Citation Nr: 0000028 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 99-02 989 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from July 1962 to July 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a series of rating decisions of the RO. In a June 1996 decision, the RO denied the veteran's claim seeking non-service connected pension benefits as it was determined that his income was excessive. His claim was subsequently denied by a September 1996 decision, which determined that he was not shown to be disabled by his non-service connected disorders. In September 1996, the veteran submitted a letter indicating his disagreement with the prior decision. In February 1997, the veteran's appeal was administratively closed due to excessive income, and that denial was continued in a March 1997 decision. The veteran again submitted a letter of disagreement in March 1997. In September 1997, the RO continued the denial of his claim due to excessive income. The veteran submitted a notice of disagreement with that decision in October 1997. A statement of the case was issued in January 1999. A substantive appeal was received in February 1999. The record reflects that the veteran was afforded a video conference hearing before the undersigned Acting Member of the Board in May 1999, but due to an inaudible recording, no transcript of that hearing was available. The veteran's claim was remanded by the Board in August 1999 in order to provide the veteran with another hearing opportunity. Following the Board's remand, the veteran was afforded another video conference hearing before the undersigned Acting Member of the Board in October 1999. A transcript of that hearing is of record. The case has now been returned to the Board. In its August 1999 remand, the Board noted that the veteran had apparently, within his February 1999 substantive appeal, raised a claim of clear and unmistakable error in a prior September 1996 rating decision that denied entitlement to non-service connected pension benefits on the basis that the veteran was not permanently and totally disabled. This matter was referred to the RO for clarification. However, upon further reflection, as noted above, the Board finds that the veteran's current claim has been in constant development since the September 1996 rating decision. Accordingly, the Board now notes that there is no pending claim of clear and unmistakable error and no further clarification is required. Finally, received at the RO in January 1999 and then forwarded to the Board was a letter from the veteran reporting a change in his income. Received at the Board in April 1999 was a letter from a former employer of the veteran. Received at the Board at the time of the October 1999 hearing, was another statement pertaining to the veteran's income. None of this information was previously reviewed by the RO. The veteran indicated in a signed waiver that he wished to waive RO consideration of this evidence in accordance with 38 C.F.R. § 20.1304(c). REMAND The veteran contends, in essence, that he is entitled to nonservice-connected pension benefits. Specifically, he asserts that his current income level makes him eligible to receive pension benefits and he further argues that his level of disability is such as to make him unable to work. A review of the claims folder reveals that the case is not ready for appellate review. A veteran who served in the active military service for 90 days or more during a period of war, who is permanently and totally disabled from non-service connected disability not the result of the veteran's own willful misconduct, is entitled to pension payable at the rate established by law. 38 U.S.C.A. § 1521(a), (c), and (j) (West 1991). The law provides that pension benefits may be granted to a veteran for nonservice-connected disabilities, if, inter alia, certain net worth requirements are met and the veteran does not have income in excess of the applicable maximum annual pension rate specified by the regulations. 38 C.F.R. §§ 3.3, 3.23 (1999). In general, the veteran's income includes payments of any kind from any source during a 12-month annualization period. 38 C.F.R. § 3.271(a) (1999). There are certain excludable expenses from the veteran's countable income, to include unreimbursed medical expenses. 38 C.F.R. § 3.272(g) (1999) In the case at hand, the RO has found the veteran's income to be excessive. However, the veteran contends that his income has decreased and his deductible expenses have increased since the RO's last rating decision. The September 1997 RO decision denied the veteran nonservice-connected pension on the basis that his income had exceeded the limit set by law for receipt of nonservice-connected pension. This decision was based on a income verification eligibility report submitted by the veteran in July 1997. A subsequent income eligibility verification form was submitted in December 1997 which is the most recent net worth information available in the claims folder. In a statement dated in January 1999, the veteran indicated that his weekly unemployment benefits had been decreased. A letter dated in March 1999 was received from the veteran's employer, which stated that the veteran was laid off because he was physically unable to work as a trim carpenter. At the October 1999 video conference hearing before the undersigned Acting Member of the Board, the veteran testified that he was currently working on a part-time, temporary basis. As such, the Board finds that the RO should obtain current financial information from the veteran and that then re-evaluate whether such income information meets the eligibility requirements for receipt of nonservice-connected pension benefits. Moreover, a review of the record indicates that the veteran was afforded a VA examination in March 1998 to determine the nature and severity of his claimed disabilities, but the RO has not subsequently rated each diagnosed disability in accordance with the applicable schedular criteria. In this regard, the Board notes that the Court of Appeals for Veterans Claims (Court) has held that each disability involved in a pension case must be assigned a disability rating and that the Diagnostic Codes used in a denial of pension claim should be discussed. Roberts v. Derwinski, 2 Vet. App. 387 (1992). In addition, the Court has held that a claim for pension benefits must be addressed in accordance with the average person and unemployability standards. 38 U.S.C.A. § 1502(a) (West 1991); Brown v. Derwinski, 2 Vet. App. 444 (1992); 38 C.F.R. §§ 3.321, 4.15, 4.17 (1999). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should supply the veteran with a new income eligibility verification form (VA Form 21-0516-1) in order to obtain accurate information as to his current net worth and income. The veteran should also be asked to provide current information of any exclusions from income, such as unreimbursed medical expenses, and such information should be reported on a Medical Expense Report (VA Form 21-8416). A copy of the completed forms from the veteran should be made part of the claims folder. 2. The RO should undertake any further warranted development of the claims file, to include obtaining copies of any recent medical treatment records and if appropriate, conducting another VA examination of the veteran. After undertaking such appropriate development, and after reviewing all medical evidence of record, a rating decision should then be prepared which identifies all of the veteran's non-service connected disabilities and assigns a percent disability evaluation to each. 3. Thereafter, the RO should readjudicate the issue of the veteran's entitlement to non-service connected pension, including whether the veteran's income exceeds statutory limitations for nonservice-connected pension benefits for the annualization period at issue. In this regard, the RO should clearly explain how it arrives at the income and unreimbursed medical expense figures that it used to calculate the veteran's countable income for the 12 month annualization period at issue. 4. Following completion of the above actions, if the determination remains unfavorable to the veteran, he and his representative should be furnished a Supplemental Statement of the Case. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until further notice is issued. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. B. LEMOINE Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).