Citation Nr: 1817763 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 16-23 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a nonservice-connected pension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Air Force from November 1974 to November 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied entitlement to a nonservice-connected pension. The Veteran filed a Notice of Disagreement in October 2014. A Statement of the Case was issued in April 2016. The Veteran filed his Substantive Appeal in May 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, remand is necessary to adjudicate the issue on appeal. At the outset, the Board notes that the Veteran's file appears to be incomplete. The Statement of the Case acknowledges that the Veteran submitted a timely Notice of Disagreement in October 2014, but the Notice of Disagreement itself is not associated with the Veteran's electronic claims file. On remand, all documents must be properly associated with the Veteran's electronic claims file. VA will grant nonservice-connected disability pension benefits to a wartime Veteran who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a Veteran: (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. §§ 3.274, 3.275, and has an annual income that does not exceed the applicable maximum annual pension rate. 38 U.S.C. §§ 1502, 1521, 1522 (2012); 38 C.F.R. §§ 3.3, 3.23 (2017). For the purposes of a nonservice connected pension, a veteran is considered to be permanently and totally disabled if he is: (1) a patient in a nursing home for long-term care because of a disability; or (2) disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from either (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. § 1502(a); 38 C.F.R. § 3.3(a)(3)(vi)(B); see also 38 C.F.R. § 3.340. The permanent and total disability requirement for nonservice-connected disability pension under section 1521(a) is excluded for veterans aged 65 or older. See 38 U.S.C. § 1513(a). The Veteran served over 90 days on active duty in the Air Force during the Vietnam era. As such, he is initially eligible for pension consideration. Evidence of record does not address his present annual income, though evidence has been submitted indicating that he suffers severe financial hardship. The primary point of contention is whether he is permanently and totally disabled for purposes of pension consideration. Evidence of record does not reflect that the Veteran is a patient in a nursing home for long-term care, and a negative finding with respect to Social Security Administration records has been associated with the claims file. As such, the impact of his nonservice-connected disabilities on his employability must be resolved in order to qualify for nonservice-connected pension. Unfortunately, the August 2014 and June 2016 VA medical opinions of record are insufficient to determine the Veteran's employability. The opinions offer insufficient rationales to support the conclusion that the Veteran is capable of sedentary employment. The opinions additionally did not consider the Veteran's other nonservice-connected disabilities, nor did they appropriately address the Veteran's competent lay reports of associated symptomatology. Finally, while the Veteran may be capable of sedentary employment even with his nonservice-connected disabilities, sedentary employment may not be appropriate given the Veteran's background, education and skills. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). VA examiners did not consider the Veteran's education and prior work history in determining that the Veteran was capable of sedentary employment. As such, a more thorough opinion as to the Veteran's employability is necessary on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate any and all outstanding documents with the Veteran's electronic claims file, to include his October 2014 Notice of Disagreement. 2. Contact the Veteran to obtain releases for any private treatment of his nonservice-connected disabilities. Make all reasonable efforts to obtain all relevant, outstanding medical and/or treatment records. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). All obtained records should be associated with the claims file. 3. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 4. The AOJ should ask the Veteran to complete VA Forms 21-686c (Declaration of Status of Dependents) and 21-527 (Income-Net Worth and Employment Statement), for each annual period since 2014. He should be advised what constitutes countable annual income and of the various exclusions from income; he should be afforded opportunity to furnish information concerning his unreimbursed yearly medical expenses since 2014. 5. Once the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate clinician to determine his eligibility for nonservice-connected pension. The examiner must review the entire claims file with particular attention to this remand. The examiner must consider the nature of the Veteran's previous work experience, as well as his education in determining whether sedentary employment is reasonable. The examiner must provide an opinion as to whether the Veteran's nonservice-connected disabilities render him unable to secure or follow substantially gainful employment. In his or her rationale, the examiner must address previous medical opinions of record regarding the Veteran's cognitive functioning, including those of the VA examiners, as well as of Dr. G. from the VA Medical Center Neuropsychology Clinic. The examination report should specifically state that a review of the record was conducted. Any and all diagnostic testing deemed necessary should be performed prior to finalizing the report. The examiner should provide a complete rationale for all opinions provided, which involves a detailed discussion of the reasoning behind each conclusion and does not rely on conclusory statements. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 6. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ KRISTY L. ZADORA Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).