Citation Nr: 21041590 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-01 485 DATE: July 9, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. Entitlement to a permanent and total disability rating for purposes of nonservice-connected pension benefits prior to September 26, 2016, is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities do not render him unable to secure and follow substantially gainful employment. 2. Prior to September 26, 2016, the Veteran was not 65 years of age or older and was not permanently and totally disabled from nonservice-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b). 2. The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.3, 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from October 1971 to August 1977. These matters come to the Board of Veterans' Appeals (Board) from a February 2016 rating decision which, in pertinent part, denied entitlement to a TDIU and nonservice-connected pension benefits. In August 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In January 2021, the Board remanded the matters on appeal pending adjudication of an intertwined service connection claim for posttraumatic stress disorder. The RO granted service connection for PTDS in a March 2021 rating decision; hence, adjudication of the issues on appeal may proceed. 1. Entitlement to a TDIU is denied. The Veteran contends that he is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. A TDIU may be assigned when a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability provided that if there is only one such 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, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The U.S. Court of Appeals for Veterans Claims has held the phrase "substantially gainful employment" has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). "The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person." Id. The noneconomic component goes to the veteran's individualized ability to secure and follow substantially gainful employment. Id. Attention must be given to the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities by the occupation at issue (e.g., sedentary, light, medium, heavy, or very heavy); and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Veteran is service-connected for fracture of the right (major) 5th metacarpal with traumatic arthritis and fusion, evaluated at 10 percent, effective February 1, 1982; PTSD, evaluated at 30 percent, effective May 28, 2015; and scar associated with fracture of the right (major) 5th metacarpal, evaluated as noncompensable, effective February 24, 2016. As such, the Veteran's combined rating is 40 percent from May 28, 2015. Accordingly, he does not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). Where the schedular requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Such claims should be submitted to the Director of Compensation Service (Director) for extraschedular consideration. See 38 C.F.R. § 4.16(b) (interpreting 38 U.S.C. § 501). See also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The question in this case is whether referral to the Director for entitlement to a TDIU on an extraschedular basis is warranted. Turning to the evidence of record, on his September 2015 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran reported that his PTSD and right hand disability prevented him from securing or following a substantially gainful occupation. He reported that he had been self-employed as a farmer since January 2005, working approximately 20 hours per week, and that he had applied for part-time positions as a laborer and mechanic in 2015. During a February 2016 VA hand examination, the Veteran reported pain in his right fifth finger with increased pain and stiffness after overuse. The Veteran reported he was able to live independently and perform all activities of daily living, including instrumental activities. He could drive and leave home if he chose and was able to travel at his own pace raising cows and taking care of his farm. After examining the Veteran and reviewing the claims file, the examiner indicated that the Veteran's service-connected right fifth finger disability would have no impact on his ability to perform any type of occupational task and he could perform light physical activity if he chose. A private December 2016 PTSD Disability Benefits Questionnaire (DBQ) and medical opinion provided by Dr. J.L. reflects symptoms of depressed mood, anxiety, suspiciousness, occasional panic attacks occurring weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, impaired impulse control, and intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene, resulting in total occupational and social impairment. Dr. J.L. also submitted correspondence in December 2016 wherein he discussed the Veteran's ability to work in light of his health disabilities, work experience, and limited formal education. In his assessment, Dr. J.L. discussed the effects of the Veteran's service-connected PTSD on his mental functioning as well as the physical limitations affecting occupational functioning from his service-connected right fifth finger disability and nonservice-connected left knee and low back disabilities. Dr. J.L. determined that the Veteran has been unemployable since 1979. VA treatment records are silent for mental health treatment until May 2017, when the Veteran reported taking care of his elderly father and being involved in church activities. He reported that he was a farmer who stayed away from others. A June 2017 mental status examination revealed neat appearance, stressed mood, and dysthymic affect. The Veteran was cooperative, calm, friendly, and oriented. His speech was logical and goal-directed, and his memory, attention, concentration, and judgment were good. He denied hallucinations and delusions. In September 2017, the Veteran reported that he had been hit while riding his tractor and that he now had to do his farming by hand. He reported that the tractor was his escape and that without the tractor, he had lost his means of living. In January 2019, the Veteran reported he was doing well and was working on the farm, raising cows, and growing food. In January 2020, the Veteran reported recent financial problems during which he was asked to leave the family home. A January 2020 examination and private opinion from Dr. J.L. reflects the Veteran was alert and oriented but had a strong body odor and appeared disheveled. Speech was normal, but he appeared extremely threat sensitive almost to the point of paranoia. Dr. J.L. reported that the Veteran's concentration and memory were impaired and that his depression had periods which reached psychotic levels with active delusions and paranoid ideations. Dr. J.L. ultimately concluded that the Veteran experiences near-continuous PTSD symptoms and depression which prevented him from functioning independently, appropriately, and effectively, with his PTSD impairing his ability to stay on task and adapt to work settings. He reported that the Veteran also had severe deficits in the ability to establish and maintain effective personal and work-related relationships, resulting in total occupational and social impairment. VA treatment records in February 2020 reveal that the Veteran reported he felt down, but a mental status examination noted the Veteran was clean and appropriately dressed, he was alert and orientated, psychomotor agitation was unremarkable, speech was normal, thought content was normal without hallucinations, delusions, or paranoia, thought processes were goal-directed, attention and concentration were good, and judgment and insight were average. Continuing VA mental health treatment records reflect the Veteran reported good results with his medication, that he gardened, raised cows, took walks, and that his friends would visit. During an August 2020 Board hearing, the Veteran testified that his hand swelled after too much hammering, but that he would take ibuprofen and bear with it. When asked what prevented him from farming full-time, he reported it was his age and lack of equipment. A March 2021 VA PTSD examination report reflects the Veteran had been married for thirty years and had five children. He reported taking sertraline for his mental health, but that he experienced flashbacks and irritability, and struggled with "trying to keep a grip." Upon examination, and review of the claims file, the examiner found symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, and chronic sleep impairment resulting in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Upon review of the evidence of the record, the Board finds that while the Veteran's PTSD and right fifth finger symptoms and functional impairments cause some difficulties in his work environment, the weight of the evidence does not reflect that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The Board acknowledges the 2016 and 2020 private opinions of Dr. J.L. However, the Board finds that these opinions are not probative as they are biased and inconsistent with the other evidence of record, including the Veteran's own reports during his mental health treatment, his August 2020 Board hearing, and the March 2021 VA examination report. The VA treatment records do not reflect psychiatric symptoms consistent with the nature, frequency and severity as shown in Dr. J.L.'s assessment. Most notably, while the Veteran reports some pain and swelling with his hand with overuse and that he preferred to be alone due to his PTSD, he is able to garden, raise cows, and take walks. Furthermore, he attributed his inability to work to his age and prohibitive cost of farming equipment, rather than to his service-connected hand disability or his PTSD. The Board also notes that the VA examiner who reviewed the claims file and examined the Veteran in March determined that the overall level of occupational and social impairment caused by the service-connected PTSD is best described as 'occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress.' This level of occupational impairment is not supportive of an award of a TDIU. Further, Dr. J.L.'s determination that the Veteran is unemployable was clearly based upon consideration of the combined effects of service-connected and nonservice-connected disabilities such as the left knee, which VA treatment records reflect is a rather significant condition. However, an award of TDIU is based upon whether a veteran's service-connected disabilities alone impair functioning so as to preclude him or her from being able to perform the physical or mental abilities activities required by the occupation(s) at issue. Because Dr. J.L.'s determination as it relates to occupational impairment was not based on service-connected disabilities alone, it is not particularly persuasive. In sum, the evidence does not show that the Veteran's service-connected disabilities, alone, prevent him performing either the mental or physical activities necessary for obtaining or maintaining light, semi-skilled or unskilled work such as is in question. As the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment, referral to the Director for extraschedular TDIU consideration is not warranted. Entitlement to a TDIU is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a permanent and total disability rating for purposes of nonservice-connected pension benefits prior to September 26, 2016. The Veteran contends that he is permanently and totally disabled due to his nonservice-connected disabilities and that he is entitled to nonservice-connected pension benefits. VA nonservice-connected pension benefits are payable to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3 (a). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B). See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (defining substantially gainful employment). The Veteran served in the United States Navy from October 1971 to August 1977, which include service during the Vietnam war. 38 C.F.R. § 3.2. Thus, he meets the requirement of having service during a recognized period of war. The Veteran's DD Form 214 shows his date of birth as September 26, 1951. Thus, prior to September 26, 1951, the Veteran had not attained the age of 65 and the evidence must show that he was permanently and totally disabled due to his nonservice-connected disabilities. As discussed in the Board's January 2021 remand, from September 26, 2016, the Veteran turned 65 years old and does not need to show permanent and total disability. However, as the RO is still developing evidence of the Veteran's income and net worth, the Board limited the issue on appeal to entitlement to a permanent and total rating prior to September 26, 2016. The evidence of record is negative for any indication that the Veteran was permanently and totally disabled prior to September 26, 2016, to include as due to nonservice-connected disabilities. There is no evidence that the Veteran receives Social Security Administration disability benefits or is a patient in a nursing home. Although SSA determinations are not binding on VA, it is noteworthy that SSA determined the Veteran's condition was not severe enough to keep him from working in a July 2005 disability determination. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). Moreover, the evidence of record does not demonstrate that the Veteran is unemployable or has a disability that would render the average person unable to follow a substantially gainful occupation. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the "average person" test. See 38 U.S.C. § 1502(a); 38 C.F.R. § 4.15; 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 Board finds that the evidence of record does not demonstrate that the Veteran meets any of those criteria. The Board acknowledges that the Veteran has nonservice-connected disabilities; however, they have not been shown by competent and probative evidence to be permanently and totally disabling. During a February 2016 VA hand examination, the Veteran reported he was able to live independently and perform all activities of daily living, including instrumental activities. He could drive and leave home if he chose and was able to travel at his own pace raising cows and taking care of his farm. While VA treatment records reflect the Veteran sustained a knee injury in July 2016, he reported that it was his right hand rather than his knee that prevented him from working. Furthermore, at the time of his August 2020 Board hearing, the Veteran testified that it was his age and lack of equipment, rather than a nonservice-connected disability, that prevented him from farming full-time. The evidence of record reflects that the Veteran is not 65 years old and is not permanently and totally disabled as due to nonservice-connected disabilities. The Veteran has completed high school and has experience as builder, building inspector, and farmer. Thus, given the foregoing, the Veteran was not prevented from obtaining or maintaining gainful employment, such as light, semi-skilled or unskilled work. Accordingly, the Board finds that the claim of entitlement to nonservice-connection pension must be denied. The Board need not make a determination as to whether the Veteran met the income requirements for entitlement to a pension, as the evidence of the Veteran's age and level of disability are dispositive. The preponderance of the evidence is against the Veteran's claim of entitlement to nonservice-connected pension, and his claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.