Citation Nr: 21024725 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-29 034 DATE: April 26, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. Entitlement to nonservice-connected pension benefits is denied. FINDINGS OF FACT 1. The Veteran’s only service-connected disability, posttraumatic stress disorder (PTSD), is rated 50 percent disabling and does not meet the schedular criteria for a TDIU. 2. The Veteran’s service-connected PTSD does not render her unable to secure or follow a substantially gainful employment. 3. The Veteran is not permanently and totally disabled from nonservice-connected disability for purposes of entitlement to nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. 2. The criteria for payment of nonservice-connected pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to December 1982; from October 1990 to June 1991; and from January 1999 to March 2001. She also served with the Army National Guard of Mississippi until March 2001 and on active duty in Southwest Asia. By way of background, in March 2013, a Department of Veterans Affairs (VA) Regional Office (RO) issued a rating decision and notification letter that, in pertinent part, denied TDIU and nonservice-connected pension benefits. After the Veteran perfected an appeal as to these matters, a hearing was held before a Decision Review Officer (DRO) in May 2015. A transcript is of record. In June 2018, the Board issued a decision that, in pertinent part, remanded the above captioned claims for further development. Following additional development, a Supplemental Statement of the Case (SSOC) was issued in April 2020. The above captioned claims were then returned to the Board for adjudication. The Board observes that also addressed in the April 2020 SSOC were the issues of entitlement to service connection for a digestive disability and for a migraine disability. The Veteran responded by filing a timely VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and electing to opt-in to the Appeals Modernization Act (AMA) the claims for service connection for a digestive disability and for a migraine disability. Accordingly, those issues will be addressed as AMA appeals under a separate Board decision. See 38 C.F.R. § 19.2. 1. Entitlement to a TDIU Total ratings based on individual unemployability, referred to as TDIU, may be assigned in the first instance by the Board or the Regional Office when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be as ratable at 60 percent or more, and that, if there are two or more disabilities, here shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining if the schedular threshold is met, “one disability” is defined as disabilities of one or both upper or lower extremities, including the bilateral factor; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In order to be awarded TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran maintains she is entitled to TDIU because of her service-connected disability. The Veteran is presently service-connected for PTSD only; it is assigned a 50 percent disability rating, effective September 7, 2011. As the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, to include after consideration of the § 4.25(b) regarding disabilities arising from a single disease entity, she does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). As such, the claim of entitlement to TDIU on a schedular basis must be denied. The Board has considered whether referral for consideration of TDIU on an extraschedular basis is warranted. See 38 C.F.R. § 4.16(b). However, the competent evidence of record does not indicate that the Veteran is unemployable due solely to her service-connected disability. In November 2011, the Veteran submitted a VA Form 21-8940 in which she reported work experience as a cook for 35/55 Truck Stop and an educational history of four years of high school with no additional education or training before becoming too disabled to work. She also indicated that her disabilities affected full-time employment starting in July 2008, but did not indicate the last date that she worked full-time or the date she became too disabled to work. Significantly, the Veteran reported that her back, migraine, and ulcer disabilities prevented her from securing or following any substantial gainful occupation. However, the Veteran is not service-connected for these disabilities. As noted above, her only service-connected disability is PTSD. See November 2011 VA Form 21-8940. Additionally, the available evidence of record also suggests that the Veteran has been employed throughout the appeal period, albeit with modifications. Specifically, the record shows the Veteran worked as a cook and server at a truck stop until sometime in 2013 or 2014, and then she worked as a direct care worker through Ability to Work Program with Medicaid, assisting disabled people with various tasks. In October 2011, the owner of the Veteran’s then-employer, 33/35 Truck Stop, reported the Veteran was employed, in good standing and a very valuable employee. From time to time, she had difficulty adhering to the work schedule due to pains and weaknesses obtained from her “earlier years”. She had back pains and was not able to lift anything heavy for fear of making such injuries worse. She had also missed a few consecutive days on numerous occasions because she could not get out of bed. However, because the Veteran was a good cook, the employer indicated they had “[tried] everything possible to hold her job and help work through the issues at hand.” See October 2011 Third Party Correspondence. An October 2012 statement from the same employer echoed her October 2011 statement, indicating the Veteran was employed at that time and was in good standing. The employer noted the Veteran did have difficulty from time to time working her scheduled hours due to pains and weakness obtained from earlier years. However, the pains and weaknesses were accommodated the best they could be because the employer noted the Veteran was a “valuable employee”. See October 2012 VA Form 21-4138. The employer also completed a VA Form 21-4192, which showed the Veteran had been working as a cook since August 2002 and worked 34 hours per week. The Veteran did not have an end date of employment, as she was still employed. See October 2012 VA Form 21-4192. At the May 2015 DRO hearing, the Veteran testified she was employed as a caregiver for the disabled. Despite issues with her back and her feet, she worked five hours a day, seven days a week, with a schedule of her choice. The hours were considered full time. While working was difficult in terms of the physical requirements of assisting disabled persons, she testified she did the best she could because she did not want to lose the job and the patients needed her. See May 2015 DRO Hearing Transcript. More recently, at a May 2019 VA examination for PTSD, it was reported that the Veteran had been a caregiver since 2004. The examination findings also showed the Veteran continued to present symptoms that affected her productivity during employment but it was noted that she could perform a physical or sedentary job in an environment with limited number of people, which was predictable and controlled. The examiner further indicated that working outside of those limitations, with more than a few people and in unpredictable and uncontrolled manner would likely increase the Veteran’s symptoms of PTSD. See May 2019 VA examination. In March 2019, the Veteran was sent a new VA Form 21-8940 and Form 21-4192 to complete and return for each of her employers. However, no response was received. This updated information would be helpful in adjudicating her pending TDIU claim particularly in determining her current employment status, to include the number of hours worked. See Subsequent Development Letter. While the Veteran did not complete and return the VA Forms 21-8940 and Form 21-4192, she did submit evidence that she was forced to declare Chapter 13 bankruptcy which was finalized in January 2020. See Income and Tax Statements. The Board is sympathetic to the Veteran’s financial difficulties but unfortunately, the paperwork she submitted does not assist in adjudicating her claim for TDIU as the financial paperwork does not address the Veteran’s employment status. Lastly, the Board acknowledges the statements that the Veteran has submitted on her own behalf and from co-workers regarding the claim for TDIU. The Board emphasizes, however, that each of the statements provided discusses the Veteran’s challenges with working based on nonservice-connected disabilities. For instance, an October 2012 statement from the Veteran’s co-worker reports the Veteran’s complaints of stomach and head pains during work. The co-worker also reported she would have to “cover” and replace the Veteran at work at times when she became ill after her arrival at work. See October 2012 Statement from K.L.P. Another October 2012 statement from a co-worker reported the Veteran was unable to work some days as a result of her back pain or headaches, despite the Veteran’s best efforts. See October 2012 Statement from S.M. Another October 2012 statement similarly recounts the Veteran’s struggles with her headaches, back pain and sleep deprivation. See October 2012 Statement from A.C.A. The October 2012 and August 2014 statements from the Veteran recount her reports of constant pain, which she believed to be service-related. See October 2012 Veteran’s Statement and See August 2014 Veteran’s Statement. It is similarly noted that the October 2011 and October 2012 statements discussed above from the Veteran’s then-employer, 33/35 Truck Stop, also mentioned that the Veteran’s workplace limitations stemmed from “pains and weaknesses”, such as back pain, a nonservice-connected disability. After a thorough review of the record, the evidence clearly shows that the Veteran is not unable to secure or follow a substantially gainful occupation due to her service-connected PTSD as she appears to be presently employed. Furthermore, the record does not support a finding that her service-connected PTSD alone causes limitations which would prevent an ability to work in setting with a limited number of people and controlled work environment. In conclusion, the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. No referral for extraschedular consideration is required. Accordingly, the claim for entitlement to a TDIU is denied. 2. Entitlement to nonservice-connected pension benefits The Veteran seeks to establish entitlement to nonservice-connected disability pension benefits. Pursuant to 38 U.S.C. § 1521(a), nonservice-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his own willful misconduct. A veteran is entitled to pension only if his income is not in excess of the applicable MAPR (maximum annual pension rate), as specified at 38 C.F.R. § 3.23 and changed periodically, as reported in the Federal Register. See 38 U.S.C. § 1521. The maximum rates for a veteran’s pension are reduced dollar for dollar by the amount of the countable income of a veteran, his spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In this case, while the Veteran meets the basic eligibility requirements for non-service connected pension benefits based on her service during the Persian Gulf War, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not eligible for nonservice-connected pension benefits on the basis that she is not permanently and totally disabled from a nonservice connected disability. 38 U.S.C. § 1521; 38 C.F.R. § 3.3. In fact, as previously discussed at length, the available evidence of record suggests the Veteran is presently employed. At the May 2015 DRO hearing, when providing testimony regarding her nonservice-connected pension claim, the Veteran testified she was working five hours a day, seven days a week, with a schedule of her choice. The hours were considered full-time. She helped disabled persons seek assistance with Medicaid. While working was difficult, she testified she did the best she could because she did not want to lose the job and the patients needed her. See DRO Hearing Transcript. Most recently, at a May 2019 VA examination for PTSD, it was reported that the Veteran had been a caregiver since 2004, with no indication provided that the Veteran was not employed. The Veteran similarly reported at a May 2019 VA examination for esophageal conditions that she was employed as a caregiver for the disabled. Notably, in March 2019, the Veteran was sent a VA Form 5655 Financial Status Report, but failed to respond. See March 2019 VA Form 5655. Instead, the Veteran submitted evidence that she had filed for Chapter 13 bankruptcy which was finalized in January 2020. See Income and Tax Statements. While this is clear evidence of financial hardship, it remains that the Veteran has not provided any additional income or net worth information or evidence during the applicable period at issue which may be used for purposes of calculating countable income for nonservice-connected pension purposes. (Continued on the next page)   Accordingly, the Board finds the Veteran is not permanently and totally disabled from nonservice-connected disability nor is there evidence that she met the annual income requirement set forth in 38 C.F.R. § 3.3. Nonservice-connected disability pension benefits are, therefore, not warranted. For all of these reasons, the preponderance of the evidence is against the claim. The appeal must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, Counsel 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.