Citation Nr: 21042241
Decision Date: 07/12/21	Archive Date: 07/12/21

DOCKET NO. 16-05 795
DATE: July 12, 2021

REMANDED

Entitlement to nonservice-connected disability pension is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from September 1974 to January 1976.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 decision of the Department of Veterans Affairs (VA).  The case was remanded for additional development in July 2019.

Entitlement to nonservice-connected pension is remanded.

The Board notes that the July 2019 remand noted the Veteran's claim had been denied based upon incarceration for a felony and that he was seeking relief in Federal court regarding his custodial status.  The remand also noted that a determination for the Veteran's eligibility for nonservice-connected disability pension was a separate matter requiring further development and readjudication.  A remand confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders.  See Stegall v. West, 11 Vet. App. 268 (1998).

Subsequent to the Board's remand, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that VA law would be frustrated if a statute's application turned on the fortuity of the particular facility in which a convicted veteran was incarcerated.  See Philbrook v. Wilkie, 32 Vet. App. 342 (2020).  The Board finds, therefore, that the matter as to the Veteran's custodial status for his incarceration is not a pertinent matter in dispute for VA nonservice-connected disability pension purposes.

The Board also notes that a May 2020 supplemental statement of the case found nonservice-connected disability pension was not warranted because of the Veteran's continued incarceration.  No separate adjudication was provided as to his eligibility for pension.  While the applicable VA laws and regulations generally prohibit payment to incarcerated veterans, they do not preclude consideration of eligibility for nonservice-connected disability pension.  See Valchar v. Shinseki, No. 12-2431 (Dec. 18, 2013) (a nonprecedential case referenced here for information purposes only).  The medical evidence in this case is insufficient to make a decision as to whether the Veteran is permanently and totally disabled due to nonservice-connected disabilities not of his own willful misconduct.  Therefore, further development is required for an adequate determination.

The matter is REMANDED for the following actions:

1. Obtain a medical opinion based upon a review of the available record addressing whether the Veteran is permanently and totally disabled, and whether any such disability is shown to be due to his own willful misconduct.

Provide a rationale to support the opinion(s).  

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

L. Chu

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Douglas

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.