Citation Nr: 22017173 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 12-23 513 DATE: March 24, 2022 REMANDED Entitlement to payment of VA non-service-connected disability pension benefits as of June 15, 2018 is remanded. REASONS FOR REMAND The Veteran had active military service from December 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s July 2011 rating decision, in which the Veteran's claim for VA non-service-connected disability pension benefits was denied on the basis that he was not permanently and totally disabled. The Veteran appealed and the Board remanded his claim for additional development in December 2014 and April 2017. In a December 2018 rating decision, the RO granted entitlement to a permanent and total disability rating for VA pension purposes effective June 15, 2018 and sought development of the Veteran's income, net worth and expenses. Unfortunately, entitlement to payment of pension benefits was denied in a January 2019 supplemental statement of the case (SSOC) because of insufficient evidence of the Veteran's income and net worth. In a March 2021 decision, the Board finally denied pension benefits prior to June 15, 2018 finding no permanent and total disability existed prior to that date and remanded the question of entitlement to payment of pension benefits thereafter for additional development of the Veteran's countable income. The Veteran's claim for entitlement to payment of pension benefits is now back before the Board. Entitlement to payment of VA non-service-connected disability pension benefits as of June 15, 2018 is remanded. Unfortunately, the Board finds that it must remand again for compliance with its prior remand. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that all the development requested in the March 2021 remand was not accomplished. Specifically, the RO did not request information from the Veteran seeking to clarify his spouse's employment and did not ask for documentation of the Veteran's family income. Moreover, the Board requested that the RO advise the Veteran of specific items, which was also not accomplished. Rather, it appears that the duty to assist letter that was sent the Veteran in June 2021 was merely a form letter and the only modifications to the letter were for the reporting periods for which the Veteran was asked to provide his income, net worth and medical expenses. Moreover, the Board requested that all the necessary forms needed to report his income, net worth and medical expenses be provided to him, but finds that only the form needed to provide his income and net worth was sent with the June 2021 duty to assist letter. Furthermore, the June 2021 duty to assist letter sent erroneously listed the periods for which EVRs were sought. In addition to listing the periods asked for in the Board's remand, the RO also included the period of June 15, 2018 to June 8, 2021, which asks for the Veteran's information from the date basic eligibility for pension benefits was granted to the date of the letter. Even if it was proper for the RO to ask the Veteran to provide his income and net worth information to the present, the manner it did so was inappropriate and most likely confusion to the Veteran. The reason for listing the periods is to assist the Veteran in knowing the distinct periods that he needs to submit separate EVRs. By listing the whole period of June 15, 2018 to June 8, 2021, it makes it appear he could submit one EVR for the entire appeal period, which is not correct. Rather, the RO should have added to the list given by the Board the periods of January 1, 2020 to December 31, 2020 and January 1, 2021 to the present to ensure the Veteran understood what specific periods he needed to provide separate EVRs report his income and net worth up to the present. Based on the above findings, the Board finds that its March 2019 remand was not substantially complied with because the letter sent to the Veteran was not designed to obtain all the information and evidence the Board requested. Thus, as the prior remand was not complied with, the Board has no choice but to remand the Veteran's claim again for compliance with the development necessary to provide a full and fair adjudication of the Veteran's appeal. Finally, the Board notes that there is some confusion as to whether the Veteran intends to claim his daughter as a dependent while she was attending school. The Veteran previously submitted evidence indicating that his daughter began college in August 2018 at the age of 21 and that she attended school through December 2019. Unfortunately, he had inconsistently reported her income. Moreover, on the new EVR he submitted in July 2021 for the period of July 1, 2019 to December 31, 2019, he did not report his daughter as a dependent. It is further unclear whether the Veteran has been advised that he may claim an exclusion of some or all of her income earned during the time that she would be considered his dependent pursuant to either subsection (j) or (m) of 38 C.F.R. § 3.272. He should be so advised on remand. The Board strongly encourages the Veteran to seek the help of his appointed representative in responding to future requests for information and evidence regarding his appeal as he has consistently submitted incomplete forms and provided inconsistent information, which has impaired VA's ability to adjudicate his claim. His appointed representative should be able to assist the Veteran in submitting all the information and evidence that VA needs to fairly and appropriately resolve his appeal. The matters are REMANDED for the following action: Contact the Veteran and ask him to provide the following: a) The date(s) that his spouse changed and/or discontinued any employment since June 15, 2018. b) Fully completed VA Forms 21P-517-1 (Eligibility Verification Form for a Veteran with Children) and 21P-8416 (Medical Expense Report) to report his and his family's income, net worth and medical expenses for the periods of June 15, 2018 to December 31, 2018; January 1, 2019 to June 30, 2019; and July 1, 2019 to December 31, 2019. The Veteran should be advised to report an EVR and a Medical Expense Report (if he has any medical expenses) for each identified period. If the RO asks for any subsequent periods, please identify for the Veteran each specific reporting period for which he should provide an EVR and a Medical Expense Report. Do not provide the Veteran with a reporting period longer than 12 months. Furthermore, if anything changes in the status of his dependents, income and/or net worth in the middle of a requested reporting period (e.g., to add his daughter as a dependent due to her starting college on August 27, 2018), the Veteran should be advised that he needs to start a new reporting period and complete a new EVR and Medical Expense Report as of the date of the change. The Veteran should further be advised of the following: He should not report any family income received or medical expenses paid prior to June 15, 2018. He should complete each form currently provided (i.e., not to use forms previously provided). If provided with forms on which the dates are prefilled, he should use those forms unless there was a change in his family's income or his dependents during a specified period. He should not change any prefilled dates on the forms provided but should be provided with a blank form for reporting any periods different from those requested. To assist in ensuring an appropriate counting of his family's income, the Veteran should be asked to provide documentation to support the income and medical expenses he reports to VA. c) Ask the Veteran to clarify if he intends to claim his daughter as a dependent for the time that she attended college prior to when she turned 23 years old and, if so, he should be asked to provide complete and accurate information as to her schooling, income and educational expenses on VA Form 21-674 for each reporting period as appropriate. He should also be advised that he may be eligible for an exclusion of her income from countable income pursuant to subsections (j) or (m) of 38 C.F.R. § 3.272 and how to file for these exclusions. The Veteran should be provided with all applicable VA forms. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.