Citation Nr: 22017385 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-02 523 DATE: March 24, 2022 ORDER From November 30, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. From June 28, 2021, special monthly compensation under 38 U.S.C. § 1114 (s) is granted. From November 30, 2015, entitlement to nonservice-connected pension is dismissed as moot. From February 5, 2015 to November 29, 2015, entitlement to nonservice-connected pension is granted. REMANDED Prior to November 30, 2015, entitlement to a TDIU is remanded. FINDINGS OF FACT 1. For the rating period from November 30, 2015, the Veteran is unable to secure or follow gainful or more than marginal employment due to service-connected disabilities. 2. From June 28, 2021, the Veteran has a single service-connected disability rated at 100 percent and has additional service-connected disability independently ratable at 60 percent. 3. From November 30, 2015, the Veteran's TDIU provides a greater benefit than nonservice-connected pension. 4. From February 3, 2015 to November 29, 2015, the Veteran was permanently and totally disabled, his countable income did not exceed the maximum annual pension rate, and net worth is not a bar to the receipt of pension benefits. CONCLUSIONS OF LAW 1. From November 30, 2015, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (a). 2. From June 28, 2021, the criteria for special monthly compensation under 38 U.S.C. § 1114 (s) have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). 3. From November 30, 2015, as a greater benefit was awarded, the claim for nonservice-connected pension is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 3.151. 4. From February 3, 2015 to November 29, 2015, the criteria for payment of nonservice-connected pension benefits have been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.275. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied nonservice-connected pension. In a September 2019 Board decision and remand, entitlement to a TDIU was added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), in conjunction with his increased rating and pending pension claims. The Veteran testified at a July 2018 Board videoconference hearing. The hearing transcript is of record and has been reviewed. The Board remanded the appeal for additional development in September 2019, to include, in pertinent part, a VA examination to address the impact of his left knee disability on his occupational capabilities and deferred adjudication of the TDIU and pension claims pending resolution of his claim for service connection for a lumbar spine disability. The issue of entitlement to service connection for a spine disability was granted and is no longer on appeal before the Board. The requested VA examinations have been completed. Thus, the Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's remand directives. The Veteran was informed in a December 2021 letter that the Veterans Law Judge who conducted the July 2018 hearing is no longer employed by the Board and he was afforded the opportunity to request another optional Board hearing. In January 2022 correspondence, the Veteran indicated that he did not wish to appear at another Board hearing and requested consideration of the case based on the evidence of record. 1. From November 30, 2015, entitlement to a TDIU is granted Total disability ratings for compensation may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). Such a rating is referred to as a TDIU. To be considered for assignment of a schedular TDIU the Veteran's service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. Id. Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." Id. Notably, this inquiry must focus on whether, in light of his service-connected disorders, the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may not be given to the veteran's age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Factors to be considered in determining whether unemployability exists are the veteran's education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski,1 Vet. App. 326, 330, 332 (1991). In evaluating a Veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 38 C.F.R. § 4.16 (a). For the entire appeal period from November 30, 2015, the Veteran was in receipt of a combined evaluation of 80 percent or higher. The Veteran, therefore, met the schedular percentage standards of section 4.16 (a). In July 2018 Board hearing testimony, the Veteran reported that he had a high school education with enough credits to probably obtain an associate's degree. He used to run a cleaning business but had to close the business because he was no longer able to do the work due to physical disability. He had been in receipt of Social Security Income (SSI) since 2014. An August 2014 SSA/SSI letter shows that the Veteran earned $100.00 from May 2013 to December 2013, indicating that he had no more than marginal employment since at least May 2013. A note from the Veteran's VA physician dated in January 2016, which is associated with VA treatment records and was also submitted to the State of Alabama Department of Human Resources Food Assistance Program, shows that the Veteran was not able to work due to degenerative disc disease of the lumbar spine with lumbar radiculopathy. He was receiving pain management care and received injections in low back once a month. The condition was permanent, and his physician did not expect the Veteran to return to employment. A June 2021 private psychological evaluation completed by Dr. J.L. notes that the Veteran had to give up his cleaning business in 2014 because of failing physical and mental health and he stopped working as a waiter as well in 2014. The Veteran reported that he had not been gainfully employed since 2014. Dr. J.L. stated that because of PTSD, the Veteran was not able to function effectively without anxiety around people other than his spouse and dogs. His depressive symptoms made it difficult to sustain sufficient energy and motivation to carry out work assignments and most activities of daily living. He opined that the Veteran had total occupational and social impairment with deficiencies in most areas and he was unemployable. A June 2021 VA spine examination shows that the Veteran's service-connected spine disability with spinal fusion and stenosis did impact his ability to perform occupational tasks, decreased his ability to tolerate prolonged standing and walking as a result of pain, and resulted in numbness and tingling in the lower extremities. A November 2021 VA examination of the knee shows that the Veteran had significant impairment in left knee and that he would have significant difficulty in an occupational environment due to the left knee. He was unable to do heavy lifting, pushing or pulling, and was unable to bend, stretch, and reach. It was noted that sedentary work would require frequent breaks, that he had difficulty sitting due to limited range of motion, and he was unable to walk long distances. Based on the evidence discussed above, the Board finds that for the appeal period from November 30, 2015, the Veteran was unable to secure or follow gainful or more than marginal employment due to service-connected physical and mental disabilities. Resolving reasonable doubt in favor of the Veteran, the Board finds that from November 30, 2015, a TDIU is warranted. 2. Entitlement to special monthly compensation under 38 U.S.C. § 1114 (s) Special monthly compensation is payable for being permanently housebound by reason of a service-connected disability or disabilities. This requirement is met when the Veteran has a single service-connected disability rated at 100 percent and (1) another service-connected disability rated at 60 percent or more, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities will continue throughout his or her lifetime. Id. From June 28, 2021, the Veteran is in receipt of a 100 percent rating due to service-connected PTSD, and he is in receipt of a 60 percent rating for a left knee total arthroplasty. Thus, from June 28, 2021, the Veteran is in receipt of a 100 percent rating for the single service-connected disability, and he has additional service-connected disabilities independently ratable at 60 percent or more. Accordingly, the Board finds that from June 28, 2021, special monthly compensation is warranted based on a total plus 60 percent rating under the provisions of 38 U.S.C. § 1114 (s). 3. From November 30, 2015, entitlement to nonservice-connected pension is dismissed as moot The Veteran filed his claim for nonservice-connected pension in February 2015. From November 30, 2015, the Veteran's TDIU provides a greater benefit than nonservice-connected pension. As the Veteran's service-connected compensation represents the greater award, the appeal for NSC pension benefits is moot and must be dismissed. 38 C.F.R. § 3.151(a) (stating that a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise). 4. From February 3, 2015 to November 29, 2015, entitlement to nonservice-connected pension is granted Basic entitlement to nonservice-connected pension benefits for a veteran exists if: (1) the veteran had qualifying service under 38 U.S.C. § 1521(j); (2) the veteran is age 65 or older or permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct; and (3) the veteran meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. §§ 1513, 1521; 38 C.F.R. § 3.3 (a)(3). 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). Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). The Veteran filed an application for nonservice-connected pension received on February 3, 2015. The record shows that the Veteran' service-connected disabilities were rated as 60 percent disabling from May 2012, and he was in receipt of a 100 percent rating for a TDIU from November 30, 2015. The Veteran's most recent rating code sheet identified a combined 100 percent rating for pension purposes. The Board finds that the evidence is at least in equipoise on the question of whether Veteran is permanently and totally disabled due to disability from February 3, 2015. In July 2018 Board hearing testimony, the Veteran reported that he was no longer able to do the work due to physical disability and had been in receipt of Social Security Income (SSI) since 2014. An August 2014 SSA/SSI letter shows that he had no more than marginal employment since at least May 2013. A June 2021 private psychological evaluation completed by Dr. J.L. notes that the Veteran had to give up his cleaning business in 2014 and stopped waiting tables in 2014 due to physical and psychiatric disabilities. A May 2015 VA examination indicates that the Veteran would be impaired in any work situation that required him to make heavy use of the left knee, such as frequently bending or climbing stairs. Finally, a January 2016 opinion from the Veteran's VA physician shows that the Veteran was not able to work due to degenerative disc disease of the lumbar spine with lumbar radiculopathy. The evidence of record indicates that the Veteran stopped working in approximately 2013 or 2014. When considered together, along with evidence showing that the Veteran is currently disabled due to physical and psychiatric disabilities, the Board finds, resolving reasonable doubt in favor of the Veteran, that entitlement to nonservice-connected is warranted from February 3, 2015, the date he submitted his claim for pension, to October 29, 2015. The Board finds that the Veteran's net worth and countable income are not a bar to the receipt of pension benefits. Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. However, welfare benefits, such as supplemental security income (SSI), are excludable from countable income for purposes of receipt of pension. 38 C.F.R. § 3.272. The MAPR for a Veteran with no dependents in 2015 was $12,868.00. The Veteran identified having no net worth in his February 2015 Application for Pension. His only income was from SSI and VA benefits, both which are not countable for pension purposes. The Veteran, therefore, had a countable income of $0.00. The Veteran's countable income did not exceed the maximum annual pension rate. Thus, entitlement to nonservice-connected pension is granted from February 3, 2015 to November 29, 2015. REASONS FOR REMAND Prior to November 30, 2015, entitlement to a TDIU is remanded. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The Veteran has the following disabilities that are service connected: degenerative arthritis of the spine rated at 40 percent from May 2012, a torn lateral meniscus, left knee, rated at 10 percent from May 1992, limitation of motion/extension of the left knee rated at 10 percent from May 2012, and viral gastroenteritis with incidental appendectomy rated at 0 percent. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service if there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In a February 2015 Application for Pension, in hearing testimony, and in a June 2021 private psychological evaluation, the Veteran indicated that since 2014, he cannot work due to symptomatology associated with his service-connected disabilities. A January 2016 opinion from the Veteran's VA physicain additionally indicates that he cannot work due to his lumbar spine disability with radiculopathy, noting the onset of his spine disability in December 2012. Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.