Fast Letter 06-28-06

[Wings]

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DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington, D.C. 20420

December 22, 2006

 

Director (00/21) In Reply Refer To: 211A

All VA Regional Offices and Centers Fast Letter 06-28

 

 

SUBJ: Hartness v. Nicholson

 

This letter contains guidance for adjudicating special monthly pension (SMP) cases where the veteran is 65 years of age or older.

 

 

Background

 

On July 21, 2006, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a decision in the case of Hartness v. Nicholson (2006). The veteran had been found entitled to non-service-connected disability pension benefits under the provisions of title 38 U.S.C. § 1513(a) based on being over age 65. He subsequently submitted a private medical report in support of a claim for SMP. He was determined to be 70 percent disabled due to loss of vision and entitlement to SMP was denied. The CAVC reversed a May 2004 Board decision affirming the denial and remanded the matter to the Board.

 

The CAVC determined that the Board erred because it failed to apply section 1513(a) when considering whether Mr. Hartness was entitled to SMP under title 38 U.S.C. § 1521(e). The CAVC held that “application of section 1513(a) results in the exclusion of the permanent-and-total-disability requirement in section 1521(a) and (e) when considering whether a veteran 65 years of age or older is entitled to non-service-connected disability pension.” The CAVC interpreted section 1513(a) as requiring an award of SMP to a wartime veteran “if, in addition to being at least 65 years old, he or she possesses a minimum disability rating of 60 percent or is considered permanently housebound as defined under 38 U.S.C. § 1502©.”

 

 

Statutes and Regulations at Issue

 

Title 38 U.S.C. § 1513(a), Service Pension, requires that VA pay an eligible wartime veteran who is 65 years of age or older pension at the rates prescribed by section 1521 and under the conditions (other than the permanent and total disability requirement) applicable to pension paid under that section.

 

 

Title 38 U.S.C. § 1513(b) provides that if a veteran is eligible for pension under both section 1513 and section 1521, pension “shall be paid to the veteran only under section 1521 of title 38 United States Code.”

 

Title 38 U.S.C. § 1521(a), Disability Pension, provides that VA must pay a pension to an eligible wartime veteran “who is permanently and totally disabled from non-service-connected disability not the result of the veteran’s willful misconduct.” Section 1521(e) specifically provides for an increased pension if the veteran has a disability rated as permanent and total and (1) has additional disability or disabilities independently ratable at 60 percent or more, or (2) by reason of a disability or disabilities, is permanently housebound.

 

Title 38 U.S.C. § 1502© provides that a veteran is considered permanently housebound when “the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.”

 

Title 38 CFR § 3.351(d) provides VA’s interpretation of the special monthly pension provisions under title 38 U.S.C. § 1521.

 

 

Application of Hartness to pension claims

 

There are four distinct types of claims where the provisions of Hartness could be raised.

 

1.      A claim is received from a veteran over age 65 with no accompanying medical evidence and no claim for special monthly pension (SMP).

 

Process the claim as you currently do, with entitlement based on qualifying service and income.

 

2.      A claim is received from a veteran over age 65 with accompanying medical evidence and a specific claim for SMP.

 

Congress has provided two means of establishing entitlement to non-service-connected disability pension: being age 65 or older, which does not contain a disability requirement (see section 1513(a)); and having disability sufficient to establish permanent and total disability (see section 1521(a)). In the example cited, the potential exists to establish pension entitlement under both sections. Pension will only be established under the age 65 provisions if the medical evidence is insufficient to establish entitlement based on disability. In such a case, there is the potential for future application of Hartness. If the medical evidence submitted is sufficient to establish entitlement to pension based on disability, entitlement to SMP requires that the veteran have a disability rated permanent and total and either have additional disability ratable at 60 percent or more or be permanently housebound.

 

3.      A claim for SMP is received from a veteran who has previously been awarded pension under the age 65 provisions of section 1513(a).

 

Obtain medical evidence, including a VA examination if necessary. Determine eligibility for aid and attendance (A&A) and/or housebound. If entitlement to A&A is not shown, but there is disability ratable at 60 percent or more, entitlement to housebound is established.

 

4.      A claim for SMP is received from a veteran who was awarded pension under the disability provisions of section 1521 prior to age 65 and who is now over the age of 65.

 

Evaluate entitlement to SMP under the disability provisions of section 1521.

 

 

Effective dates

 

Under the holding of a precedent opinion of the Office of the General Counsel (VAOPGCPREC 9-94), decisions of the CAVC invalidating VA regulations or statutory interpretations do not have retroactive effect in relation to prior "final" adjudications of claims, but should be given retroactive effect as they relate to claims still open on direct review. Accordingly, the holding in Hartness applies only to claims still open on direct review as of the date of the decision, July 21, 2006, and claims filed on or after that date.

 

 

Questions

 

Questions concerning this fast letter and other issues related to Hartness should be submitted to the VAVBAWAS/CO/21Q&A mailbox.

 

 

 

/S/

Bradley G. Mayes, Director

Compensation & Pension Service