Citation Nr: 21032679 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 08-15 788 DATE: May 27, 2021 ORDER Entitlement to non-service-connected disability pension benefits is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for basic eligibility to VA non-service-connected pension benefits have not been met. 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 duty for training from June to August 1988 and had active military service from April 1989 to April 1992, which included an overseas tour in Saudi Arabia from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s October 2006 rating decision. In June 2010, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is associated with the record. The Veteran did not respond to correspondence sent in February 2021 offering an optional hearing before a different Veterans Law Judge and advising him that if he did not respond within 30 days, the Board would assume he did not want another hearing and proceed accordingly. Thus, the Board may proceed to adjudicate his appeal. The Veteran's appeal was previously remanded by the Board in February 2014 and July 2017 at which time it also included claims for service connection for disabilities of the left knee, left elbow, bilateral feet and for gout. In an August 2020 rating decision, the RO recharacterized the Veteran's service connection issues on appeal as "gout at both elbows, knees, feet and ankles (also claimed as left knee, left elbow and bilateral foot disabilities due to an undiagnosed illness)" and granted service connection effective May 4, 2006. This grant is a complete grant of the benefits sought on appeal for this issue. Therefore, the Board has no further jurisdiction to consider the service connection issues previously remanded by the Board. As to the Veteran's claim for entitlement to non-service-connected disability pension benefits, the Board finds substantial compliance with the prior remands as this issue was merely remanded as inextricably intertwined with the service connection issues because the development obtained on those issue may have impacted the outcome of this issue. 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). Entitlement to non-service-connected disability pension benefits The Veteran is seeking entitlement to non-service-connected disability pension benefits, but his claim has been denied because the evidence does not establish that he is unable to secure or follow a substantially gainful occupation. The Board agrees that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation. 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 (for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration) 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 has service-connected disabilities of anxiety and depression rated as 30 percent disabling; gout in multiple joints rated as 20 percent disabling; and right patella fracture, post repair, with tear of the patellar ligament rated as 10 percent disabling prior to May 4, 2006 and zero percent thereafter. Nonservice-connected disabilities recognized for pension purposes include mixed personality disorder, schizoid features with possible malingering rated as 10 percent disabling. Considering all these disabilities, the Veteran's combined rating for pension purposes is 50 percent. Therefore, the Veteran does not meet the schedular requirement for a finding of unemployability as set forth in 38 C.F.R. § 4.16. However, where the evidence establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule, but is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors, the Veterans Service Center Manager or the Pension Management Center Manager are authorized to approve, on an extraschedular basis, a permanent and total disability rating for pension purposes. 38 C.F.R. § 3.321(b), 4.17(b). The Board does not find that referral for extraschedular consideration is warranted because there is no plausible evidence that the Veteran has been unable to secure or follow a substantially gainful occupation because of his disabilities. The evidence shows the Veteran has two bachelor's degrees in Science and in Computer Science/Mathematics received in 1998 and 2000 respectively. The Veteran also received on-the-job training for IT specialist through various vocational and rehabilitation services (including VA) from 2006 to April 2012. Hence, the Board finds that the Veteran is a highly educated individual trained in a specialized field that would allow him to avoid manual labor that might affect his musculoskeletal disabilities. The Veteran's resume from 2015 shows that he has worked every year since 2009 first for his on-the-job training as in IT Specialist from March 2009 through May 2012 and thereafter from June to September of each year for various national parks as a Biological Science Technician. The evidence also shows that the Veteran worked seasonal jobs in various national parks prior to 2009, as well as jobs as a security guard, a landscaper, and a truck driver. Furthermore, although the Veteran may have had periods of unemployment, the evidence does not establish that this was because of his disabilities. Rather it was because he preferred to work seasonal or term positions although he has been trained for full-time employment in his chosen field. Although he expressed to his vocational counselors his desire for a permanent long-term white-collar job, he consistently only applied for short-term temporary positions. Moreover, the jobs he applied for had nothing to do with the vocational training he was given (i.e., computers), but rather were field positions within such agencies as U.S. Fish and Wildlife and the U.S. Forestry Service. In fact, VA discontinued providing him employment services in 2017 because of his choice to not seek full-time employment although he was employable. The special report setting forth this decision states that the Veteran liked and was only motivated to seek temporary positions and had not applied to any full-time permanent positions. Moreover, it was stated that the Veteran was fully employable, and he agreed that he was more than employable with the training provided by VA Vocational Rehabilitation but that he is very picky about what positions he applies for because he likes temporary term style positions. He agreed that he is capable of suitable, sustainable employment and it is by choice that he sought very specific positions although his training prepared him for competitive, entry-level employment in his chosen field. The Board acknowledges that the Veteran had barriers to employment. However, the evidence does not demonstrate that these barriers prevent his from securing and following substantially gainful occupation. Rather, even from the start, the Veteran's stated goal was to obtain better employment (i.e., a white-collar job rather than a blue-collar one). An example of this is the security guard job the Veteran held in 2007. Furthermore, the VA determined that the Veteran's vocational training had overcome the barriers he had. As he was able to overcome any barriers he had to employment, such barriers were not permanent in nature. For the foregoing reason, the Board finds that the Veteran has been able to secure and follow a substantially gainful occupation and, therefore, he does not have a permanent and total disability for purposes of establishing eligibility to VA non-service-connected disability pension benefits. The Veteran's claim must, therefore, be denied. 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.