Citation Nr: 20005281 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-30 572 DATE: January 22, 2020 ORDER New and material evidence having been received by VA sufficient to reopen a previously-denied claim to establish eligibility to nonservice-connected VA pension benefits, the claim is reopened. REMANDED Entitlement to nonservice-connected VA pension benefits, to include a special monthly pension based on housebound status or the need for the aid and attendance, is remanded. FINDINGS OF FACT 1. An April 2012 administrative decision denied the Veteran’s claim to establish eligibility to nonservice-connected VA pension benefits; the Veteran did not appeal that decision, nor was any new and material evidence pertinent to his knees or right shoulder submitted within the appeal period. 2. Evidence received by VA since the final April 2012 administrative decision raises a reasonable possibility of substantiating the claim to establish eligibility to nonservice-connected VA pension benefits. CONCLUSIONS OF LAW 1. The April 2012 administrative decision is final with respect to the Veteran's claim to establish eligibility to nonservice-connected VA pension benefits. 38 U.S.C. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 2. Evidence received by VA subsequent to the appeal period of the April 2012 administrative decision to reopen the claim to establish eligibility to nonservice-connected VA pension benefits, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1970 to December 1971. He also had additional service of an unverified nature and duration in the United States Naval Reserves. This matter comes to the Board of Veterans' Appeals (Board) from a June 2015 administrative decision by a Department of Veterans Affairs (VA) Pension Management Center (PMC) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. Jurisdiction of the Veteran’s appeal was later transferred to a Regional Office (RO) of the AOJ, from which it was certified to, and received by, the Board. In August 2016, the Veteran requested to participate in a Board hearing conducted by a Veterans Law Judge (VLJ). Such a hearing was scheduled to be completed in August 2019; however, earlier that month, the Veteran’s representative informed VA that he no longer wished to participate in such a hearing. Accordingly, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704 (d) (2019). Characterization of an issue on appeal In December 2014, the Veteran submitted a completed VA Form 21-537EZ (version June 2014) (Application for Pension) accompanied by a written statement clarifying that he was seeking special monthly pension benefits based on the need of aid and attendance. The Board has expanded the Veteran’s appeal to include entitlement to nonservice-connected pension benefits and special monthly pension at the housebound rate, as the former is a perquisite of the award the Veteran is seeking, and the latter is a lesser, included award of what the Veteran is seeking. Further, since entitlement to service connection for nonservice-connected VA pension benefits, a prerequisite award to the benefit currently being sought by the Veteran, was previously denied by the AOJ in a final administrative decision, the must first submit new and material evidence pertinent to this issue so that it can be reopened and adjudicated on the merits. As such, the Veteran’s December 2014 claim has been bifurcated and expanded as stated on the title page. 1. Whether new and material evidence has been received by VA subsequent to the appeal period of the April 2012 administrative decision sufficient to reopen a previously-denied claim to establish eligibility to nonservice-connected VA pension benefits Pertinent procedural regulations provide that “[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108].” 38 U.S.C. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). The law authorizes the payment of a nonservice-connected disability pension to a wartime Veteran who has the requisite service and who is permanently and totally disabled. Generally, 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) at or above 65 years of age or permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. § 3.3 (a)(3). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2019). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2012). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b) (2019); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Petition to reopen The Board concludes that, since the prior final denial in April 2012, VA has received evidence which is new and material and raises a reasonable possibility of substantiating the Veteran’s claim to establish eligibility to nonservice-connected VA pension benefits. As such, the claim is reopened. Pertinently, the Veteran’s initial claim to establish eligibility to nonservice-connected VA pension benefits was previously denied by the AOJ in a final April 2012 administrative decision because evidence of record reflected that the annual income of the Veteran and his wife exceeded the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. The Veteran did not express disagreement with this determination or submit new and material evidence pertinent to this issue during the appeal period. As such, the April 2012 administrative decision is final with respect to the Veteran’s initial claim. 38 U.S.C. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). As outlined in the Introduction, in December 2014, the Veteran submitted a formal claim seeking special monthly pension benefits based on the need of aid and attendance, which includes the perquisite of establishing eligibility to nonservice-connected VA pension benefits. Throughout the pendency of the appeal, the AOJ did not mention the February 2012 denial of the Veteran’s initial claim and/or whether he had submitted pertinent to and material evidence to reopen such. Rather, the Veteran’s December 2014 claim and resulting appeal were denied because the Veteran did not submit a VA Form 21-527EZ in support of such. Regardless of the above facts, the Board is not bound by any AOJ determination concerning whether the Veteran’s petition to reopen his previously-denied claim should be granted, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The basis of the prior final denial by the AOJ in April 2012 is articulated, above. In order for the previously-denied claim to be reopened, evidence must have been added to the record since the April 2012 administrative decision that addresses this basis. Pertinently, evidence received by VA since the April 2012 administrative decision decision includes the Veteran’s December 2014 VA Form 21-527EZ, showing that his wife was no longer receiving a $1,000 income from another source that she was receiving at the time of the April 2012 administrative decision. This evidence is considered “new,” as it was not previously considered by VA, and “material” as it raises the reasonable possibility of substantiating the previously-denied claim by showing that the annual income of the Veteran and his wife may no longer exceed the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. The Board thus finds that new and material evidence has been submitted to reopen the issues to establish eligibility to nonservice-connected VA pension benefits. On that basis, the issue reopened, and the appeal is granted to that extent only. REASONS FOR REMAND 1. Entitlement to nonservice-connected VA pension benefits, to include a special monthly pension based on housebound status or the need for the aid and attendance Although additional delay of readjudication of the Veteran’s appeal is regrettable, the Board concludes that a remand is necessary in order to correct crucial procedural and evidentiary inadequacies. As noted above, the Veteran filed a formal claim for VA pension benefits on a VA Form 21-527EZ in December 2014, along with supporting medical evidence and an explanation of the benefits he was seeking. The Board notes that this formal claim was submitted by the Veteran on the, at the time, most current VA form pertaining to VA pension benefits. The Veteran’s file includes a March 2015 rating decision reflecting that nonservice-connected VA pension benefits were granted, effective from December 30, 2014 – the date that the AOJ received the Veteran’s formal claim. Curiously, it does not appear that the Veteran or his representative was notified of this rating decision, and the file is devoid of any evidence that such benefits have been paid to the Veteran. Rather, an AOJ employee noted in a March 2015 rating decision that a VA opinion should be sought concerning whether the Veteran met the medical requirements of the award of special monthly pension based on the need of aid and attendance. In April 2015, after the necessary VA opinion had been requested, the AOJ sent the Veteran a letter noting that additional evidence was needed to process and adjudicate his claim. He was instructed to “Complete all items checked in red on the enclosed VA Form 21-527EZ – Application for Pension, page 7. Return the completed form to us.” It is unclear why this was necessary, as the AOJ does not note any discrepancy with the December 2014 form that the Veteran had previously submitted in support of his claim. However, it is clear that the “Enclosures” section of this letter does not reflect that a VA Form 21-527EZ was sent to the Veteran at this time. Further, as noted above, in the June 2015 administrative decision and May 2016 Statement of the Case (SOC), the AOJ did not discuss the merits of the Veteran’s claim or the information contained in the December 2014 VA Form 21-527EZ. Instead, the AOJ denied the Veteran’s claim and resulting appeal because he did not respond to the April 2015 request for a VA form. This calls into question whether the May 2016 SOC meets the legal requirements of such a readjudication under § 19.29 (2018). With the above in mind, the Board also observes that the Veteran has not been an active participant in substantiating his appeal for benefits. In addition to his lack of response to the April 2015 request for additional information, there is currently insufficient evidence to determine whether the $7,000 expense to Baptist Hospital was paid, and if so, remains unreimbursed. Along these lines, the Board notes that the file is devoid of any direct contact from the Veteran since August 2016. On remand, the Veteran is encouraged to consult his accredited representative and cooperate with the AOJ’s requests for information in a timely manner, as VA’s duty to assist him is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000). Lastly, given the progressive nature of the Veteran’s pancreatic disease, the Board concludes that another VA opinion should be obtained concerning whether the Veteran has met the criteria for the award of special monthly pension based on housebound status or the need for the aid and attendance. To ensure that the examiner offering the opinion is fully apprised of the Veteran’s complete disability picture, updated VA and private treatment records must be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers from whom he has sought treatment. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. The AOJ must contact the Veteran and notify him of the information that he must submit in order to substantiate his appeal for the benefits he is seeking (nonservice-connected pension and special monthly pension based on housebound status or the need for aid and attendance). Along with the above notice letter, the AOJ must provide the Veteran with any version(s) of all VA Form(s) that he must complete and submit to substantiate his appeal. *The Veteran is encouraged to actively participate in substantiating his appeal by providing the requested information in a timely manner. This includes completing and submitting any VA form(s) he is provided and supplying VA with any necessary documents pertaining to the net worth, annual income, and medical expenses (paid and unpaid) for he and his wife since December 30, 2014. The Veteran is encouraged to consult his accredited representative for assistance, if necessary. 4. Thereafter, the AOJ must transfer the Veteran’s file to an appropriate VA clinician. After a review of the record on appeal, the examiner should opine as to (1) whether the Veteran requires aid and attendance to perform routine activities of daily living and (2) whether he is substantially confined to his dwelling and immediate premises due to disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. *If it is felt that a physical examination of the Veteran is necessary in order to undertake the above, such must be scheduled, and the Veteran must be notified of the time and place to report for such. 5. Thereafter, the AOJ must readjudicate the Veteran’s appeal. If any benefit sought on appeal (nonservice-connected pension or special monthly pension based on housebound status or the need for the aid and attendance) remains denied, a Supplemental Statement of the Case (SSOC) discussing the evidence of record under the controlling VA laws must be issued to the Veteran and his accredited representative, and they should be afforded the requisite opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.