Citation Nr: 1815674 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-16 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected pension benefits prior to October 25, 2017. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1975 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Pension Management Center (PMC) at the Regional Office (RO) in St. Paul, Minnesota. The Veteran requested a Board video conference hearing in his May 2014 substantive appeal. Subsequently, a travel Board hearing was scheduled for which the Veteran did not appear. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(d) (2017). The Board notes that neither the Veteran nor his representative has requested another Board hearing. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained in these systems to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran's nonservice-connected disabilities for pension purposes, prior to October 25, 2017, include PTSD with major depression, knee arthralgia, Wolff-Parkinson-White Syndrome, hypertension, inguinal hernia, and gastroesophageal reflux disease (GERD). 2. Effective October 25, 2017, the Veteran was service-connected for PTSD rated as 100 percent disabling. 3. Prior to October 25, 2017, the Veteran did not have one nonservice-connected disability ratable at 60 percent or more, or a single disability rated at 40 percent or more with additional nonservice-connected disabilities to bring the combined disability rating to 70 percent or more. 4. The Veteran's disabilities are not productive of total disability, and are not sufficient to preclude the average person from following a substantially gainful position. 5. The Veteran is not unemployable by reason of disability, age, education, and occupational history. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits prior to October 25, 2017, have not been met. 38 U.S.C. §§ 1502, 1521, 1523 (2012); 38 C.F.R. §§ 3.340, 3.342, 4.15, 4.16, 4.17, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2017). The Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Law and Analysis The Veteran maintains he is entitled to a nonservice-connected pension. The Board notes that in a March 2018 rating decision, the RO granted service connection for post-traumatic stress disorder (PTSD) at 100 percent disabling, effective October 25, 2017. The claim on appeal was, thus, captioned to reflect consideration of his receipt of VA compensation benefits at a 100 percent rate from October 25, 2017, a rate higher than the nonservice-connected pension rate. Basic entitlement to non-service-connected pension exists if a veteran meets the service requirement and is permanently and totally disabled, not the result of the veteran's willful misconduct. To meet the service requirement a veteran must have served in the active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521; 38 C.F.R. § 3.3 (a)(3). In this case, the Veteran served on active duty for 90 days or more during a period of war; and therefore, meets the service requirement for nonservice-connected pension benefits. VA will consider a veteran to be permanently and totally disabled if he is (1) a patient in a nursing home for long-term care because of a disability, or determined to be disabled for Social Security Administration (SSA) purposes. 38 U.S.C. § 1502; 38 C.F.R. § 3.3. Evidence of record indicates the Veteran is not in a nursing home. There is conflicting evidence as to what amount the Veteran receives from the Social Security Administration. In the absence of these circumstances, a finding of permanent and total disability requires rating each disability under the appropriate diagnostic code of the Schedule for Rating Disabilities, to determine whether the veteran has a combined 100 percent schedular rating for pension purposes. Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). Permanent and total disability evaluations for pension purposes will be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary, or familial conditions, as well as for disabilities that require indefinite periods of hospitalization. 38 C.F.R. § 3.342 (b). In this case, the Veteran does not have a combined 100 percent schedular rating for pension purposes prior to October 25, 2017. Alternatively, permanent and total disability for pension purposes may be established even absent a combined 100 percent schedular evaluation by showing that the Veteran is unemployable as a result of disability reasonably certain to continue throughout the life of the person; or suffering from a lifetime disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1502; 38 C.F.R. §§ 3.3, 3.340, 4.15. 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. 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; will be considered to be permanent total disability. 38 C.F.R. § 4.15. Here, the circumstances listed do not apply, and therefore the determination as to whether the Veteran meets the criteria for a permanent and total rating is based on his disability evaluations. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. 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. 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 unemployable. See 38 C.F.R. § 4.17. For the purposes of determining whether or not a veteran is permanently and totally disabled, ratings for service-connected disabilities may be combined with ratings for non-service-connected disabilities. 38 U.S.C. § 1523. If a veteran's combined disability is less than 100 percent, as in this case, he must be unemployable by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.341. Where the evidence of record establishes that an applicant for pension fails to meet the disability requirements based on the percentage standards, but meets the basic entitlement criteria, and is found to be unemployable by reason of his disabilities, age, occupational background and other related factors, the claim will be referred for extraschedular evaluation. 38 C.F.R. §§ 3.321 (b)(2), 4.17(b). Initially, the Board notes that the Veteran's DD Form 214 reflects that the Veteran's period of active duty service was at least 90 days and commenced on May 5, 1975. As such, the Board finds the Veteran meets the initial threshold of having 90 days of active duty commencing during a period of war. The Board will now consider whether the Veteran is permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct. In March 2013, the Veteran submitted an application for entitlement to a nonservice-connected pension. A March 2013 VA treatment record notes the Veteran was working at an auto body shop. A VCAA notice was sent to the Veteran in April 2013. The Veteran submitted a response letter in April 2013 in which he stated that he is entitled to a pension as he volunteered for Vietnam. The Veteran stated that he worked in auto body for eight dollars per hour but had to wear a belt for his hernia which was painful. In a May 2013 decision, the RO denied the Veteran's claim for nonservice-connected pension, noting that no medical evidence showing disability of such severity as to meet the requirements for a rating of permanent and total disability. The RO noted that, for pension purposes, it considered the Veteran's disabilities of PTSD with major depression as 30 percent disabling, knee arthralgia as 10 percent disabling, Wolff-Parkinson-White Syndrome as 10 percent disabling, hypertension as 10 percent disabling, inguinal hernia as 10 percent disabling, and GERD as 10 percent disabling. The Veteran submitted a notice of disagreement (NOD) in August 2013 in which he stated that he was unemployed. VA attempted to schedule a compensation and pension examination for the Veteran, but it was cancelled due to an undelivered notification. Documentation in the claims file at the time indicates the Veteran's address was unknown. In a September 2014 report of general information, it was noted that the Veteran was scheduled to be released form incarceration in September 2014. In a June 2016 statement in support of claim, the Veteran stated that the compensation and pension examination for which he was scheduled coincided with his being incarcerated and requested that a new examination be scheduled. A September 2016 VA treatment record notes the Veteran reported that he had to "evict families from a four family apartment unit". Another September 2016 VA treatment record indicated that the Veteran indicated that he had a boss at that time. A December 2016 VA treatment record notes the Veteran had an interview for a full time job scheduled for the following day. A December 2016 VA treatment record notes the Veteran stated that he had a recent job interview, that he works on cars, and that he "[had] been collecting tools so [he] could start working again." A January 2017 VA treatment record notes the Veteran reported not being able to be seen by mental health "due to his work schedule." A February2017 contact brief from the Veteran's representative notes the Veteran was not receiving social security income. A February 2017 VA treatment records note the Veteran had missed two days of work at the Amarillo VA. A March 2017 VA treatment record notes the Veteran stated that he wanted to quit his job at VA and that he was looking for another job. A March 2017 VA treatment record notes the Veteran reported that he believed he would lose his job that coming April. A March 2017 VA treatment record notes the Veteran reported that he was working. An April 2017 VA treatment record notes the Veteran was working and was hoping to obtain a permanent job with VA in the engineering department. The Veteran was afforded a VA mental disorders examination in April 2017. A diagnosis of major depressive disorder was noted. Occupational and social impairment with reduced reliability and productivity was noted, as was the Veteran's participation in work therapy through the VA. The Veteran expressed a desire to find a permanent job. An August 2017 VA treatment record notes the Veteran reported that he received a job offer and will be working for MET. A September 2017 VA treatment record notes the Veteran reported that he will be receiving Social security disability income and Social Security income. A September 2017 VA treatment record notes the Veteran reported he is no longer working for MET and is "taking it easy." An October 2017 VA treatment record notes the Veteran reported anger with VA as they would not rehire him and denied "drinking on the job." In a November 2017 VA PTSD examination, it was noted that the Veteran had been working through a VA work therapy program but lost that job and is not currently working. The Veteran reported an interest in volunteering for the fire department. Occupational and social impairment with reduced reliability and productivity was noted. The Board notes that throughout the course of the appeal, there are numerous references to the Veteran riding a bicycle. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to nonservice-connected pension benefits prior to October 25, 2017. The evidence shows that the Veteran does not meet the necessary schedular criteria for a permanent and total disability rating prior to October 25, 2107. In addition, the preponderance of the competent evidence shows that the Veteran is not prevented from following substantially gainful employment due to a disability or combination of disabilities. Here, the weight of the evidence throughout the course of the Veteran's appeal shows that he has been able to work and has at times maintained stable employment. As noted above, there is evidence showing that the Veteran has reported he was working during the period at issue. While the Veteran has asserted that nonservice-connected pension benefits are warranted, the Board finds that the weight of the evidence does not demonstrate that the claimed benefits are warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to nonservice-connected pension benefits prior to October 25, 2017 is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs