Citation Nr: 1806659 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-21 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Pension Management Center in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected pension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from December 1974 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2016 decision, the Board denied entitlement to nonservice-connected pension. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2017, the Court granted a joint motion for remand and vacated and remanded the case to the Board for action consistent with the joint motion The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the August 2016 Board decision, the Board found that the Veteran was not precluded from performing sedentary work. The parties to the Joint Motion found that the Board decision did not adequately explain why the Veteran is not precluded from performing substantially gainful employment. Nonservice-connected pension is payable to a veteran who served for 90 days or more during a period of war and who meets certain income and net worth criteria and who is permanently and totally disabled due to nonservice-connected disability not the result of his or her own willful misconduct. 38 U.S.C. § 1521 (2012); 38 C.F.R. § 3.3 (a)(3) (2017). The Court has provided an analytical framework for application in pension cases. See Talley v. Derwinski, 2 Vet. App. 282 (1992); Roberts v. Derwinski, 2 Vet. App. 387 (1992); Brown v. Derwinski, 2 Vet. App. 444 (1992). The holdings in these cases are to the combined effect that VA has a duty to ensure that an appropriate rating for each disability of record is assigned using the approach mandated by Schafrath v. Derwinski, 1 Vet. App. 589 (1991); that the "average person" and "unemployability" tests are both applied; and that if the benefit may not be awarded under the "average person" or "unemployability" tests, a determination must then be made whether there is entitlement to nonservice-connected disability pension on an extraschedular basis. The Veteran's nonservice-connected disabilities include muscle spasm with upper and lower back pain, high blood pressure, and stomach problems. In a May 2017 brief, the Veteran's attorney stated that the Veteran is not capable of sedentary work because his back disability prevents him from sitting for long periods of time. The Veteran's attorney maintains that his disabilities limit his ability to lift, carry, stand, walk, and sit. The attorney asserts that the Board did not consider the combined effects of the Veteran's disabilities, his education, and his work history. The criteria for muscle spasm of the upper and lower back are set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5237. A compensable rating requires evidence showing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Hypertension is rated according to Diagnostic Code 7101. A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The Veteran's stomach problems are rated by analogy to diagnostic code 7310. Diagnostic code 7310 indicates that residuals of stomach injury are to be evaluated as peritoneal adhesions. Diagnostic code 7301 provides that a 10 percent rating is warranted for moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. The denial of nonservice-connected pension was based on a July 2014 examination. The Board finds the July 2014 VA examination report is inadequate with respect to the Veteran's back, hypertension, and hernia symptoms, because the report does not contain adequate findings necessary for the Board to rate the Veteran's nonservice-connected disabilities according to the applicable criteria. Before a total and permanent disability rating can be awarded, an evaluation must be performed to determine the percentage of impairment caused by each disability. Roberts, supra. The Board finds that another VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of muscle spasm of the upper and lower back, hypertension, and stomach problems. The claims file and a copy of this remand should be provided for the examiner's review. a) The examiner must specifically test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he/she should clearly explain why that is so. b) The examiner should determine whether the Veteran has a history of diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; and whether he requires continuous medication for control. c) The examiner should describe the manifestations of the Veteran's stomach problems. The examiner should indicate whether the stomach problems result in pulling pain on attempting work or aggravated by movements of the body; occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea); or abdominal distension. 2. Then, readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative will be issued an appropriate supplemental statement of the case and afforded the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ JENNIFER HWA 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).