Citation Nr: 0811893 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-06 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to nonservice-connected pension REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. R. Weaver INTRODUCTION The veteran served on active duty from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied entitlement to nonservice-connected pension. FINDINGS OF FACT 1. The veteran still works whenever possible as a general farm laborer and tractor driver. 2. His moderate obstructive and mild restrictive lung disease and stage 1 hypertension do not permanently preclude him from engaging in all forms of substantially gainful employment consistent with his age, education, and work experience. CONCLUSION OF LAW The criteria for the award of a permanent and total disability rating for nonservice-connected pension purposes have not been met. 38 U.S.C.A. §§ 1502, 1521, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.342(a), 4.15, 4.16, 4.17 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in March 2005 and a rating decision in July 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the February 2006 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The veteran asserts that he is entitled to pension benefits because his respiratory condition makes it hard for him to work. In his February 2006 substantive appeal, the veteran admitted that he is still employed. A pension is available to a veteran who served for 90 days or more during a period of war, who is permanently and totally disabled due to non-service-connected disabilities which are not the result of his own willful misconduct, and who satisfies certain income and net worth requirements. 38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. § 3.3(a)(3). Permanent and total disability may be shown in two ways: (1) the veteran must be unemployable as a result of a lifetime disability (the subjective standard which is based on the disabilities, age, occupational background, and other related factors of the individual veteran whose claim is being adjudicated) or, (2) even if not unemployable, if the veteran suffers from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation (the objective standard which is based on the percentage ratings assigned for each disability from the Schedule for Rating Disabilities). 38 C.F.R. Part 4; Brown v. Derwinski, 2 Vet. App. 444 (1992). The objective standard requires demonstration of specific minimum percentage ratings and the permanence of those percentage ratings for pension purposes. 38 C.F.R. §§ 4.16(a), 4.17. A veteran who does not have a combined 100 percent schedular evaluation may establish that he has permanent and total disability by showing that he meets the percentage requirements of 38 C.F.R. § 4.16. 38 C.F.R. § 4.17. A total disability rating will be assigned when (1) there is one disability ratable at 60 percent or more; or (2) if there are two or more disabilities, at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). When those percentages are met, a total disability rating is assigned where the evidence shows that the veteran is unable to secure and follow substantially gainful employment by reason of disability. The RO may refer the claim to the Director of Compensation and Pension or consideration of a permanent and total disability rating for pension purposes on an extraschedular basis when the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule but has other factors which make him unemployable. The RO will consider factors such as whether the veteran is unemployable by reason of his disability, his age, his occupational background, and other related factors. 38 C.F.R. §§ 3.321(b)(2), 4.16(b); Roberts v. Derwinski, 2 Vet. App. 387 (1992). The significant issue is whether the veteran is capable of performing the physical and mental acts required of employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment, odd-job employment, and employment at half the usual remuneration, however, is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The veteran meets the service requirements for VA pension benefits as he was on active duty from June 1971 to June 1973 during a period of war. 38 C.F.R. § 3.2. He was born in October 1951 and is now 57 years old. He indicated that his highest level of education completed was the 10th grade. In a May 2005 statement, he stated that he works whenever he can as a general farm laborer and tractor driver. VA afforded the veteran an examination in July 2005. The veteran reported that he worked for more than 23 years as a welder. He indicated that he took medication for blood pressure, breathing, gastroesophageal reflux disease, and arthritis, but stopped taking those medications a year ago. He stated that he smoked one pack of cigarettes per week and has shortness of breath with any physical activity. On examination, the veteran's blood pressure was 152/90 in the right arm and 152/88 in the left. He was 6 feet tall and weighed 257 pounds. His gait and posture were normal. The examiner noted some slight expiratory wheezes to the posterior basses of the lungs and slight decreased breath sounds. The veteran's pulmonary function test revealed a forced vital capacity (FVC) of 72 percent of predicted. Forced expiratory volume in one second (FEV-1) was 69 percent of predicted. The ratio of FEV-1 to FVC was 96 percent of predicted. Interpretation was moderate obstructive lung disease, mild restrictive lung disease. The examiner found no evidence of any other major medical condition (specifically no problems with the skin, hemic and lymphatic system, eyes, ears, nose, mouth, throat, cardiovascular system, abdomen, musculoskeletal system, endocrine system, or neurology). The veteran was diagnosed with stage 1 hypertension without medication, smoking usage, moderate obstructive lung disease, mild restrictive lung disease, and slight obesity. The Board finds that the competent evidence of record does not reflect that the veteran has permanent and total disability. He is still employed and is therefore not unemployable as a result of a lifetime disability. The medical evidence also indicates that he does not suffer from a lifetime disability that would render it impossible for the average person with the same disability to follow a substantially gainful occupation based on the percentage ratings assigned for his moderate obstructive and mild restrictive lung disease and stage 1 hypertension. Under 38 C.F.R. § 4.97, Diagnostic Code 6604, the veteran's moderate obstructive and mild restrictive lung disease is evaluated as 30 percent disabling because his FEV-1 is between 56 and 70 percent of what was predicted. The veteran's stage 1 hypertension in noncompensable under 38 C.F.R. § 4.104, Diagnostic Code 7101, because his diastolic pressure is not predominantly 100 or more, his systolic pressure is not predominantly 160 or more, and he does not have a history of diastolic pressure predominantly 100 or require continuous medication for control. Accordingly, the veteran does not have one disability ratable at 60 percent or more, or one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more as required by 38 C.F.R. § 4.16. Similarly, nonservice-connected pension is not warranted on an extraschedular basis because the record does not demonstrate that the veteran is unemployable by reason of his disabilities, his age, occupational background, and other related factors. The Board finds that there is insufficient evidence showing that the veteran is unable to secure and follow substantially gainful employment by reason of his nonservice-connected disabiities. Furthermore, there is no evidence that the veteran's current work as a farm laborer and tractor driver amounts to marginal employment or employment at half the usual remuneration. Since the evidence is not in equipoise, the provisions of 38 U.S.C.A. § 5107(b) regarding resolution of reasonable doubt are not applicable. Hence, the claim for entitlement to a nonservice-connected pension must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to nonservice-connection pension is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs