. The Veteran is hereby notified that failure to report to any scheduled examination(s) without good cause, may result in denial of his claim. See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, the claims file includes records of the Veteran's treatment from the VA Pacific Islands Health Care System dated to October 2016. Hence, there may be additional VA treatment records that have not yet been obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining matter on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In particular, the AOJ should invite the Veteran to provide updated information pertaining to his employment history. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the matter on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to particularly include all records from the VA Pacific Islands Health Care System dated since October 2016. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the pension claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) medical records. Also, request that the Veteran furnish information pertaining to his employment history and earnings during the period since August 2010. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA general medical examination, by an appropriate physician, to obtain information as to the nature, extent, and severity of all current physical disabilities. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran and a review of all pertinent lay and medical evidence, the examiner should clearly identify all currently present physical disabilities. Then, with respect to each such disability, the examiner should fully describe the functional effects of the disability on the Veteran's ability to perform the activities of daily living (to include employment) and should indicate whether it is reasonably certain that the disability will continue throughout his lifetime. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and that lay assertions in this regard must be considered in formulating any opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA psychiatric examination, by a psychiatrist or psychologist, to obtain information as to the nature, extent, and severity of all current psychiatric disability(ies). The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated psychiatrist or psychologist, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran and a review of all pertinent lay and medical evidence, the examiner should clearly identify all currently present psychiatric disabilities. Then, with respect to each such disability, the examiner should fully describe the functional effects of the disability on the Veteran's ability to perform the activities of daily living (to include employment) and should indicate whether it is reasonably certain that the disability will continue throughout his lifetime. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and that lay assertions in this regard must be considered in formulating any opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached must be provided. 6. Then, after completion of steps 1 through 5 above, the AOJ should evaluate all of the Veteran's disabilities and assign a disability rating for each disability for pension purposes. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining pension matter on appeal in light of all pertinent evidence (to particularly include that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication of the claim in August 2017), and all legal authority. 9. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).