Citation Nr: 21015398 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-23 513 DATE: March 17, 2021 ORDER Entitlement to VA non-service-connected disability pension benefits prior to June 15, 2018 is denied. REMANDED Entitlement to VA non-service-connected disability pension benefits as of June 15, 2018 is remanded. FINDING OF FACT Prior to June 15, 2018, the preponderance of the evidence is against finding that the Veteran was unable to secure and follow a substantially gainful occupation due to his nonservice-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to VA non-service-connected pension benefits have not been met prior to June 15, 2018. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.340, 4.17. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from December 1973 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s July 2011 rating decision. The Veteran’s claim was previously remanded by the Board in December 2014 and April 2017. Subsequently, in a December 2018 rating decision, entitlement to a permanent and total disability rating for VA pension purposes was granted effective June 15, 2018. In a January 2019 supplemental statement of the case (SSOC), the RO continued to deny entitlement to pension benefits on the basis that the Veteran was not unemployable prior to June 15, 2018 but denied entitlement to payments of pension benefits thereafter because of insufficient evidence of the Veteran’s income and net worth. Because of the partial grant of a finding of permanent and total disability as of June 15, 2018, the Board has bifurcated the Veteran’s claim into distinct periods of before and after June 15, 2018. As for the development requested in the Board prior remands, the Board finds that substantial compliance with the prior remands has been accomplished. The remands requested development of VA treatment records and adequate VA examination, which was completed after the April 2017 remand. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran’s claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As noted in the Board’s prior remands, the Veteran has requested a hearing before the Board, which was initially scheduled in April 2014, but was changed to June 2014. The Veteran failed to appear for the June 2014 hearing. To date, he has not requested his hearing be rescheduled or shown good cause for his failure to appear for the scheduled hearing. Thus, the Board finds that the Veteran’s hearing request is deemed withdrawn, see 38 C.F.R. § 20.603(d), and the Board may proceed to adjudicate his appeal without prejudice to him. Entitlement to VA non-service-connected disability pension benefits prior to June 15, 2018 The Veteran initially applied for non-service-connected disability pension benefits in February 2011 claiming that he was prevented from working due to “not being able to be outside in [the] sun.” In July 2011, the RO denied his claim finding the Veteran did not meet the schedular criteria and was not found to be unemployable by reason of his disabilities (listed as hypertension and erectile dysfunction, both evaluated as zero percent disabling). In his August 2011 notice of disagreement (NOD), he asserted that he had not been employable since 1999 and that he was unable to work because he cannot stay outside in the sun, his feet hurt so he cannot walk long distances and he gets dizzy all through the day. In September 2014, the Veteran submitted a new application for pension benefits in which he claimed he was prevented from working due to depression since 2004, although he reported he last worked in April 1999. In remanding the Veteran’s claim in December 2014, the Board found that the Veteran met the service requirements for pension eligibility but noted that it appears the RO did not consider all of his disabilities (especially those he reported) in finding he was not permanently and totally disabled. Thus, the Board remanded for a VA examination to address each of the Veteran’s nonservice-connected disabilities and obtain adequate information to assign ratings for them. Although a VA examination was obtained in February 2016, the Board found in its April 2017 remand that it was inadequate because the report did not contain full diagnostic testing needed to rate the Veteran’s back, shoulder and hypertension symptoms. Thus, the Board remanded for a new VA examination to be provided, which was done in November 2018. In addition, updated VA treatment records were obtained on remand. Based on a VA treatment note from June 15, 2018 showing the results of a nuclear stress test, the RO determined that the Veteran has a permanent and total disability for pension purposes. Thus, the Board must still consider whether the Veteran had a permanent and total disability for eligibility to pension benefits prior to June 15, 2018. For VA pension purposes, all veterans who are basically eligible 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. 38 C.F.R. § 3.17. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). For the purpose of pension, the permanence of the percentage requirements of §4.16 is a requisite. 38 C.F.R. § 4.17. Generally, 38 C.F.R. § 4.16(a), provides that total disability ratings may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of disability provided that, if there is only one such disability, this disability is ratable at 60 percent or more; and that, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more, and 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 and follow substantially gainful employment by reason of such disability. 38 C.F.R. § 4.17. Prior employment or unemployment status is immaterial if, in the judgment of the rating board, the veteran’s disabilities render him or her unemployable. Id. Marginal employment will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment, is due to disability. Moreover, claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Veterans Service Center Manager or the Pension Management Center Manager under 38 C.F.R. § 3.321(b)(2). The Veteran initially filed his claim for pension benefits in February 2011. At that time, his VA treatment records show he was diagnosed to have hepatitis C positive antibodies (without a confirmed diagnosis of hepatitis C), hypertension, tobacco dependence, hyperlipidemia, erectile dysfunction, diverticulosis, hemorrhoids, alcohol use and marijuana dependence. At most, the Veteran’s hypertension would be rated as 10 percent disabling for being on continuous medication with evidence of diastolic pressure over 100. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Erectile dysfunction does not warrant a compensable rating as there is no evidence of penile deformity. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Diverticulosis does not warrant a compensable rating as there is no evidence it is symptomatic. See 38 C.F.R. § 4.114, Diagnostic Code 7327. Hemorrhoids do not warrant a compensable rating as there is no evidence that they are large or thrombotic, irreducible, with excessive redundant tissue evidencing frequent recurrences. See 38 C.F.R. § 4.114, Diagnostic Code 7336. Moreover, his hiatal hernia was reported to only produce mild symptoms of reflux and, therefore, would not warrant a compensable rating. See 38 C.F.R. § 4.114, Diagnostic Code 7346. As for his other diagnoses, VA does not recognize tobacco dependence and hyperlipidemia as disabilities. See 38 C.F.R. § 3.300 and Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996), respectively. Moreover, although there is inconsistent evidence regarding whether the Veteran has hepatitis C, there was no definitive diagnosis of such seen in his treatment records. Even if there was, a compensable rating is not warranted because there is no evidence of any symptoms related thereto, such as fatigue, malaise, anorexia, nausea, vomiting, arthralgia and right upper quadrant pain. See 38 C.F.R. § 4.114, Diagnostic Code 7354. Finally, although substance abuse may be considered a disability, it is due to willful misconduct and, therefore, cannot be considered in establishing entitlement to VA benefits. See 38 C.F.R. § 3.301(c). The medical evidence shows the Veteran has a right shoulder disorder diagnosed alternatively as arthralgia and acromioclavicular joint osteoarthritis. He sought treatment for this condition in September 2012 and X-rays show degenerative changes in the acromioclavicular joint. Based on the evidence, the Veteran’s right shoulder disorder would warrant at least a 10 percent disability rating under 38 C.F.R. § 4.59 for painful motion without evidence of compensable limitation of motion (i.e, he had motion above the shoulder) prior to October 11, 2018. A higher rating of 20 percent for limitation of motion from the side to shoulder level (i.e., 90 degrees) is warranted as of October 11, 2018 based on VA examination findings that he has active range of motion limited to 90 degrees of flexion and abduction without additional loss of motion on repetitive use. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The October 2018 VA examination also shows a finding of malunion of the clavicle, which is causing the limitation of motion of the shoulder, but this would only result in a 10 percent rating. The medical evidence also shows the Veteran sought treatment in October 2013 for depression that was treated with medication and individual therapy monthly until August 2014. Based on the evidence, the Board finds the Veteran’s depressive disorder warrants no higher than a 10 percent disability rating for symptoms resulting in occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. See February 2016 VA mental health examination; 38 C.F.R. § 4.130, Diagnostic Code 9435. Additionally, the February 2016 and October 2018 VA examinations indicate the Veteran has degenerative changes in his low back that causes low back pain. Imaging from March 2013 shows osteoarthritic changes of the sacroiliac joints bilaterally. X-rays taken at the October 2018 VA examination showed mild to moderate multilevel discogenic degenerative changes and mild facet joint arthropathy result in a diagnosis of degenerative disc disease and degenerative joint disease of the lumbar spine. Based on the medical evidence, the Board finds that the Veteran’s low back disorder warrants no more than a 10 percent disability rating for forward flexion of the thoracolumbar spine limited to no more than 65 degrees with no additional limited motion on repetitive use per the October 2018 VA examination. See 38 C.F.R. § 3.71a, Diagnostic Code 5242. The Veteran was noted on the March 2013 imaging to also have a right hydrocele, but the Veteran reported having no symptoms related thereto. See October 23, 2013 Primary Care note. Furthermore, his records show he began having an elevated prostate specific antigen (PSA) in July 2015, but he refused to have a biopsy done to confirm cancer. Therefore, no rating is warranted as the elevated PSA is merely a laboratory finding and there is no evidence that he actually has any disability relating thereto. Finally, his medical records show he began complaining of lower urinary tract symptoms (LUTS) in August 2014 and was diagnosed to have benign prostatic hypertrophy. The Board finds that no more than a 20 percent rating is warranted due to nocturia no more than three times a night. See 38 C.F.R. § 4.115a. Furthermore, the Veteran’s treatment records show was diagnosed to have bilateral tinnitus and hearing loss as early as June 2014. The Board does not find that the Veteran’s bilateral hearing loss warrants a compensable rating as it is no more than mild in the right ear and mild to moderate in the left ear. However, a 10 percent rating is warranted for the Veteran’s recurring persistent tinnitus. See 38 C.F.R. § 4.87, Diagnostic Code 6260. The medical evidence also shows the Veteran began complaining of pain in his left foot in May 2015. He was diagnosed to have tinea pedis of the left foot that was treated with medication and resolved. On Podiatry consultation he was diagnosed to have pronation (also diagnosed as flexible pes cavus), asymptomatic hallux limitus, asymptomatic hammer toes, onychauxis and exostosis and was prescribed orthotics. The Board finds that, at most, a 10 percent disability rating is warranted for each foot as the evidence shows the Veteran has hammer toes involving all the toes bilaterally. See October 2018 VA examination report; 38 C.F.R. § 3.71a, Diagnostic Code 5282. A higher rating is not warranted for any other condition, such as pes cavus, because there is no evidence of tenderness under the metatarsal heads. At most, the Veteran reported pain after walking one-quarter mile that resides with rest allowing him to continue walking, which is indicative of no more than a mild foot disorder. As for onychauxis, it is a nail condition similar to onychomycosis (or tinea unguium) and, thus, can be evaluated by analogy to dermatophytosis under Diagnostic Code 7813. However, a compensable rating is not warranted because it involves less than five percent of the entire body area (does not involve exposed areas) and no more than topical therapy was required (in fact, it does not appear that any therapy was prescribed). See 38 C.F.R. § 4.118, Diagnostic Code 7813. Finally, as for the Veteran’s complaints of being unable to be out in the sun, the Board does not find that he has a chronic disabling condition for rating purposes. On VA examination in February 2016, the Veteran reported that he sweats profusely, his throat gets dry and he feels dizzy with prolonged exposure to the sun in the summer or excessive heat. He reported speaking with his physician about this and being advised to keep well-hydrated and to avoid excessive heat exposure but denied receiving a diagnosis of any specific medical condition. The VA examiner commented that the Veteran’s history suggests dehydration but there is no chronic medical condition that would prevent the Veteran from being in the sun or a disability manifested by dizziness. The examiner stated that the functional impact is that he needs to maintain adequate hydration and avoid excessive and prolonged heat exposure. Despite reporting he spoke to his physician about this, the Veteran’s VA treatment records are silent for notations regarding such discussion or for any treatment relating to his reported problems, such as for a heat injury. Thus, there is no evidence of a current chronic medical condition preventing the Veteran from being exposed to the sun or causing any of his complained of symptoms. Hence, at the time the Veteran filed his initial claim for pension benefits, although he had multiple chronic conditions, he did not have a single disability rated as 40 percent disabling. Thus, he does not meet the schedular criteria as set forth in 38 C.F.R. § 4.16(a) to be found to have a permanent and total disability. One could still be found on an extraschedular basis if the evidence showed the Veteran was unable to secure and follow a substantially gainful occupation because of his disabilities. However, the Board does not find that such is the case here. The VA examiners who evaluated the Veteran’s disabilities did not find that they would have precluded him from all employment although some of them do impact his ability to perform certain work-related activities. The VA examiners stated that the Veteran’s benign prostatic hypertrophy, erectile dysfunction, hydrocele, previously elevated PSA, hypertension, hepatitis C positive antibody with elevated AFP, diverticulosis, and hiatal hernia did not have any functional impact on the Veteran’s ability to work and would not preclude him from employment. Although the March 2015 VA examiner stated that the Veteran’s report of his tinnitus being “bothersome” would result in functional impact, although there may be some impact on his ability to work caused by the Veteran’s “bothersome” tinnitus, such a statement does not indicate that it would prevent him from securing and following a substantially gainful occupation. As to his remaining conditions, the February 2016 examiner stated his foot problems would cause difficulty with jobs requiring prolonged standing and walking; his back condition would cause difficult with jobs requiring heavy lifting and strenuous physical exertion; and his mental health symptoms would result in mild impairment of his occupational functioning and mildly interfere with his ability to manage workplace tasks and demands in a consistent and productive manner. As to the Veteran’s right shoulder condition, the examiner noted that the September 2012 physical therapy note indicated it did not result in any functional impairment. The October 2018 VA examiner examined the Veteran’s hypertension, foot problems, back condition and right shoulder condition. The examiner did not find the Veteran’s hypertension results in any limitations. The examiner found that the Veteran’s foot problems result in limitations in walking greater than one-quarter mile without a five minute rest; his shoulder condition results in his being unable to reach above chest level with the right arm; and his back condition results in him being unable to bend repetitively or lift greater than 40 pounds. The examiner concluded that these limitations would prevent the Veteran from performing heavy labor such as construction work (carpentry, painting, sheetrock or pouring concrete) and working stocking shelves or in shipping and receiving. Based on the VA examiners’ findings, the Veteran has had limitations in performing work-related activities that would have precluded him primarily from jobs involving prolonged walking, heavy lifting, repetitive bending and above-shoulder reaching. However, these limitations would not preclude the Veteran from performing less strenuous jobs. Furthermore the medical evidence shows the Veteran has performed some types of jobs such as yard work and home repairs to earn money over the years or to pay back family and friends for housing and hair styling (he was going to cosmetology school for this and attended approximately nine months before he quit due to losing his VA education benefits). There was no suggestion in the medical evidence that his medical conditions would impair his ability to do these functions. Therefore, the Board finds that the evidence does not establish that the Veteran has been unable to secure and follow a substantially gainful occupation due to his nonservice-connected disabilities and referral for extraschedular consideration is not warranted. For the foregoing reasons, the Board finds that the Veteran has not been permanently and totally disabled due to his nonservice-connected disabilities prior to June 15, 2018 and, therefore, entitlement to VA non-service-connected disability pension benefits during that period is not warranted. REASONS FOR REMAND Entitlement to VA non-service-connected disability pension benefits as of June 15, 2018 is remanded. The Veteran initially applied for non-service-connected disability pension benefits in February 2011. As previously discussed, he was found to be permanently and totally disabled as of June 15, 2018. The RO sought development of the Veteran’s income, net worth and medical expenses but the Veteran did not submit appropriately completed VA forms and, in a January 2019 supplemental statement of the case (SSOC), he was denied entitlement to payment of pension benefits because of insufficient evidence. The Veteran submitted additional evidence at the end of January 2019 and, in March 2019, he was awarded payment of pension benefits effective July 1, 2018. However, this award was based on the Veteran being single without any dependents despite evidence of his having a spouse and a dependent child. This error was discovered November 2019 and his benefits were terminated in March 2020 effective July 1, 2018. After considering the evidence available, the Board finds that there is currently insufficient evidence as to the Veteran’s family income, net worth and medical expenses and additional development is warranted. There is inconsistent information as to the income for the Veteran’s family, especially for his spouse and daughter. The Veteran has been advised that he needs to provide his family’s income, net worth and medical expenses for the following periods: June 15, 2018 to December 31, 2018; January 1, 2019 to June 30, 2019; and July 1, 2019 to December 31, 2019. However, as the Veteran’s daughter had turned 18 years old in June 2015 and there was no indication that she was in school, the Veteran was not asked to provide information for her, only him and his spouse. On a December 2018 VA Form 21P-0516-1, Eligibility Verification Report (EVR), the Veteran reported earned income for his spouse that was for the period of April 1, 2018 to May 1, 2018, which was prior to the date for which he is entitled to pension. In a January 2019 EVR, he reported earned income for his spouse of $23,000 for the period of January 1, 2018 to December 1, 2018, which again includes income prior to his date of pension entitlement. He also reported earned income for himself of $20,000 for the period of January 1, 1999 to January 1, 2000, which also was prior to his period of pension entitlement. The Veteran needs to provide EVRs in which he reports income for his and his family that was earned ONLY during the specific periods requested, i.e., June 15, 2018 to December 31, 2018; January 1, 2019 to June 30, 2019; and July 1, 2019 to December 31, 2019. Also, on the January 2019 EVR, he reported that his spouse’s earned income ended December 1, 2018 and that she also received Social Security benefits. A data match with the Social Security Administration (SSA) shows she was awarded benefits as of December 2018. However, the Veteran also denied that they had a change in income in the past 12 months (i.e., during 2018). Thus, it is unclear whether the Veteran’s spouse stopped working as of December 1, 2018 or if she continued to work while also receiving Social Security benefits. This needs to be clarified on remand. As for his daughter, the Veteran submitted the forms showing that she began college in August 2018 (when she was 21 years old). On the initial forms submitted in January 2019, he reported she had income of $14,000 in 2018. However, he did not provide the exact date of when she started her schooling. Thus, he was asked to resubmit the form with that information. In September 2019, he did so reporting she started school on August 27, 2018, but he did not fill out the income portion of the form. Thus, it is unclear whether his daughter had income in 2018 or not and, if so, how much of that income was earned after June 15, 2018. Moreover, it is unclear whether she continued to have earned income thereafter. Thus, remand is necessary to obtain clarification of her income. The Board further notes that, if the Veteran intends to claim his daughter as a dependent, he needs to complete the appropriate EVR form for a Veteran with Children. The forms he has been submitting are for a Veteran with No Children. In addition, the Board notes that, based on the information of possible changes to his family’s income (or the reporting requirements), the Veteran will need to submit a new EVR for each income and dependent change that has occurred since June 15, 2018. In other words, he will probably need to submit a new EVR for a period starting August 27, 2018 for claiming his daughter as a dependent and again when he was no longer entitled to claim her as a dependent (i.e., as of June [REDACTED], 2020, when she turned 23 years old or when she discontinued her schooling, whichever was earlier). He will also probably need to submit a new EVR for a period starting on December 1, 2018 to report the change in his and his spouse’s income (which the evidence shows is when they began receiving Social Security benefits). On remand, to assist him, the Veteran should be provided the appropriate forms. The Veteran should complete and return all forms provided. He should not change dates prefilled in the forms, if any, and should provide the information requested only for the period indicated on each form. Finally, given the Veteran’s inconsistent reports of his dependents and their income over the years, he should be requested to submit supporting documentation for the income he reports. The matters are REMANDED for the following action: Contact the Veteran and ask him to provide the following: a) The date(s) that his spouse changed and/or discontinued any employment since June 15, 2018. b) Complete and return the appropriate VA Forms to report his and his family’s income, net worth and medical expenses for the following periods: June 15, 2018 to December 31, 2018; January 1, 2019 to June 30, 2019; and July 1, 2019 to December 31, 2019. In addition, the Board notes that, based on the information of possible changes to his family’s income (or the reporting requirements), the Veteran will need to submit a new EVR for each income and dependent change that has occurred since June 15, 2018. In other words, he will probably need to submit a new EVR for a period starting August 27, 2018 for claiming his daughter as a dependent and again when he was no longer entitled to claim her as a dependent (i.e., as of June [REDACTED], 2020, when she turned 23 years old or when she discontinued her schooling, whichever was earlier). He will also probably need to submit a new EVR for a period starting on December 1, 2018 to report the change in his and his spouse’s income (which the evidence shows is when they began receiving Social Security benefits). The Veteran should not report income received prior to June 15, 2018. Furthermore, he should be advised that he needs to complete each form provided and only provide the information requested for the period specified on the form. He should not change prefilled dates on the forms, if any. If his income or dependents changed during a specified period, he needs to submit a new EVR form with the reporting period starting in the month that the change in income occurred and ending the day prior to the next prefilled date. He should be provided with blank forms for this purpose only. If there were no changes during a specified period (i.e., the prefilled dates), then he must use the prefilled form to report his information. He should not use a blank form to report his information during a specified period unless there was a change in income or dependents during that period.   c) Documentation verifying the Veteran’s reported family’s income since June 15, 2018, especially any changes that were incurred. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.