Citation Nr: 1816624 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-15 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected pension benefits. WITNESSES AT HEARING ON APPEAL The Veteran and his cousin ATTORNEY FOR THE BOARD M. M. Celli, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to August 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran and his cousin testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the undersigned held the record open for 60 days for the receipt of additional evidence, which was subsequently submitted by the Veteran. 38 U.S.C. § 7105(e), as amended (2012); section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Nonservice-connected pension is a benefit payable by VA to a veteran of a period of war because of permanent and total disability or who is beyond 65 years of age. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting the veteran's annual family countable income from the maximum annual pension rate (MAPR) applicable to the veteran's circumstances. 38 U.S.C. § 1521. The Board notes that the Veteran has argued that his spouse's income should not be considered for the purposes of determining his eligibility to nonservice-connected pension. In this regard, VA law provides that, if the veteran is married and living with or reasonably contributing to the support of his spouse, or if there is a child of the veteran in his custody or to whose support he is reasonably contributing, such individuals will be considered as dependents of the veteran for the purposes of determining his rate of pension. 38 U.S.C. § 1521(c). As the Veteran and his spouse are currently married and living together, despite maintaining separate finances, her income will be considered in his family income. Likewise, for the purpose of establishing his MAPR, she will be considered as a dependent. However, the Board finds additional development is necessary to accurately calculate the Veteran's annual family countable income during the appeal period. First, the Veteran has reported that he receives benefits through the Social Security Administration (SSA). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the United States Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). As records submitted in conjunction with the Veteran's SSA benefits claim may reflect countable income for purposes of determining eligibility to VA pension, remand is required to attempt to obtain the Veteran's SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010); Pub. L. 92-198; 38 C.F.R. § 3.262(f) (2017). Second, there may be outstanding information pertinent to his annual family countable income during the appeal period, which the Veteran can provide in support of his claim. The current record contains only the Veteran's incomplete, initial claim dated December 2010, a March 2011 Request for Approval of School Attendance for the Veteran's daughter, [REDACTED], his spouse's 2014 Individual Income Tax Return, and a medical expense report for 2016, with no supporting documentation. Although the record demonstrates the AOJ previously requested additional, specific documents, the Veteran again should be afforded the opportunity to submit such evidence upon remand. Accordingly, the case is REMANDED for the following actions: 1. Contact SSA and documentation relating to the Veteran's annual family countable income within SSA's possession. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request that the Veteran submit a complete report of his family's income, net-worth, and expenses for each year from 2010 to 2018 (Financial Status Report, VA Form 5655), to include that of his spouse and his dependent child, if applicable. The Veteran is also asked to submit information as to any paid, unreimbursed medical expenses on a VA Form 21-8416 (Medical Expense Report) for the above years. 3. After completing the above actions, to include any other development that may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim of entitlement to nonservice-connected pension benefits should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, issue the Veteran a supplemental statement of the case. An appropriate period of time should be allowed for a response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. JAEGER 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).