Citation Nr: 1301636 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 05-37 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for tendonitis, right shoulder. 3. Entitlement to service connection for pes planus. 4. Entitlement to service connection for a sinus disorder. 5. Entitlement to service connection for allergies. 6. Entitlement to service connection for non-service-connected VA disability pension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1994 through January 1995, and again from April 1996 through April 1998, with one year 3 months inactive service between those periods and additional unverified service with the Army National Guard from approximately October 2000 through October 2003. This matter comes to the Board of Veterans' Appeals (Board) from August 2005 and February 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This Board previously remanded the claims in August 2008 and February 2010 to afford the Veteran a Board hearing and VA examinations, respectively. Board hearings were scheduled for October 2009 and May 2010. Notice regarding the latter hearing was provided to her and her representative in April 2010. The Veteran failed to report to the scheduled hearing and failed to explain her absence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). The RO made numerous attempts to notify the Veteran of scheduled VA examinations scheduled pursuant to Board remands; however, she failed to report to the examinations. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that asthma is related to service. 2. The preponderance of the evidence is against a finding that tendonitis, right shoulder is related to service. 3. The preponderance of the evidence is against a finding that pes planus is related to service. 4. The preponderance of the evidence is against a finding that a sinus disorder is related to service. 5. The preponderance of the evidence is against a finding that the current allergies are related to service. 6. The Veteran's nonservice-connected disabilities do not permanently preclude her from engaging in all forms of substantially gainful employment consistent with her age, education, and work experience. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C.A. § 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for right shoulder tendonitis have not been met. 38 U.S.C.A. § 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for pes planus asthma have not been met. 38 U.S.C.A. § 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for a sinus disorder have not been met. 38 U.S.C.A. § 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 5. The criteria for service connection for allergies have not been met. 38 U.S.C.A. § 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 6. The criteria for the award of a non-service-connected VA disability pension have not been met. 38 U.S.C.A. §§ 1501, 1502, 1521, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.340, 3.342, 4.3, 4.7, 4.15, 4.17 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). May 2004, May 2005, and March 2006 letters satisfied the duty to notify provisions regarding the service connection claims, and an October 2005 letter satisfied the duty to notify provisions regarding the non service connected pension claim. The claims were most recently re-adjudicated in an April 2012 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a May 2005 letter, the RO informed the Veteran that it could not locate any of her STRs, and asked her to submit other pertinent evidence regarding her in-service treatment, including buddy certificates or affidavits pertaining to her in-service treatment. In response, the Veteran submitted numerous statements from her friends and family noting that her claimed conditions began during or shortly after service. In a July 2005 Formal Finding on the Unavailability of Service Records, the RO determined that the Veteran's service treatment records (STRs) for her periods of active and reserve service are unavailable. The Veteran's personnel records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Numerous VA examinations were conducted to assess the nature and etiology of the Veteran's claimed disabilities in connection with the pension claim. The Veteran did not appear at VA examinations scheduled pursuant to the Board remand intended to obtain opinions in connection with the service connection claims. The record includes documentation of the RO's efforts to confirm the Veteran's address in connection with scheduling the examinations. A March 2010 Report of Contact documents a telephone conversation with the Veteran in which she confirmed her mailing address. In December 2010 the RO notified the Veteran, at the address she provided, that a local VA medical facility would schedule her for an examination. A December 2010 document of record from a VA medical center (VAMC) in Dallas, Texas, shows that the Veteran failed to report to her scheduled September 2010 examination. A document dated in December 2010 noted that the RO attempted to contact the Veteran by phone and mailed her a letter to notify her of scheduled January 2011 examinations, but her phone number was not correct. A February 2011 Report of General Information documents the RO's efforts to contact the Veteran at four different telephone numbers in the record. A December 2011 document from a VAMC also noted that the Veteran failed to report to several VA examinations. Additionally, an October 2012 document mailed from the RO to the Veteran was returned by the postal service as undeliverable; forwarding time expired. The "duty to assist is not a one-way street" and the Veteran is obligated to cooperate in the development of her pending claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board must decide the service connection claims based on the evidence of record. See 38 C.F.R. § 3.655(b). Regarding her claim of non service connected pension, various examinations were conducted to assess her employability. A VA general medical examination was conducted in February 2009, and the examiner noted a review of her claim file, conducted a physical examination, and provided a cogent rationale for his medical conclusion. Thus, the record does not reflect that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran did not appear at any subsequently scheduled VA examinations, so there are no additional medical opinions available to consider. See Wood, 1 Vet. App. at 193. In October 2005, the Veteran reported that she applied for benefits from the Social Security Administration (SSA), but also indicated that she was not in receipt of such benefits. Subsequent evidence of record showed that the Veteran was working full time. Given that the Veteran indicated that she was denied SSA benefits in 2005 and was working full time subsequent to that time, there is no suggestion that records held by SSA would be pertinent to the current claims of service connection or for her non service connected pension claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). There is no indication in the record that any additional evidence relevant to the issues decided is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Claims Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). "Active military service" is defined by VA law and regulations. Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23)(C); 38 C.F.R. § 3.6(d). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., the Veteran's period of active duty) does not obviate the need to establish that the claimant is also a "Veteran" for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is premised on that periods of ACDUTRA OR INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415 (1998). As noted above, the Veteran's STRs from active service and periods of ACDUTRA and INACDUTRA are not available for review. In a case in which a claimant's service records are unavailable through no fault of her own, there is a heightened obligation for VA to assist the Veteran in the development of her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board's analysis has been undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather obligates the Board to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran filed a claim for service connection for the disabilities discussed herein in February 2004. At that time, she noted that her bronchial asthma began in January 2000, her right shoulder disorder began in June 2002, and her pes planus disorder began in September 1998. She could not recall when her sinus disorder or allergies began. An Army National Guard Retirement Points History Statement shows that from October 2000 to February 2001 she earned 17 inactive duty training points, from February 2001 to February 2002 she earned 35 inactive duty training points and 17 active duty training points, and from February 2002 to March 2002 she earned 5 inactive duty training points. Additionally, an Army National Guard Retirement Points Statement dated in April 2005 shows that on various days from 2000 to 2002 she earned single inactive duty training points for what appears to be monthly weekend drills, and earned 2 active duty for training points on May 31 and June 1, 2001, and 15 active duty points from June 2-16, 2001. Post-service medical evidence does not reflect asthma, right shoulder, pes planus, allergies, or sinusitis symptomatology for at least several months after discharge from active service in April 1998. The first medical evidence of treatment for, or a diagnosis of, asthma and rhinitis in the claims file is a December 1998 report from Darnall Army Community Hospital, which noted that the Veteran was given an assessment of bronchitis and had a history of asthma and allergies and was instructed on using an inhaler. The first medical evidence of a sinus disorder in the claims file is an April 2000 record noting an assessment of sinusitis and bronchitis. The first medical evidence of treatment related to pes planus in the claims file is a May 2001 treatment record from a Fort Hood, Texas, orthotics lab noting that the Veteran had orthotics shaped and her cross trainers adjusted. June 2001 Darnall Army Community Hospital treatment records noted that the Veteran used Albuterol and was treated for allergies, and April 2002 Darnall Army Community Hospital records noted the Veteran was asthmatic. The first medical evidence of a right shoulder disorder is a July 2001 private treatment report showing complaints of non-traumatic right shoulder pain for the past week. Subsequent VA and private treatment records show that the Veteran was diagnosed with history of bronchial asthma, mild right shoulder impingement sydrome, moderate pes planus, and chronic allergies and sinusitis. The Veteran was afforded a VA General Medical examination in July 2004 during which she reported that she developed asthma, flat feet, right shoulder tendonitis and ear infections during service. Following physical examination, the diagnoses included mild impingement syndrome right shoulder; moderate pes planus, asymptomatic; history of bronchial asthma with normal pulmonary function test on examination; and chronic allergies, sinusitis and ear infections. The examiner did not offer any opinions as to etiology of any of the diagnosed conditions and it is unclear from the report whether the examiner had access to the claims folder. A February 2009 VA General Medical examination conducted to determine the Veteran's employability included the Veteran's report that asthma was diagnosed "sometime after the military." Diagnoses included asthma and sinus condition. A joints examination conducted that same day included findings related to the right shoulder, without history of onset or opinion as to etiology. The Veteran reported that she was diagnosed with bilateral pes planus in service and continued to have problems with her feet. The diagnosis was bilateral pes planus, with no opinion as to etiology. In this decision, the Board has considered the lay evidence as it pertains to the issues. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that she experiences, such as shortness of breath, sneezing, nasal congestion, or a painful shoulder or feet, at any time because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The first recorded symptomatology relating to asthma, right shoulder, pes planus, sinus, and allergies conditions comes some 8 months or more after discharge from active service in April 1998. The December 1998 private treatment record noted that the Veteran had a history of asthma and allergic rhinitis, however whether this history extended into the Veteran's active service or began after cannot be determined based on the medical evidence of record and would require the Board to speculate. During a July 2004 VA audiology examination the Veteran reported that her problems with allergic rhinitis and chronic postnasal drainage congestion originated during her last year on active duty, and during a July 2004 VA general medical examination she reported having problems with asthma when she was in service and developed flat feet and right shoulder tendonitis while in the service. During February 2009 VA examinations she reported that she was diagnosed with asthma sometime after the military, and that she was diagnosed with bilateral pes planus while in the service. The Veteran submitted numerous lay statements from her friends and family in July 2005. T.J. reported that he has known the Veteran for 10 years and her condition started some 2 or 3 months after she was in the Army and that she sometimes could not breathe and had to go to the hospital. D.H. and B.F. reported that they have known the Veteran for 15 years and her condition started some 2 or 3 months after she was in the Army and that she sometimes could not breathe and had to go to the hospital. B.K., her husband, reported that he had known the Veteran for 5 years and she had bronchial asthma, carpal tunnel, flat feet, sinus trouble, and right shoulder tendonitis as long as he has known her. Finally, a statement from her grandfather, K.L., noted that the Veteran was hardly sick as a child and in her second year in the Army she started becoming ill with step throat, sinus infections, bronchitis, and was diagnosed with bronchial asthma. Thus, in certain statements, as part of the current VA disability compensation claim, the Veteran has asserted that her symptoms of her claimed disabilities have been continuous since service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of her claimed disabilities since service separation. Further, the Board concludes that her assertions of continued symptomatology since active service, while competent, are not credible. In her February 2004 claim for service connection she noted that her bronchial asthma began in January 2000, her right shoulder disorder began in June 2002, and her pes planus disorder began in September 1998, however during a July 2004 VA general medical examination she reported having problems with asthma when she was in service and developed flat feet and right shoulder tendonitis while in the service. During her February 2009 VA examination she reported that she was diagnosed with flat feet in the service. Similarly, in her Form 21-256 she reported that she could not recall when her sinus disorder or allergies began, but during a July 2004 VA audiology examination she reported that her problems with allergic rhinitis and chronic postnasal drainage congestion seemed to have originated during her last year on active duty. Additionally, during a February 2009 VA examination she reported that she was diagnosed with asthma sometime after the military rather than during service as she did during her July 2004 VA general medical examination. Furthermore, the July 2005 lay statements from her friends and family indicated that her asthma condition started some 2 or 3 months after she was in the Army, which also contradicts her reports that it began during service and the statement from her grandfather that she was diagnosed with bronchial asthma during her second year in service. These inconsistencies in when the Veteran reported when her disabilities began contained in her written statements, the lay statements of record, and what she reported to VA examiners weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since active service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds her current recollections and statements and those of her friends and family to be internally inconsistent with other statements of record. For this reason, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, however, as discussed above, the Veteran did not appear at her scheduled VA examinations and the Board must decide her claim based on the evidence of record. See 38 C.F.R. § 3.655(b). There is no competent evidence attributing her claimed disabilities to active service despite her contentions to the contrary. Regarding her claimed asthma, allergies, and sinus disorder, during her July 2004 VA examination, the examiner noted that the Veteran had smoked one to one and a half packs of cigarettes per day for the past 15 years. The examiner noted that the Veteran had a history of bronchial asthma and symptoms of shortness of breath everyday. It is likely that a lot of her bronchial irritation was brought on by her long history of smoking. Similarly, regarding her chronic allergies and sinusitis, the examiner opined that a lot of her problems were brought on by chronic airway irritation from cigarette smoking and she also had two cats that she kept indoors; cat dander is highly allergenic. Given that the Board must decide her service connection claims based on the evidence of record, the adequacy of the July 2004 is immaterial as the Board tried to obtain new examinations and the Veteran failed to report to them. Nonetheless, despite not noting a review of the claim file, the examiner interviewed the Veteran and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Therefore, the Board finds the VA examiner's opinion to be of some probative value regarding the etiology of her asthma, allergies, and sinus disorder. The Board notes that the evidence of record reflects that the Veteran has used tobacco; it is unclear if her use of tobacco began in service or prior to it. However, her service connection claim for asthma, chronic allergies, and a sinus disorder was received in 2004; therefore, the Board need not consider whether her claimed asthma, chronic allergies, and a sinus disorder are related to smoking in service as indicated by the July 2004 VA examination. See 38 C.F.R. § 3.300 (service connection will not be considered for injury or disease attributable to a Veteran's use of tobacco during service for claims received by VA after June 9, 1998). The Board has also considered the Veteran's statements asserting a nexus between her currently-diagnosed asthma, right shoulder tendonitis, pes planus, sinus disorder, and allergies and service. While the Board reiterates that she is competent to report symptoms as they come to her through her senses, the claimed asthma, right shoulder tendonitis, sinus disorder, and allergies are not the types of disorders that a lay person can provide competent evidence on questions of etiology or specific diagnosis as such subjects are not within the realm of the personal knowledge of the Veteran as a lay person. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Davidson v. Shinseki, 581 F.3d 1313 (2009);Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the Board cannot give decisive probative weight to the opinions of the Veteran or her friends or family about the etiology of her claimed disorders, because they are not qualified to offer such opinions. In certain instances, however, where the disability at issue has "unique and readily identifiable features" that are capable of lay observation-such as flat feet-lay evidence may be competent to establish diagnosis and/or etiology. See Falzone v. Brown, 8 Vet. App. 398, 405-06 (1995). However, despite her competence as a lay person to diagnose pes planus in service, as discussed above, the Board has rejected that the credibility of the Veteran's statements that her flat feet or pes planus disability began during service. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. It is noted that the Veteran has not alleged that any of her claimed disabilities are a result of a injury or disease during a specific period of ACDUTRA or INACDUTRA or that they were otherwise incurred during, or were aggravated by, a specific period of ACDUTRA or INACDUTRA. Rather she has made statements and submitted lay evidence that all of her claimed disabilities incurred in, or are the result of, active service. Nor is there any medical evidence or other competent lay evidence, including a continuity of symptomatology or statements from friends or family, suggesting that they are related to a period of ACDUTRA or INACDUTRA. Thus, service connection is not warranted based on her periods of ACDUTRA or INACDUTRA. Pension Claim The Veteran contends that she is unable to work due to her disabilities. Nonservice-connected pension benefits are payable to a Veteran who served for ninety (90) days or more during a period of war, which is not in dispute here, and who was permanently and totally disabled due to nonservice-connected disabilities that are the 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 and Part 4, see also Brown v. Derwinski, 2 Vet. App. 444, 446 (1992). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321 (a), Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. To be eligible for VA pension, the evidence of record must demonstrate that the Veteran is permanently and totally disabled for nonservice-connected disabilities that are the not the result of her own willful misconduct. For the purposes of pension benefits, the person shall be considered to be permanently and totally disabled if such individual is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from (1) any disability which is sufficient to render it impossible for the average person to obtain 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 the VA Secretary to be of such nature or extent as to justify a determination that persons suffering there from are permanently and totally disabled. See 38 U.S.C.A. § 1501 (a); 38 C.F.R. §§ 3.340 (b), 4.15. One way for a Veteran to be considered permanently and totally disabled for VA pension purposes is to satisfy the "average person" test. 38 U.S.C.A. § 1502 (a) and 38 C.F.R. § 4.15. See 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 evidence does not show, and the Veteran does not claim, that she meets any of these criteria. Alternatively, all Veterans who are basically eligible for pension benefits and who are unable to secure or 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 rated permanent in 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 for reason of such disability. Prior employment or unemployment status is immaterial if in a judgment by a rating board the Veteran's disabilities render him or her unemployable. 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 rated 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 a 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 for reason of her disabilities, age, occupational background, and other related factors, a permanent and total disability rating for pension purposes may be assigned on an extraschedular basis. See 38 C.F.R. § 38 C.F.R. § 3.321 (b), 4.17 (b). 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. The record shows that the Veteran was born in September 1974, is 38 years old and completed the 12th grade in school. Service connection is not in effect for any disabilities. The record includes various nonservice-connected disabilities. The RO has assigned disability ratings of 0 percent each for the Veteran's tendonitis right shoulder, pes planus, sinus condition, and allergies, and a10 percent rating for asthma, which are not service connected disabilities. Disabilities considered for pension purposes only include depressive disorder, rated at 10 percent, GERD, rated at 10 percent, and carpal tunnel syndrome, right, rated at 0 percent. The RO noted her combined evaluation for pension purposes is 30 percent. See 38 C.F.R. § 4.16. Therefore, the evidence must show that she is permanently and totally disabled from nonservice-connected disabilities not due to her 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 does not meet the schedular requirements for consideration for nonservice-connected pension benefits. 38 C.F.R. §§ 4.16, 4.25. 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. In an October 2005 Income-Net Worth and Employment Statement, the Veteran reported that she was not working and became totally disabled in 2000. Her last reported employment was at Wal-Mart as a stocker and cashier. Her reported illnesses in the past year were related to asthma and gynecological issues. She has also reported that her fibromyalgia and depression render her unemployable. In a July 2006 written statement she reported that she cannot keep a job due to her disabilities and had not worked since 2004. A July 2004 VA audiology examination noted that examination of the ears, nose, and throat was conducted. A diagnosis of allergic rhinitis was given. The examiner opined that the Veteran's current employment, social, and daily activity functioning should not be adversely affected by the disabilities being evaluated. A May 2006 letter from the Veteran's VA treatment provider, who is a physician, noted that the Veteran was under his care for depression, gastroesophageal reflux disease (GERD), hyperlipidemia, carpal tunnel syndrome, intermittent mild asthma, and allergic rhinitis. She reported that she has been unable to work for the past 2 years due to recurrent illness. The provider opined that the Veteran was presently capable of fulfilling the duties required for full time or part time employment. A February 2009 VA examination report noted that a physical examination and range of motion testing of the Veteran's right shoulder, right arm, and feet were conducted. Diagnoses of right carpal syndrome, right shoulder impingement with rotator cuff tendonitis, and bilateral pes planus and recent right foot ligamentous injury were given. The examiner opined that the Veteran was not currently unemployable due to her right shoulder condition, feet, or carpal tunnel sydrome as she was currently working for the last year at Home Depot and this does not prevent her from working. A VA mental disorder examination was conducted in February 2009. The Veteran reported she had been working at Home Depot for almost a year as a cashier. She was working two jobs, 80 hours a week, up until being fired a couple of months ago from one of them. The examiner noted that this was in contrast to her claim for pension. A mental status examination was conducted. The Veteran reported that she was laid off from Game Stop warehouse where she worked for a year, but later admitted she was fired for improperly using her employee discount card to buy video games for her family members. Before she was fired she was working two jobs, 80 hours a week. Prior to moving to Texas she was not working for three years, but started working because she had to pay child support. It was noted that in response to a question as to how her mental or emotional problems affected her work, the Veteran indicated that she got bored too easily at jobs and decided to quit. The examiner noted that this did not appear to be a mental illness issue. She also says she often plays video games on her phone at work, and has been reprimanded by Home Depot. A diagnosis of mood disorder NOS was given and a global assessment of functioning (GAF) score of 60 was assigned. The examiner opined that the Veteran's psychiatric condition does not percent her from working and she was working 80 hours a week for a number of months functioning well at work, but made some bad decisions that cost her the job. A VA general medical examination yielded diagnoses of asthma, depression, hyperlipidemia, GERD, sinus condition, and fibromyalgia. The examiner noted that the Veteran was working 40 hours per week at Home Depot for the past year. The examiner opined that none of the Veteran's conditions make her unemployable; she is currently working. To be entitled to a permanent and total rating for pension purposes, the evidence must show that the claimant is unable to secure or follow substantially gainful employment for reason of such disability. In this case, while the Veteran's physical and psychiatric disabilities undoubtedly would make her work more difficult, there is no medical evidence to the effect that they would prevent her from working. The Veteran's work history shows that as of her last VA examinations in February 2009, she was in fact working full time at Home Depot and was working 80 hours a week prior to that. Additionally, the Veteran is a high school graduate and has worked in a warehouse, as a cashier, and as a stocker. All of the VA medical professionals who have assessed the impact of her disabilities on her ability to work have concluded that she was fully capable of engaging in employment. There is no medical evidence of record showing that her physical or psychiatric disabilities preclude her from securing and following substantially gainful employment. The Board has also considered the Veteran's lay contentions and acknowledges that she is competent to give evidence about what she has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that her assertions as to the functional effects of her conditions and employability lack credibility given that she was working full time at the time of her last examination. Her statements that she is unemployable are outweighed by the numerous VA medical opinions of record regarding her employability and her own statements to those examiners about her employment history. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for asthma is denied. Entitlement to service connection for tendonitis, right shoulder, is denied. Entitlement to service connection for pes planus is denied. Entitlement to service connection for a sinus disorder is denied. Entitlement to service connection for allergies is denied. Entitlement to service connection for nonservice-connected VA disability pension is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs