Citation Nr: 0721669 Decision Date: 07/19/07 Archive Date: 08/02/07 DOCKET NO. 05-03 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to nonservice-connected disability pension. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from August 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The veteran testified in a videoconference hearing before the undersigned veterans law judge in May 2007. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Additional development is necessary to ensure an informed decision on the veteran's claim for nonservice-connected pension benefits. The law authorizes the payment of a pension to a veteran of wartime who has the requisite service and who is permanently and totally disabled from non-service-connected disability and not due to the veteran's own willful misconduct. The amount of pension payable is the difference between the veteran's countable annual income and the maximum annual rate permitted by law, and no pension is payable if the veteran's income exceeds the maximum annual rate, as set forth in the governing statutes and regulations. 38 U.S.C.A. §§ 1502, 1503, 1521 (West 2002); 38 C.F.R. § 3.271 (2006). An October 2002 rating decision denied the veteran's claim of entitlement to nonservice-connected disability pension. The RO determined that the evidence failed to establish that the veteran was unable to follow a substantially gainful occupation due to permanent and total disability. The veteran has since submitted additional information regarding his disabilities. A Social Security questionnaire, dated in June 2006, reflects diagnoses of PTSD, ADHD, depression and chronic shoulder pain. A physician opined that the veteran is incapable of performing even low stress jobs. Outpatient VA medical records note a medical history of an abuse of controlled substances. As noted above, disability of misconduct origin may not be considered in a claim for pension benefits. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the effect of the person's willful misconduct. 38 C.F.R. § 3.301(c)(3). It does not appear that the veteran's disabilities have been rated and a determination made as to the effect on employment. Therefore, it is necessary for the veteran to undergo a VA examination to determine the nature and severity of his disabilities and his capacity for employment. Accordingly, the case is REMANDED for the following action: 1. Obtain authorization for any outstanding VA or private treatment records, and attempt to obtain any records identified by the veteran. 2. Schedule the veteran for appropriate VA examinations to determine the nature and severity of all disorders claimed in conjunction with his claim for nonservice- connected pension benefits, to include: (1) orthopedic disorders (2) psychiatric disorders and (3) any other disabilities. The claims file should be made available to the examiners in conjunction with the examinations. 3. The examiner(s) should diagnose all present disorders and address the effect each disability has on the veteran's capacity for gainful employment. 4. If possible, the examiner(s) should distinguish impairment which is due to polysubstance abuse from that due to other disabilities. 5. Thereafter, the RO should readjudicate the claim on appeal based on all of the evidence of record. If the disposition of the claim remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case and afford them an applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2006).