Citation Nr: 1222011 Decision Date: 06/22/12 Archive Date: 07/02/12 DOCKET NO. 06-20 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a permanent and total disability rating for nonservice-connected pension purposes. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDING OF FACT The Veteran's innocent disabilities 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 pension purposes have not been met. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.340, 3.342(a), 4.15, 4.16, 4.17 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the Veteran was not provided complete notice with respect to his nonservice-connected pension claim until August 2006, after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. In addition to the Veteran's paper claims file, the Veteran has an electronic claims file known as a Virtual VA file. The Board has reviewed this electronic file, which merely includes evidence already associated with the paper claims file or irrelevant to the claim on appeal. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in July 2009 and December 2010. The Veteran has also been afforded an opportunity for a hearing before a DRO or before the Board, but declined to do so. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Nonservice-connected pension benefits are payable to a veteran who served for 90 days or more during a period of war, which is not in dispute here, and who is permanently and totally disabled due to disabilities that are not the result of his or her own willful misconduct. 38 U.S.C.A. § 1521; see also Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993). If a veteran's combined disability is less than 100 percent, he or she must be unemployable by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342, Part 4; see also Brown (Clem) v. Derwinski, 2 Vet. App. 444, 446 (1992). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2011). To be eligible for nonservice-connected pension, the veteran must be permanently and totally disabled from disabilities that are not the result of willful misconduct. For the purposes of pension benefits, a person shall be considered to be permanently and totally disabled if such person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or has, (1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons with them are permanently and totally disabled. 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 3.340(b), 4.15. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the "average person" test. See 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that based on the evidence of record, the Veteran does not meet any of these criteria. Alternatively, all veterans who are basically eligible for pension benefits and who are unable to secure and follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran's disabilities render him or her unemployable. See 38 C.F.R. § 4.17. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16. Where 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 is found to be unemployable by reason of his disabilities, age, occupational background and other related factors, a permanent and total disability rating for pension purposes may be assigned on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (2), 4.17(b). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate to decide the Veteran's claim. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. The Veteran contends that he is unable to work due to his nonservice-connected posttraumatic stress disorder (PTSD). Upon his July 2005 claim, he indicated that he was self-employed in maintenance, but he submitted no other arguments regarding his nonservice-connected pension claim. The Board initially notes that the Veteran does meet the requirement for war time service, and has had on and off employment throughout this appeal period. However, the Board concludes that the evidence of record does not demonstrate that the Veteran is permanently and totally disabled. In this case, service connection is not currently in effect for any disabilities. The Veteran's nonservice-connected disabilities are listed as degenerative changes of the thoracic spine, rated as 20 percent disabling; degenerative changes of the right wrist, rated as 10 percent disabling; degenerative changes of the cervical spine, rated as 10 percent disabling; personality disorder, rated as 10 percent disabling; and irritable bowel syndrome (IBS), rated as noncompensably disabling. These nonservice-connected disability ratings were confirmed in a January 2012 Supplemental Statement of the Case. The record also shows that the Veteran is not age 65 or older. Therefore, the evidence must show that he is permanently and totally disabled from nonservice-connected disabilities not due to his own willful misconduct. 38 U.S.C.A. §§ 1502, 1513(a), 1521(a); 38 C.F.R. §§ 3.3(a)(3)(vi), 3.342. The Veteran's combined rating for pension purposes is 40 percent, which does not meet the schedular requirements for consideration for nonservice-connected pension benefits. 38 C.F.R. §§ 4.16, 4.25 (2011). However, regardless of the percentage requirements, the Board finds that the evidence of record does not indicate that the Veteran is unemployable; hence, nonservice-connected pension benefits are not warranted. The Veteran was afforded a VA general medical examination in July 2009, during which the examiner diagnosed the Veteran as having resolved IBS, right wrist strain with mild degenerative changes, degenerative changes of the cervical spine with an unremarkable examination, unremarkable examination of the thoracic spine with X-rays showing moderate dorsal kyphosis with mild chronic compressions, and degenerative changes of the lumbar spine with an unremarkable examination. The Veteran reported his last full-time work was at the Biloxi VA Medical Center as part of a transitional program. He was employed in the laundry department while residing in the domiciliary. The Veteran reported being able to perform all of his activities of daily living and able to drive his own personal vehicle. He contends that they only impediment to employment is his PTSD, and he denied any other medical problem that would cause him not to work. Following physical examination and review of the claims file, the VA examiner opined that the Veteran's listed diagnoses would not cause him to be disabled. Noted was his ability to perform his daily activities and drive his own car. The Veteran's pain has been managed without any medication, and he has not required any hospitalization for his diagnosed complaints. Ultimately, the examiner opined that it is less likely than not that the Veteran's IBS, cervical spine, thoracic spine, right wrist, and lumbar spine disabilities would cause him to be permanently and totally disabled. The examiner then went on to say "[t]he [V]eteran is to have a stress disorder secondary to his complaint of PTSD issues, as the only reason he is not able to work." The examiner did not, however, examine the Veteran's psychiatric complaints or provide a diagnosis of the same. The Veteran was afforded a VA psychiatric examination in December 2010, during which the examiner noted the Veteran's in-service diagnosis of personality disorder with elements of immaturity and sociopathy. The Veteran reported a history of on and off work, but indicated that he has been employed at a car wash for the past four years. He told the examiner that he believes the job is going well and this is likely because he only has to interact with one other employee. Following review of the claims file and upon mental status examination, the examiner diagnosed the Veteran as having cannabis abuse, alcohol abuse versus dependence (in remission), and personality disorder, not otherwise specified. The examiner indicated that the Veteran does not meet the DSM-IV criteria for a PTSD diagnosis, and his military stressors do not show any threat to the Veteran's own life. The examiner opined that the Veteran's symptoms of irritability and difficulty getting along with others can be symptoms of PTSD, but are likely better attributed to either his substance use or part of his longstanding personality disorder. The Veteran was assigned a Global Assessment of Functioning (GAF) score of 70, and the examiner found that although the Veteran is socially isolated, he has been able to hold a job at one place of employment for the past four years. The examiner noted that this is a significant improvement over his prior employment history described as transient in nature and for a very short duration. The examiner ultimately opined that the Veteran is not permanently and totally disabled due to a mental disability. In so opining, the examiner pointed to the Veteran's current employment and improvement in employment functioning over the past four years. Further, the examiner noted the Veteran does not have PTSD, but rather a personality disorder and substance abuse issues that are unrelated to his military service. There are no other VA or private treatment records showing that the Veteran is permanently and totally unemployable due to his nonservice-connected disabilities. The Board has considered the Veteran's lay testimony in reaching this conclusion and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran's testimony as to the functional effects of his conditions and employability lack credibility. In this regard, the Board points out that the Veteran stated that he is unable to work due to his PTSD. However, the record shows that the Veteran was employed fulltime at the Biloxi VA Medical Center, and had on and off employment before that. Moreover, the Veteran reported to the December 2010 VA examiner that he had been successfully working at the same place for the past four years and was still currently employed there. In this case, the Veteran's statements that he is unemployable are outweighed by the opinions of the VA examiners and his own reports of current employment. In addition, the July 2009 VA examiner opined that the Veteran's non-psychiatric complaints did not render him unemployable. Such opinions are highly probative, as they reflect the VA examiners' specialized knowledge, training, and experience as to the effects of the Veteran's subjective and objective symptoms on the average person, as well as consideration of all relevant lay and medical evidence of record concerning the effects of such disabilities on the Veteran himself. For these reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A permanent and total disability rating for nonservice-connected pension purposes is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs