Citation Nr: 20007917 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-32 696 DATE: January 30, 2020 ORDER Entitlement to an effective date of March 24, 2013 for the grant of nonservice-connected pension (NSC pension) is granted. REMANDED Entitlement to service connection for an acquired psychiatric condition, claimed as bipolar disorder, is remanded. FINDINGS OF FACT 1. The Social Security Administration found the Veteran to be disabled as of March 24, 2013. Prior to that date, permanent and total disability from nonservice-connected disabilities was not shown. 2. From March 24, 2013, the Veteran’s non-service-connected disabilities permanently preclude him from engaging in all forms of substantially gainful employment consistent with his age, education, and work experience. CONCLUSION OF LAW The criteria for being permanently and totally disabled from nonservice-connected disabilities have been met as of March 24, 2013. 38 U.S.C. §§ 1521, 5107; 38 C.F.R. §§ 3.3, 3.102, 3.340, 3.342, 4.10, 4.15, 4.16, 4.17. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1971 to November 1980, with subsequent service in the National Guard. This appeal comes before the Board of Veterans’ Appeals (Board) from several a June 2016 and January 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama. Entitlement to an effective date of March 24, 2013 for the grant of nonservice-connected pension (NSC pension). The Veteran asserts that he is entitled to receive NSC pension payments from March 24, 2013 and thereafter. In his May 2017 Notice of Disagreement, the Veteran also asserts that he is entitled to an earlier effective date of May 24, 2013 for the award of his NSC pension, as this is the date that the Social Security Administration (SSA) determined that he was entitled the SSA benefits. He has not requested an effective date prior to this date. Relevant Law NSC pension benefits may be paid to a veteran of a period of war who meets statutorily defined service, net worth, and annual income requirements, and who is permanently and totally disabled from NSC disability that is not the result of the veteran’s willful misconduct. 38 U.S.C. § 1502(a), 1503, 1521(a), (j). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person: or (4) suffering from 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 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 C.F.R. § 3.3(a)(3)(vi)(B). A pension is available to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of his own willful misconduct. 38 U.S.C. § 1521(a); 38 C.F.R. § 3.342(a). There is total disability when there is present any impairment of the mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A disability is permanent if the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b); Talley v. Derwinski, 2 Vet. App. 282, 285 (1992). Under 38 C.F.R. § 4.17, a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation, in the judgment of the rating agency, because of his disabilities. Where there is a single disability, it must be ratable at 60 percent or more; and if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. When the percentage requirements are met and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 38 C.F.R. §§ 4.16(a), 4.17. In adjudicating pension claims, the RO must assign a percentage evaluation for each identifiable disability. Roberts v. Derwinski, 2 Vet. App. 387 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). The effective date for a claim for disability pension received on or after October 1, 1984 is the date of receipt of the claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(ii). However, an award of disability pension may not be effective prior to the date entitlement arose. 38 C.F.R. § 3.400(b)(1). If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the pension award may be made effective from the date of receipt of the claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 C.F.R. § 3.400(b)(1)(2)(A)(B). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A “claim” or “application’ is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. “Date of receipt” generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). Unless specifically provided otherwise, the effective date of an award of a claim “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application.” 38 U.S.C. § 5110(a). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis The Veteran was awarded entitlement to NSC pension benefits effective December 1, 2013. The Veteran was found to be entitled to a NSC pension, effective from December 1, 2013, which was the date that the Social Security Administration began paying compensation after a five-month mandatory delay from the date of onset. Based upon a longitudinal review of the Veteran's claims file, the Board concludes that the Veteran has been permanently and totally disabled due to nonservice-connected disabilities from March 24, 2013, but no earlier. The record reflects that SSA determined that the Veteran was found disabled as of March 24, 2013. Thus, pursuant to 38 C.F.R. § 3.3(a)(3)(vi)(B)(2), the Veteran is considered permanently and totally disabled as of March 24, 2013, as that is the date on which he was determined disabled by the Commissioner of Social Security. Based on this evidence, and in resolving all doubt in his favor, the Board finds that an effective date of March 24, 2013, for the award of NSC pension is warranted. As explained above, the effective date for an award of NSC pension will be the date of receipt of the claim or the date the veteran became permanently and totally disabled if, within one year of that date, the veteran was unable to file a claim in a timely manner by reason of his disability. In this case, the Veteran meets the criteria, on a facts-found basis, for NSC as of March 24, 2013, when the SSA determined that his non-service-connected disabilities precluded him from employment. Thus, the Board concludes that the Veteran has met the criteria for being permanently and totally disabled for NSC pension purposes since March 24, 2013, but no earlier, and his NSC pension claim is granted as to that element only, and for that period only. Again, this decision does not speak to whether the income requirements have been met to sustain entitlement to NSC benefits at any time, as the agency of original jurisdiction has not yet developed or adjudicated that issue. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric condition, claimed as bipolar disorder, is remanded. The Board finds that remand for additional development and examination is warranted before adjudication of the Veteran’s appeal. The Veteran contends that he suffers from bipolar disorder which either occurred in service or is otherwise related to his service. His service treatment records do not reflect that he had complaints or treatment for any psychiatric conditions. In a February 2015 correspondence, Dr. M.C.M., diagnosed the Veteran with bipolar disorder and opined that he has been diagnosed since he was “very young.” Dr. M.C.M. did not provide a thorough rationale, nor address the absence of mental health complaints or treatment in service. Given such, the Board finds that Dr. M.C.M.’s opinion is inadequate for VA purposes. However, as it raises the possibility that the Veteran had an acquired psychiatric condition which occurred in service, the Board finds that a VA examination is warranted. The Veteran has not been provided an examination to assess his claims for service connection for an acquired psychiatric disorder, to include bipolar disorder. The private medical opinion provided in February 2015 is insufficient to warrant adjudication on only its merits. As such, the appropriate examination must be afforded upon remand. McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). The matters are REMANDED for the following action: 1. Obtain any updated VA and private medical records. 2. Upon completion of the above to the extent necessary, schedule the Veteran for a VA examination with respect to the Veteran’s claim for service connection for an acquired psychiatric disability, claimed as bipolar disorder. The examiner is required to review the claims file. Upon review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a current psychiatric disability? (b.) If a current psychiatric disability exists, indicate whether it is at least as likely as not that such was incurred during service? The examiner is requested to explain the onset of bipolar disorder based on the entire evidentiary record, including the report of symptoms observed by lay persons. In so doing, the examiner must discuss the medical opinion of Dr. M.C.M., who diagnosed the Veteran with bipolar disorder and opined that he has been diagnosed since he was “very young.” The term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, the examiner must provide an explanation for the basis of that determination. A complete rationale must be given for all opinions and conclusions expressed. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.