Citation Nr: 0005636 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 94-01 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty from February 1968 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 1993 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in part, denied entitlement to pension benefits. This Board remanded this matter in February 1996. The requested development has been accomplished and the issue has been returned to the Board for further appellate review. In August 1996 the veteran made a claim for service connection for cancer of the right lung and for a skin rash as a result of exposure to herbicides. The RO denied the veteran's claims in April 1999. The veteran filed a Notice of Disagreement in May 1999 and a Statement of the Case was issued in July 1999. The veteran submitted Substantive Appeal in December 1999 with regard to the pension claim only. He did not address the claims for service connection for cancer of the right lung and a skin rash due to exposure to herbicides in his December 1999 Substantive Appeal. No Substantive Appeal has been filed with respect to these issues and the Board therefore has no jurisdiction to review the RO's evaluation. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202. FINDINGS OF FACT 1. There is evidence of honorable active military service of 90 days or more during a period of war. The veteran's DD 214 indicates that he served on active duty from February 1968 to September 1969, during the Vietnam War. 2. The ratable disabilities of record includes the service- connected disability, residuals of a fractured metatarsal of the left foot and nonservice-connected disabilities, migraine headaches, chronic thoracolumbar syndrome, bilateral hearing loss and mild restrictive lung disease. The combined disability evaluation is 70 percent. 3. The veteran reported no income on his May 1997 Income-Net Worth and Employment Statement. Thus, the veteran's income does not exceed the statutory limit. CONCLUSION OF LAW The claim of entitlement to nonservice-connected pension benefits based on permanent and total disability is well grounded. 38 U.S.C.A. §§ 1521, 5107 (West 1991); 38 C.F.R. § 3.3 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim, which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. A claim for nonservice-connected pension benefits is well- grounded if the following criteria are met: (1) there is evidence of honorable active military service of 90 days or more during a period of war (or discharge or release from service during a period of war for a service-connected disability); (2) there is evidence of permanent and total disability productive of unemployability; and (3) there is evidence of income that does not exceed the statutory limit. Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); see also 38 U.S.C. § 1521 (West 1991); 38 C.F.R. § 3.3 (1999). For purposes of determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran's DD 214 indicates that he served on active duty from February 1968 to September 1969, during the Vietnam War. Thus he served on active duty for 90 days or more during a period of war. The ratable disabilities of record include the service-connected disability, residuals of a fractured metatarsal of the left foot and nonservice-connected disabilities, migraine headaches, chronic thoracolumbar syndrome, bilateral hearing loss and mild restrictive lung disease. The combined disability evaluation is 70 percent. The veteran reported no income on his May 1997 Income-Net Worth and Employment Statement. ORDER The claim of entitlement to nonservice-connected pension benefits based on permanent and total disability is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to nonservice-connected pension benefits based on permanent and total disability is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Subsequent to the Board's February 1996 remand the veteran submitted VA and private medical records. These medical records provide diagnoses of other disorders. These conditions have not been evaluated and assigned a percentage rating by the RO. See Roberts v. Derwinski, 2 Vet. App. 387 (1992). In regard to a claim for pension benefits, the exact nature and degree of severity of the various disabilities is clearly pertinent. Therefore, each claimed disorder must be adequately examined and evaluated by the RO. In the instant case, several disorders have not been adequately evaluated. The disorders were obstructive sleep apnea, a possible seizure disorder, syncopal spells, vertigo, mild sigmoid colon diverticulosis, allergic rhinitis and error of refraction. The veteran submitted page two of a Social Security Administration (SSA) determination dated February 1999. Records pertaining to SSA benefits have not been associated with the record certified for appellate review. Such records may be of significant probative value in determining whether the veteran is unemployable. The United States Court of Appeals for Veterans Claims (Court) held in Lind v. Principi, 3 Vet. App. 493, 494 (1992), that the VA should attempt to obtain records from other federal agencies, including the SSA, when the VA has notice of the existence of such records. See also Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992). Thus, the RO must request complete copies of the SSA records utilized in the SSA determination. The Board regrets the delay involved in remanding this case a second time; however, it firmly believes that the development noted below must be attempted prior to making a final decision in this matter. Under the circumstances of this case, it is found that additional assistance would be helpful, and this case will be REMANDED to the RO for the following: 1. The RO should afford the veteran a complete VA general medical examination, to include but not limited to, a neurologic and other specialist examinations in order to determine the severity of the obstructive sleep apnea, a possible seizure disorder, syncopal spells, vertigo, mild sigmoid colon diverticulosis, allergic rhinitis and error of refraction. All indicated special studies deemed necessary should be accomplished. The claims folder must be made available to the examiners prior to the examinations so that the veteran's entire medical history can be taken into consideration and the examiners are asked to indicate in the examination report that he or she has examined the claims folder, including the veteran's statements. The examiners must render a joint opinion as to the whether these disorders render the veteran unemployable. The factors upon which the opinions are based must be set forth. The examiner should provide a complete rationale for all conclusions reached. 2. The RO should obtain copies of all administrative and medical records compiled and/or utilized by the Social Security Administration in connection with their February 1999 determination. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain records, which are ultimately not obtained, should be documented. 3. When the requested development actions have been completed, the case should be readjudicated by the RO and a rating action prepared which lists all the veteran's disabilities and the percentage evaluations assigned to each. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case which includes the percentage rating for each diagnosed disability, which cites the appropriate diagnostic codes and provides a discussion of their applicability to the veteran's disabilities, and which discusses the application of the two standards (average person and unemployability under 38 U.S.C.A. § 1502 (a) (West 1991); 38 C.F.R. §§ 3.321, 4.15, 4.17 (1999)) by which a permanent and total disability rating for pension purposes may be assigned. The veteran and his representative should then be given an opportunity to respond. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all tests reports, special studies or opinions requested, appropriate corrective action is to be implemented. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. C. P. RUSSELL Member, Board of Veterans' Appeals