Citation Nr: 21025621 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-37 533 DATE: April 28, 2021 REMANDED Entitlement to non-service-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1971 to May 1973, to include service in Vietnam. His decorations include the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In October 2015, the Veteran’s attorney withdrew from representation. The Veteran is currently proceeding pro se. In January 2019, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See November 2020 supplemental statement of the case (SSOC). The January 2019 Board decision also remanded issues of entitlement to service connection for an eye disorder, a sleep disorder, acid reflux, a skin disorder, a headache disorder, peripheral neuropathy of the upper extremities, and an acquired psychiatric disorder. Those issues will be addressed in a separate Board decision. Entitlement to non-service-connected pension benefits is remanded. Pursuant to 38 U.S.C. § 1521(a), non-service-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of his own willful misconduct. A claimant is considered permanently and totally disabled if he/she is: (1) a patient in a nursing home for long-term care because of 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: (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. § 1521; 38 C.F.R. § 3.3(a)(3). Permanent and total disability will also be presumed for a veteran who is age 65 or older. 38 U.S.C. § 1513(a); 38 C.F.R. §§ 3.3(a)(3)(vi)(A), 3.314(b)(2). A veteran is entitled to pension only if his income is not in excess of the applicable maximum annual pension rate (MAPR), as specified at 38 C.F.R. § 3.23 and changed periodically, as reported in the Federal Register. See 38 U.S.C. § 1521. Unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, may be excluded from an individual’s income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). In this case, the Veteran served for more than 90 days during the Vietnam War era. Accordingly, he meets the initial threshold requirement for pension in that he served for more than 90 days during a period of war. The record reflects that VA received the Veteran’s claim for non-service-connected benefits in June 2012. The record also shows that Veteran turned 65 in October 2016. Accordingly, permanent and total disability is presumed from that date. As for the period prior to October 2016, a June 2015 VA examiner diagnosed the Veteran with spondylosis of the lumbar spine and opined that the non-service-connected lumbar spine disability prevented the Veteran from securing or following a substantially gainful occupation, and that the lumbar spine disability was likely to be permanently disabling. Considering that and other evidence, and resolving reasonable doubt in the Veteran’s favor, the Board finds that he was permanently and totally disabled for the period on appeal prior to October 2016. The remaining question is whether the Veteran’s income has been less than the relevant MAPRs. In that regard, the record does not contain evidence pertaining to the Veteran’s income, net worth, and unreimbursed medical expenses for the entire rating period on appeal from June 2012. A remand is required in order to afford the Veteran an opportunity to submit such evidence. This matter is REMANDED for the following action: 1. Provide the Veteran with VA Forms 21P-0516-1 (Improved Pension Eligibility Verification Report) and 21P-8416 (Medical Expense Report), or other relevant income and expense forms, and request that he complete and submit those forms for period(s) on appeal from June 2012. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An   appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.