Citation Nr: 21024323 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-09 978 DATE: April 22, 2021 ORDER An effective date earlier than January 18, 2013, for the award of VA pension benefits to include based upon claim of clear and unmistakable error in an October 2008 Pension Management Center (PMC) decision is denied. FINDING OF FACT The Veteran was not in fact permanently and totally disabled or unemployable between 2009 and 2013. CONCLUSION OF LAW The criteria for an effective date earlier than January 18, 2013, for the award of VA pension benefits have not been met. 38 U.S.C. §§ 1502, 5101, 5110; 38 C.F.R. §§ 3.105, 3.340, 3.400, 4.15. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to August 1983 and from November 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 PMC decision. The Veteran presented sworn testimony in support of her appeal during a January 2021 hearing before the undersigned Veterans Law Judge. The VA provides several different types of benefits to Veterans who are eligible for them. VA compensation benefits are paid for service-connected disability which impacts average earning capacity. VA pension benefits are paid for Veterans who served during wartime and are unable to work due to permanent and total disability. Pension benefits are a subsistence payment intended to provide for the basic needs of Veterans who cannot work. Compensation benefits may supplement earnings, while pension benefits are intended to provide basic support for those who cannot work and have no other unearned income. A Veteran who served during a period of war shall be considered to be permanently and totally disabled if such Veteran is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from: 1) 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 disabled person; or 2) any disease or disorder determined by the Secretary to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C. § 1502; Dilles v. Brown, 5 Vet. App. 88 (1993). This statute is implemented by Department of Veterans Affairs (VA) regulations. Objective standards for total disability ratings are found in 38 C.F.R. §§ 3.340(b) and 4.15 (1994). The provisions of 38 C.F.R. § 4.15 include the following language: Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule. Historically, the Veteran submitted an original claim for compensation to VA in May 2008. On the claim document, she reported that she was working at the time. The Regional Office (RO) denied the claims for service connection in an October 2008 decision. The decision document itself contains no indication that pension benefits were also adjudicated. However, the October 2008 notification letter in which she was informed of the RO’s decision, also states clearly that pension benefits were denied as well, because (the RO concluded) that the Veteran did not have the requisite service to support pension benefits. It is unclear why the RO took up the issue of entitlement to pension benefits in the notice letter, as the Veteran had not explicitly requested pension benefits. In any case, the Veteran did not appeal this decision and it thus became final one year after she was notified of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran did not correspond with or otherwise contact the VA until January 2013, when she submitted a claim for pension benefits, predicated upon unemployability. In developing and reviewing the claim, the PMC reviewed the October 2008 decision and determined that they had been wrong about the Veteran’s service; that she did in fact, have the requisite service to support pension benefits. In a May 2013 letter, the PMC acknowledged the clear and unmistakable error and offered the Veteran the opportunity to provide income, net worth, and medical expense information back to May 2008. The letter clearly explained that an effective date of May 2008 could be awarded if the Veteran otherwise met the requirements for a grant of pension benefits between 2008 and 2013. The letter also provided clear instructions for the documentation needed to support her pension eligibility since her original 2008 claim. Because the PMC acknowledged the legal error made in 2008, the case is properly before the Board on this basis. Although the Veteran provided the requested documentation, it showed that she had been working during the time period at issue, as she had earned income throughout. Review of the income information which she submitted shows that she supported herself and her children until 2013 with a combination of earnings and unemployment compensation. She did not work in 2013. Therefore, the PMC granted pension benefits with an effective date of January 18, 2013. The Veteran’s implicit assertion in support of her current appeal for an earlier effective date is that she was working because the VA had denied pension benefits, and that she would not have needed to work but for the RO’s clear and unmistakable error in failing to properly analyze her service dates, as qualifying her for VA pension benefits. In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C. § 5110; 38 C.F.R. § 3.151. See Wells v. Derwinski, 3 Vet. App. 307 (1992). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. In cases of a reversed decision which involved clear and unmistakable error, the effective date for benefits must have the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). However, an award of disability pension benefits may not be effective prior to the date entitlement arose. 38 C.F.R. § 3.400(b). Thus, the only legal basis for the assignment of an earlier effective date for the award of pension benefits would be a finding of clear and unmistakable error in the May 2008 denial of pension benefits. Previous determinations which are final and binding, including decisions of service connection and degree of disability will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The Court has stated that “[c]lear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). A claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet. App. 310 (1992). “To prove the existence of [clear and unmistakable error] as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision.” Bustos v. West, 179 F.3d 1378, 1380 (1999). In this case, because the PMC erroneously analyzed the Veteran’s service dates, the remedy would be to award an earlier effective date IF she otherwise qualified for pension at the earlier date. As discussed above, the pension benefit is predicated upon unemployability, permanent and total disability, and income status. Because a clear and unmistakable error analysis must be accomplished using only the law and facts as they stood at the time of the challenged decision, it is important to note that the law regarding eligibility for pension has not changed, and in 2008 was the same as is set forth above. Medical records dated in 2007 reflect that at that time, the Veteran was struggling to manage a seizure disorder, hyperglycemia related to diabetes and a cystic mass of the pancreas. Records also reflect anemia, headaches, uterine fibroids, hypertension, and plantar fasciitis. In 2007 she underwent a surgical procedure relating to her pancreas, for which she was able to take Family and Medical Leave absence from work. Her medical records contain several statements signed by her medical care providers authorizing the Veteran’s return to work following medical procedures related to her pancreatic mass. Perhaps the most relevant evidence at the time of the October 2008 RO decision was the Veteran’s own report that she was employed. Her report is supported by the evidence showing she was able to return to work following the pancreatic surgery. Because the pension benefit is intended for Veterans who are unemployable due to permanent and total disability, a grant of pension benefits would have been inappropriate in 2008. The evidence shows without doubt that the Veteran was employable, actually working, and there is no indication that she was permanently and totally disabled at that time. Therefore, although the RO erroneously determined the Veteran was ineligible for the pension benefit on account of her service, this error was not outcome-determinative; it did not manifestly change the outcome of a prior decision. Bustos. The evidence of record did not support a finding that the Veteran was entitled to the pension benefit. Therefore, an earlier effective date based upon a contention of clear and unmistakable error in the October 2008 decision is not warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.