Citation Nr: 18160193 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 11-23 769 DATE: December 27, 2018 ORDER Entitlement to non-service-connected disability pension benefits is denied. Entitlement to service connection for cervical spine joint and disc disease is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right leg condition resulting in the shortening of the right leg is remanded. FINDINGS OF FACT 1. The Veteran has excessive income to qualify for non-service-connected pension benefits. 2. Cervical spine joint and disc disease had its onset in service. CONCLUSION OF LAW 1. The criteria for entitlement to payment of non-service-connected pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. 2. The criteria to establish service connection for cervical spine joint and disc disease have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from January 1966 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision and August 2010 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified at a Travel Board hearing before a different Veterans Law Judge than the undersigned. In April 2014, this Veterans Law Judge remanded all the issues on appeal for additional development. In January 2018, after the Veteran’s appeal was returned to the Board, the Veteran was sent a letter advising him that the Veterans Law Judge who had held his hearing had left the Board’s employ and offering him another hearing. He requested a new video-conference hearing. Therefore, in August 2018, the Veteran and his daughter testified at a Board video-conference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. Entitlement to non-service-connected disability pension benefits. In his July 2009 application, the Veteran filed for non-service-connected disability pension benefits claiming he has been disabled and unable to work since 2006 due to his neck, lower back and right knee and leg. He reported he last worked in December 2006. Disability pension is paid to a veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements, and who is permanently and totally disabled from non-service-connected disability not the result of willful misconduct or is age 65 years old or older. 38 U.S.C. §§ 1502, 1503, 1521. The Veteran here served during the Vietnam era and has been found to be permanently and totally disabled as he receives disability compensation from the Social Security Administration. Therefore, the issue in this case is whether he meets the net worth and income requirements to be entitled to non-service-connected disability pension benefits. The purpose of VA pension benefits is to provide a subsistence income for veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the veteran supports. 38 U.S.C. §§ 1521, 1522. The rate of pension payable to an entitled payee is based on the amount of countable income received. The maximum annual rate of pension (MAPR) is established by statute every year and is reduced by the veteran’s countable annual income. “Annual income” includes the veteran’s own annual income, and, where applicable, the annual income of a dependent spouse and, with certain exceptions, the annual incomes of each child of the veteran in his or her custody or to whose support he or she is reasonably contributing. 38 C.F.R. § 3.23 (d)(4). Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits; payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses in excess of five percent of the MAPR, which have been paid. Medical insurance premiums, as well as the Medicare deduction, may be applied to reduce countable income. For purposes of calculating the five percent deduction for medical expenses, the MAPR is calculated using the rate for a veteran and any dependents, without regard for SMP status. 38 C.F.R. § 3.272 (g)(1)(iii). On his July 2009 application, the Veteran reported that only he had monthly income from Social Security, but his spouse had no income although she had $80.00 in cash, non-interest-bearing bank accounts, versus his $10.00. He reported they had no other income or assets and did not report any medical, legal or other expenses that could be deducted from their income. In July 2010, the RO sent the Veteran a letter asking him for his spouse’s Social Security number so they could establish her as his dependent. They also requested that he complete and return VA Form 21-0516-1, Improved Pension Eligibility Verification Report (Veteran with No Children) (hereafter “EVR”) and VA Form 21-8416, Medical Expense Report (hereafter “MER”), showing his income, new worth and unreimbursed medical expenses for the period of July 15, 2009 to July 31, 2010 and his projected income, new worth and unreimbursed medical expenses for the period of January 1, 2010 through December 31, 2010. He was given 30 days to response, but he failed to do so. In August 2010, the RO denied his claim for non-service-connected disability pension benefits because he failed to provide the requested information. He was advised that this information was requested because he reported at his VA examination in May 2010 that he was working. In December 2010, the Veteran submitted an EVR showing his income and net worth for the periods of July 2009 through December 2009 and January 2010 through December 2010 and an MER for the period of January 2010 through December 2010. In August 2012, a VA Form 5655, Financial Status Report (hereafter “FSR”), was associated with the Veteran’s claims file along with a VA Form 1100, Agreement to Pay Indebtedness. The Financial Status Report showed the Veteran had monthly gross earnings of $1,600.00 and $720.00 from Social Security. He reported he had been working since August 2010 as a driver for a hospital. In April 2014, the Board remanded the Veteran’s claim to obtain updated income and expense information because the Veteran reported on the August 2012 FSR he was still working but, at the June 2013 Board hearing, he testified he was not working and his only income was from Social Security benefits for him and his spouse. Subsequently, the RO requested the Veteran submit income and medical expense information in April 2014, October 2015, and April 2017. The Veteran responded only in May 2014 with a typewritten list of his then monthly income and expenses, but otherwise has not provided the requested information. At the August 2018 hearing, the Veteran’s representative requested that the record be held open for 90 days for the Veteran to submit this information, but nothing has been received. With regards to compliance with the Board’s remand, substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). The RO sought the information the Board requested three times and the Veteran has only responded once and incompletely at that. Therefore, the Board finds that the RO has made every effort to comply with the Board’s remand and it is the Veteran who is at fault for any noncompliance with the remand order. Thus, the Board may proceed forward with adjudicating the Veteran’s claim without prejudice to him. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Moreover, the Board remarks that the Veteran has provided insufficient income, net worth and medical expense information for VA to consider his entitlement to non-service-connected disability pension as he has failed to provide each year as requested and to provide it in the appropriate format as required. However, the Board will consider what information the Veteran has provided as much as it can, as did the RO. When the Veteran filed his application for non-service-connected disability pension benefits in July 2009, the applicable Maximum Annual Pension Rate (MAPR) for a veteran with one dependent was $15,493.00. Effective December 1, 2011, the MAPR increased to $16,051.00. On December 1, 2012, the MAPR changed again to $16,324.00, and it increased to $16,569.00 effective December 1, 2013. Finally, as of December 1, 2014, the MAPR was $16,851.00. On his July 2009 application, the Veteran reported his monthly income was $875.00 from Social Security benefits. However, information from the Social Security Administration (SSA) shows his monthly benefit was only $829.00 starting in December 2008. The Veteran reported at a May 2010 VA examination that he was currently working part-time as a driver picking up lab samples around town. In December 2010, the Veteran reported on his EVR that his monthly benefit from the SSA was $730.00. His spouse had no income. He also reported that he had gross wages from employment of $6,875.47 for the period of July 15, 2009 to December 31, 2009 and $13,396.99 from January 1, 2010 to December 31, 2010. He reported he began working in September 2009 and that he continued to work part-time supplemental work. An inquiry to the SSA, however, showed that his disability benefit remained $829.00 since December 2008, only changing slight to $828.50 in May 2010. However, in June 2010, the Veteran began paying $110.50 for his Medicare premium. Thus, it appears the Veteran reported his net payment from Social Security rather than his gross, which is what VA must consider. Regarding this initial period of entitlement, the Board notes it must consider which calculation of the Veteran’s irregular income, i.e. his earned income, is more favorable to him. In other words, whether it is more favorable to him to annualize the earned wages he reported for the period of July 2009 to December 2009 or whether the actual income starting from the first calendar year, January 1, 2010 to the end of the first reporting period July 2010 is more favorable. The only income that would change is the Gross Wages as the Social Security wages remained constant throughout that period. Gross Wages per EVR for July 2009 to December 2009: $6,875.47 Divide by 3 months for monthly wage (per statement he started working in September) $2,291.82 Multiply by 9 months (October 2009 through July 2010) $20,621.52 Gross Wages per EVR for January to December 2010: $13,396.99 Divide by 12 months for monthly wage 1,116.41 Multiply by 7 months (January through July 2010) 7,814.87 Add 2009 income 6,875.47 Total Gross Wages for July 2009 to July 2010 $14,690.34 Hence, the calculation using the 2010 gross wages for January 2010 to July 2010 is more favorable to the Veteran. Therefore, the Board finds that, for the period of July 2009 to July 2010, the Veteran’s income is as follows: Social Security $829.00 x 12 = $10,080.00 Gross Wages $14,690.00 (cents dropped) Total Annual Income = $24,770.00 Although the Veteran’s Medicare premium is a countable unreimbursed medical expense, he only started paying that in June 2010 and, therefore, only one month is countable or $110.00. As medical expenses have to exceed five percent of the MAPR, or $774.00, before they can offset income, the Veteran did not have sufficient medical expenses to count. Consequently, based upon the Board’s calculation the Veteran’s countable income exceeds the allowable MAPR of $15,493.00 and he is not entitled to non-service-connected disability pension benefits for this period. Likewise, for the calendar year of 2010, the Board finds the Veteran’s income was excessive as it was over the allowable MAPR of $15,493.00. His income was as follows: Social Security $829.00 x 12 = $10,080.00 Gross Wages per EVR $13,396.99 Total Annual Income $23,476.00 (cents dropped) Again, the Veteran’s unreimbursed Medical Expenses in the form of his Medicare Premiums did not exceed the five percent of the MAPR. In fact, it was just short of the $774.00 deductible at $773.00 ($110.50 x 7 months from June to December). Therefore, no allowance is available for unreimbursed medical expenses. The Board remarks that the Veteran provided an MER for this period but essentially left it blank. Furthermore, the Veteran also provided some income information in August 2012 on a FSR reporting he had monthly gross earnings from wages of $1,600.00 and $720.00 from Social Security. Although he reported some expenses on the FSR he submitted, he did not report any medical or other deductible expenses. The Veteran’s annual income was as follows: Social Security $720.00 x 12 = $8,640.00 Earned Wages $1,600.00 x 12 = $19,200.00 Total Annual Income $27,840.00 Again, the Veteran’s income exceeds the MAPR of $16,051.00. The Board notes that it did not give the Veteran a deduction for his Medicare premiums because it appears from previous information in the claims file that he has already reported his Social Security benefits at net (meaning with the Medicare premium already deducted from his payment) and to allow a deduction would be to count such deduction twice. Finally, in May 2014, the Veteran reported what appears to be merely a snapshot of his monthly income and expenses. He reported income for him and his spouse from Social Security in the amounts of $761.00 and $156.00 for him and $262.00 for his spouse. He also reported he earned $500.00 per month from a part-time job. Information from SSA indicates that, from December 2013 through November 2014, the Veteran’s monthly benefit was $978.90. It also indicates he was paying $108.00 towards his Medicare premium. As previously indicated, VA takes the gross amount that the Veteran receives from SSA rather than the net amount, which it appears the Veteran has consistently reported. Thus, the Board will use the information received from SSA in calculating the Veteran’s entitlement. The Veteran’s income for 2014 is calculated as follows: Social Security: Veteran $978.90 x 12 = $11,746.80 Spouse $262.00 x 12 = $ 3,144.00 Earned Wages: Veteran $500 x 12 = $ 6,000.00 Total Annual Income $20,890.00 (cents dropped) Unreimbursed Medical Expenses: Medicare Premiums $108.00 x 12 = $ 1,296.00 Less: 5% deductible 828.00 Countable Medical Expenses $ 468.00 Countable Income $20,422.00 Therefore, the Veteran’s income was excessive in this year as well as the MAPR was $16,569.00. The Board acknowledges that the Veteran reported “medical/health” expenses of $50.00 per month on his list of income and expenses. However, such a roundabout figure is apparently an estimated or averaged number of what the Veteran spends for such expenses. VA does not accept estimates or averages of medical expenses. Only actual medical expenses that are unreimbursed and paid can be taken to offset income and such must be reported in detail for VA to accept such expenses. Consequently, the Board cannot consider the Veteran’s $50.00 reported “medical/health” expense in calculating his entitlement to non-service-connected disability pension benefits. Unfortunately, now it is too late for the Veteran to report his actual medical expenses as he has one year from the end of the year to submit such expenses. In other words, for the year ending December 31, 2014, the Veteran would have had to submit his unreimbursed medical expenses by December 31, 2015 for their submission to have been timely and for the RO to recalculate his entitlement to see if he had sufficient medical expenses to reduce his income below the MAPR and entitle him to pension payments. As the Veteran’s income exceeds the MAPR in each period for which he provided income and expense information, the Board has no choice but to deny his claim for entitlement to non-service-connected disability pension benefits due to excessive income. However, the Board notes that, as the MAPR keeps rising and the Veteran’s income appears to have been falling, he may desire to follow up with the RO regarding the possibility of his being entitled to benefits, especially if his unreimbursed medical expenses become significant because, as of 2014, there was less than a $4,000.00 difference between his income and the MAPR. The Veteran is welcome to come back in to reopen his claim for pension if his financial situation changes sufficiently that he feels he income is low enough that he would now be entitled to non-service-connected disability pension benefits. Entitlement to service connection for cervical spine disability. The Veteran seeks service connection for cervical spine disability because he reports that the disability began in service and has been recurrent since that time. All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As the Board noted in the April 2014 remand, the Veteran reported at his June 2013 Board hearing that he injured his neck during service while playing football and was hospitalized on base at Fort Campbell, Kentucky. This report was corroborated by a statement submitted by the Veteran’s wife in September 2010, who indicated that she visited the Veteran while he was in the hospital in 1966. Indeed, at the Veteran’s August 2018 Board hearing, the Veteran reiterated that he injured his neck while boxing during service and his wife offered sworn testimony that she visited while he was hospitalized during service to treat his neck. The Veteran further testified that he has had recurrent neck problems since that time. The Veteran has a diagnosis of cervical spine joint and disc disease. See January 2016 VA examination report. Thus, the first two criteria have been met. Further, the competent and credible evidence of record shows that his current cervical spine began during service and have been recurrent since that time. The Veteran is competent to report the onset and continuation of his neck problems since service and the Board finds his testimony credible. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the January 2016 VA examiner opined that the Veteran’s cervical spine disability was not related to service; however, because the evidence shows that the Veteran’s cervical spine disability had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). REASONS FOR REMAND Entitlement to service connection for a lumbar spine disorder and right leg condition resulting in the shortening of the right leg are remanded. Unfortunately, the Board finds that remand is warranted to assist the Veteran in obtaining additional development relevant to his claims based upon his testimony at the recent Board hearing and a review of the record. Initially, the Board is concerned about the lack of service treatment records in the record given the Veteran’s testimony about his activities in service as a boxer and that he played various sports including flag football. The Veteran discharged from active duty in April 1969 and his service treatment records were obtained by VA in June 1970. The service treatment records available merely consist of the Veteran’s separation examination reports, a single page of treatment notes from June 1968; a consultation sheet for referral to the Orthopedics Clinics in June 1968; a blank sheet dates in June 1968 with the Orthopedic Clinic’s stamp on it; two X-ray reports from April and June of 1968; and the Veteran’s dental records. The Board does not find it unreasonable to think that there may additional service treatment records because his records were obtained only 14 months after his discharge and there are no records in the file prior to his move to Fort Campbell, Kentucky. An abstract of service in the dental records shows the Veteran was moved to Fort Campbell in January 1968. So it appears that maybe only his medical records from Fort Campbell made it to the National Personnel Records Center before VA requested his records in June 1970. Moreover, the Veteran was involved in sports during his service and such servicemembers often had multiple visits to sick call for various sports-related injuries. Therefore, the lack of sick call records for such treatment is suspicious. Finally, the available records contain an X-ray report for an April 1968 injury to the Veteran’s left knee for which there are no sick call records. However, the Veteran must have received treatment for such an injury for an X-ray to have been ordered and there must be a record of such treatment. Whatever the reasoning, the Board believes that remand is warranted to search for more service treatment records. The matters are REMANDED for the following action: 1. Request the Veteran’s service treatment records from the NPRC or other appropriate agency. 2. Obtain records of any inpatient treatment at the Ireland Army Community Hospital at Fort Knox, Kentucky in 1966. Document all requests for information as well as all responses in the claims file. 3. Afford the Veteran a VA examination to determine whether his low back and right leg conditions are related to or had their onset in service. The examiner should state the likelihood that any low back and/or right leg disability found to be present existed prior to service. If the examiner concludes that and low back and/or right leg disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having low back and/or right leg disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran’s report of the onset and/or recurrence of any low back and/or right leg symptoms since service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow