Citation Nr: 20004885 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-11 543 DATE: January 23, 2020 ORDER A permanent and total disability for purposes of nonservice-connected pension benefits is granted. FINDINGS OF FACT The Veteran is permanently and totally disabled due to nonservice-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension have been met. 38 U.S.C. §§ 1502, 1503, 1521; 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273, 3.660. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from December 1974 to December 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision. The Veteran testified before the Board at a hearing in November 2019. A transcript of the hearing has been associated with the claims file. Nonservice-Connected Pension The Veteran asserts that he is entitled to nonservice-connected pension benefits. The law provides that VA shall pay to each Veteran who meets certain wartime service requirements and who is permanently and totally disabled from nonservice-connected disabilities not the result of the Veteran’s willful misconduct, pension at a rate set by law, reduced by the amount of his countable income. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23. Next, “permanent and total disability” will be held to exist when an individual is unemployable as a result of disabilities that are reasonably certain to last throughout the remainder of that person’s life. 38 C.F.R. §§ 3.340(b), 4.15. Pension cases must be adjudicated by applying both “objective” and “subjective” standards. Talley v. Derwinski, 2 Vet. App. 282, 285 (1992). The Board has reviewed the evidence of record and finds that entitlement to nonservice-connected pension is warranted. First, as noted above, the Veteran’s DD Form 214 demonstrates service in the Army from December 1974 to December 1976. Therefore, the Board finds that as the Veteran served for a period of 90 days or more during a period of war, the service requirement for basic pension eligibility have been met. 38 U.S.C. § 1521; 38 C.F.R. § 3.3. Next, regarding the issue of permanent and total disability, the Veteran underwent an in-person VA examination with claims review regarding his nonservice-connected disabilities in October 2015. The examiner assessed the Veteran’s diagnosed lung nodules disability and left foot ulcer disability. The examiner opined that the Veteran’s nonservice-connected disabilities prevent him from obtaining and retaining substantially gainful employment; however, the examiner also stated that the Veteran’s disabilities were not likely to be permanently disabling. Subsequently, in the November 2015 rating decision, the Agency of Original Jurisdiction (AOJ) found that although the Veteran has been determined to be prevented by his nonservice-connected disabilities from obtaining and retaining substantially gainful employment, the degree of disability was not permanent. Therefore, entitlement to nonservice-connected pension was denied. In February 2017, the Veteran was afforded a second in-person VA examination with claims file review regarding his nonservice-connected disabilities. The examiner noted that the Veteran had a diagnosis of lung nodules with upper lobectomy and a left foot ulcer. The examiner further noted that the Veteran’s left foot ulcer had improved since the last VA examination. The examiner opined that the Veteran’s nonservice-connected disabilities did not prevent him obtaining and retaining substantially gainful employment. Further, at the November 2019 hearing before the Board, the Veteran provided credible testimony regarding his nonservice-connected disabilities. The Veteran stated that since his last VA examination in February 2017, his medical condition had severely worsened. The Veteran stated that during the February 2017 VA examination, his leg ulcer had temporarily improved. He stated that the leg ulcer presently causes significant limitations on sitting and standing, and that he must sit with his leg elevated so as not to aggravate the ulcer. Further, the Veteran stated that at the time of the February 2017 VA examination, his lung disability had not yet been properly diagnosed and was only considered a lung nodule with lobectomy. The Veteran stated that since the last VA examination, his lung disability has been properly diagnosed as terminal metastatic lung cancer. The Veteran stated that his lung cancer requires extensive treatment, including chemotherapy, and that due to his lung cancer he is not able to obtain or retain employment. In November 2019, the Veteran submitted a statement from his VA treating physician stating that the Veteran’s lung disability had progressed to small cell lung cancer and that his prognosis is terminal. In November 2019, the Veteran also submitted VA treatment records demonstrating a diagnosis of metastatic lung cancer with extensive and progressive chemotherapy treatment. The Board finds the statements of the Veteran’s VA treating physician and evidence in the VA treatment records to be of highly probative value. The evidence demonstrates that the Veteran’s degree of disability is incredibly severe as his physician stated that his prognosis is terminal. Further, the evidence demonstrates that the Veteran’s lung cancer requires extensive and progressive chemotherapy treatment. Moreover, the credible hearing testimony demonstrates that in addition to his terminal lung cancer, the Veteran has significant limitations on sitting and standing. Accordingly, the Board finds that as the Veteran’s nonservice-connected disabilities prevent him from obtaining and retaining substantially gainful employment, entitlement to nonservice-connected pension is warranted. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing entitlement to nonservice-connected pension have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.