BVA9502686 DOCKET NO. 91-52 559 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a compensable rating for a right lower leg scar. 2. Entitlement to a compensable rating for prostatitis. 3. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION The veteran served on active duty from October 1963 to July 1966, September 1966 to September 1970 and from June 1971 to June 1974. This appeal arises from a September 1990 rating decision in which the RO denied compensable ratings for a gunshot wound scar of the right lower leg and prostatitis. The RO also denied entitlement to a permanent and total disability rating for pension purposes. The Board remanded the case in August 1992 for additional development of the evidence. By rating action of July 1994, the RO denied service connection for post-traumatic stress disorder. The December 1994 Informal Hearing Presentation submitted by the veteran's representative expressed disagreement with that denial. As that issue has not been properly developed on appeal and is not inextricably intertwined with the issue before us, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is permanently precluded from performing any substantially gainful employment due to multiple physical and mental disabilities. The veteran also asserts that his service connected disabilities have increased in severity and warrant a higher evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for compensable evaluations for a gunshot wound scar of the lower right leg and prostatitis. Further, it is the decision of the Board that a permanent and total disability rating for pension purposes is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's gunshot wound scar of the lower right leg is well-healed; is not tender and painful on objective demonstration; and there is no resulting limitation of function of the leg. 3. The current clinical findings with regard to prostatitis include a normal prostate examination with no complaints of pain, pyuria or diurnal and nocturnal frequency. The evidence does not show clinical findings of urinary tract infection requiring drug therapy or hospitalization or voiding dysfunction requiring the use of absorbent materials. 4. The case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. 5. The veteran was born in December 1940, is 54 years old and has a high school education. He reported that he last worked as a laborer in 1986. 6. The veteran's principal disability is a paranoid schizophrenia, which precludes him from substantially gainful employment. CONCLUSIONS OF LAW 1. A compensable evaluation for a gunshot wound scar of the lower right leg is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.31 (1993), Diagnostic Codes 7803, 7804, 7805. 2. A compensable evaluation for prostatitis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.31 4.155(a) (1993), Diagnostic Codes 7512 as in effect prior to February 17 1994, 7527. 3. The veteran is unemployable because of his permanent psychiatric disorder. 38 U.S.C.A. § § 1502, 1521, 5107 (West 1991); 38 C.F.R. § § 3.340, 4.17 and Part 4, Code 9203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. All relevant facts have been properly developed, and no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). 38 C.F.R § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. Also, 38 C.F.R. § 4.10 (1993) provides that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 594. 1. Entitlement to a compensable rating for a gunshot wound scar of the right lower extremity. By rating action of January 1975, service connection was granted for a gunshot wound of the right lower leg. Service medical records on file contain no contemporaneous records of treatment of a gunshot wound, but the report of examination for service separation refers to a scar over the shin. On VA examination of December 1974, the veteran reported that he was "creased" across the right leg in 1967. On examination, a 1 by 4 centimeter scar, located diagonally across the anterior aspect of the right leg, was noted. The examiner indicated that the scar was pigmented with a palpable notch of the anterior border of the tibia under the scar. The scar was not tender and there was no impairment of function of the right leg, foot or ankle. A noncompensable evaluation was assigned effective in September 1970 on the basis of that examination. By rating action of February 1986, the noncompensable evaluation for the gunshot wound scar was confirmed and continued on the basis of the December 1985 VA examination which noted a three inch transverse scar over the right anterior tibial surface with no evidence of depression of the wound and no muscle loss. The examiner indicated that the neurologic examination was normal and there was no demonstrable hypoesthesia below the wound. By rating action of August 1989, the noncompensable evaluation the gunshot wound scar was confirmed and continued on the basis of an August 1988 VA examination which showed that there was a well-healed, non-tender scar over the anterior lower third of the right tibia. On VA examination in July 1990, the veteran reported that he sustained a gunshot wound in the right lower leg in service which currently was numb over the surface, but not painful. On examination of the right leg, there was a soft tissue depression at the junction of the lower third and upper two-thirds without compromise to the circulation of the foot. The examiner noted that while the surface was numb to the touch, it was not painful. The area of scarring was approximately 3 by 3 centimeters. The final diagnosis was gunshot wound to the lower right leg, with local numbness and scarring, but full function. VA outpatient records dated in April 1992 show that the veteran requested removal of leg scars. During the course of a hearing on appeal, in April 1991 the veteran testified that there was numbness in the scar, but there was no pain. Clothing which rubbed against the scar did not annoy him. Under the applicable criteria, a 10 percent evaluation is warranted for superficial scars which are poorly nourished or with repeated ulceration or which are tender and painful on objective demonstration. 38 C.F.R. Part 4, Codes 7803, 7804. Otherwise, scars may be evaluated on the basis of any related limitation of function of the body part which they affect. 38 C.F.R. Part 4, Code 7805. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The veteran's contentions together with his testimony have been considered, but the objective evidence as a whole does not reflect disability of such a nature or severity as to meet the criteria for a compensable evaluation. The current clinical findings show numbness at the site of the scar but no pain, tenderness or limitation of function of the right lower extremity as a result of the scar which would warrant a compensable evaluation. Moreover, the scar has been described as well-healed and there is no evidence that the scar is poorly nourished or subject to ulceration. Moreover, while gunshot wounds would ordinarily be rated on the basis of muscle damage, no muscle injury has ever been identified. Accordingly, a zero percent evaluation must be assigned pursuant to 38 C.F.R. § 4.31. The findings do not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In this regard, the Board notes that the veteran has not asserted, nor do the facts show, that the gunshot wound scar has had marked interference with employment and he has had no recent hospitalizations for that disability. Thus, the Board finds that an extraschedular evaluation for the scar is not warranted. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(b)(1), Part 4, including §§ 4.1, 4.2, 4.3 4.10, Diagnostic Codes 7804, 7805. 2. Entitlement to a compensable evaluation for prostatitis By rating action of January 1975, service connection was granted for prostatitis, evaluated as noncompensable from September 1974. On VA examination in December 1974, the veteran reported a history of urethritis in service. He denied present urinary tract problems. On examination, the prostate was not tender and was slightly enlarged and felt somewhat fibrotic. The final diagnosis included residuals of prostatitis. A February to March 1976 VA hospital summary shows that the veteran was admitted for treatment of a drinking problem. A urinalysis showed pyuria to be present. On subsequent examination by a urologist, it was found that the pyuria had entirely cleared up and no further treatment was necessary. By rating action of May 1976, the noncompensable rating for prostatitis was continued. By rating action of February 1986, the noncompensable evaluation for prostatitis was continued on the basis of the December 1985 VA examination which included a rectal examination. The final diagnosis included chronic prostatitis by history with no objective findings. On VA examination conducted in August 1988, the rectal examination was within normal limits. By rating action of August 1989, the noncompensable evaluation for prostatitis was confirmed and continued. On VA examination of July 1990, the veteran reported that he had venereal disease at least ten times and had a "scarred" prostate gland. He denied pain or hesitation on urination or any pain or difficulty with bowel movements. On examination, there was a small hemorrhoidal rosette present at the anus with good sphincter tome. There were no abnormal masses. The left prostatic lobe was larger than the right, but the whole gland was firm and nontender and not grossly enlarged. The final diagnoses included chronic prostatitis secondary to multiple episodes of venereal disease, normal examination except for prostatic asymmetry. Numerous VA outpatient records developed between August 1988 and October 1993 are negative for any complaints, findings or treatment of prostatitis. During the course of a hearing on appeal in April 1991, the veteran testified that he had no problems with urination other than on one occasion in Vietnam. He also testified about flare-ups, but it appears that he was speaking about ulcers on his skin rather than urinary tract infections. Under the applicable criteria in effect prior to February 17, 1994, the residuals of prostate injuries, surgery, infections, or hypertrophy are evaluated as chronic cystitis, in accordance with resulting functional disturbance of the bladder, under the provision of 38 C.F.R. Part 4, Code 7512. 38 C.F.R. Part 4, Code 7527. A noncompensable evaluation is warranted for mild chronic cystitis. A 10 percent evaluation requires moderate cystitis with pyuria and diurnal and nocturnal frequency. 38 C.F.R. Part 4, Code 7512. The criteria for evaluating prostate problems has been recently changed. Under the applicable criteria in effect on and after February 17, 1994, the residuals of prostate injuries, surgery, infections, or hypertrophy are evaluated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. Part 4, Code 7527. Voiding dysfunction requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent evaluation. Urinary tract infection requiring drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent evaluation. 38 C.F.R. § 4.115(a). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The veteran's contentions have been considered, but the objective evidence as a whole does not demonstrate disability of such a nature or severity as to meet the schedular criteria for a compensable evaluation for prostatitis. The current clinical findings show a normal prostate examination except for prostatic asymmetry. The veteran has made no complaints. The current findings do not show pyuria and diurnal and nocturnal frequency. The medical records are negative for findings of urinary tract infection requiring drug therapy or hospitalization. There is no evidence of voiding dysfunction requiring the use of absorbent materials. Based on these findings, the Board concludes that a compensable rating for prostatitis is not warranted. The findings do not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In this regard, the Board notes that the veteran has not contended, nor do the facts show that prostatitis has caused a marked interference with employment and he has had no recent hospitalizations for prostatitis. Thus, the Board finds that an extraschedular evaluation for prostatitis is not warranted. 3. Entitlement to a permanent and total disability rating for pension purposes. Subject to certain income limitations and service requirements, a veteran shall be paid a pension if he or she is permanently and totally disabled by reason of nonservice-connected disability not the result of his or her own willful misconduct. 38 U.S.C.A. § 1521. Pursuant to 38 U.S.C.A. § 1502, a person shall be considered permanently and totally disabled if such person is suffering from any disabilities sufficient to render it impossible for the average person to follow a substantially gainful occupation, if it is reasonably certain such disability will continue throughout the life of the disabled person. The "average person standard" is implemented by VA regulations, including 38 C.F.R. § § 3.340 (a) and 4.17 (1993). Certain other regulations provide some guidance in assigning permanent and total disability ratings. 38 C.F.R. § 3.340 provides that total ratings are authorized for any disability or combination of disabilities for which the schedule for rating disabilities prescribes a 100 percent evaluation or in pension cases, where there is less disability, where the requirements of 38 C.F.R. § 4.17 are met. 38 C.F.R. § 4.17 permits assignment of a total rating where the schedular rating is less than total and certain minimal schedular ratings and/or combination of ratings are present and the veteran is unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent. The minimum schedular rating, if there are two or more disabilities, are at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. If there is only one disability, it must be rated at least 60 percent disabling. Under the applicable criteria, a 30 percent evaluation is warranted for paranoid type schizophrenia with definite impairment of social and industrial adaptability. A 50 percent evaluation requires considerable impairment of social and industrial adaptability. A 70 percent evaluation requires symptomatology which is less than required for a 100 percent evaluation, but which nevertheless produces severe impairment of social and industrial adaptability. A 100 percent evaluation requires active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. Part 4, Code 9203. By rating action of May 1976, service connection was denied for chronic paranoid schizophrenia on the basis that the evidence of record failed to show that a psychiatric disability had its onset in service or became manifest to a degree of 10 percent or more within one year following discharge from active duty. A noncompensable evaluation was assigned the nonservice-connected schizophrenia from June 1974 on the basis of the February to March 1976 VA hospital summary. It indicated that at the time of admission the veteran was interviewed and was found to have ideas of reference and ideas of influence, as well as delusions of persecution. Medications were prescribed and it was noted that with the use of medications, symptoms of schizophrenia had abated considerably and the veteran was much improved psychologically. By rating actions of February 1986 and August 1989, a noncompensable evaluation for chronic schizophrenia was confirmed and continued. By rating action of July 1994, the RO assigned the veteran a 30 percent nonservice-connected disability rating for his schizophrenia and found that entitlement to a permanent and total disability rating for pension purposes was not warranted. Noncompensable ratings for nonservice connected plantar warts and right shoulder tendonitis are also in effect. As will be discussed below, the Board concludes that the veteran is entitled to a permanent and total disability rating for pension purposes on the basis of his psychiatric disability. As this constitutes a grant of the full benefit sought on appeal with respect to the claim for pension, the Board will not address the other disabilities present which are of minimal impact. Certainty, it is also recognized that the veteran has had problems with the chronic abuse of alcohol which has been ruled as willful misconduct by the RO. Nevertheless, other than episodes of excessive drinking, there is no basis in the current record to support a finding that psychiatric symptoms present are the result of alcoholism. Initially, we note that the veteran is 54 years old, having been born in December 1940. The veteran is a high school graduate. In September 1993, the veteran indicated that he had last worked in 1986 as a laborer. On VA psychiatric examination of July 1990, the examiner noted that the veteran was a very unreliable historian and that the claims folder was not available for the examiner's review. He noted that the veteran had previously received a diagnosis of paranoid schizophrenia and that currently he was unemployed and residing in a rescue mission. The veteran was unable to report any period of gainful employment subsequent to his military discharge. He indicated that he had been a heavy drinker for many years and had participated in numerous alcohol detoxification programs. He reported that in approximately 1975 he was treated at a VA facility and was given a diagnosis of schizophrenia. He indicated that he had not reliably participated in any treatment nor taken any medication since that time. He stated that he generally lived on the street and occasionally traveled to Reno or Las Vegas to gamble when he had money. On mental status examination, the veteran was very child- like in his presentation. His speech tended to be garbled, mumbled, and digressive with frequent references to underlying paranoid ideation. He denied hallucinations but reported having dreams at times and was unsure whether or not they were real. He denied suicidal or homicidal ideation. He showed internal mental confusion. He had difficulty in performing tests to assess his cognitive abilities and appeared to have decreased memory and decreased attention span. His insight was extremely poor and his judgment was impaired. The examiner concluded that the veteran was unable to handle his own funds and that he was entirely unemployable. The examiner noted that the veteran showed decreased concentration, paranoid ideation and chronic alcoholism. The prognosis for any significant change in the veteran's condition was extremely poor. The final diagnosis was residual schizophrenia and chronic alcohol abuse. On VA psychiatric evaluation of November 1993, the veteran reported that he was unemployed and resided in either residence hotels or a rescue mission depending on finances. The examiner noted the claims folder was available for review and summarized the veteran's psychiatric treatment history from February 1976 to October 1993. The examiner also indicated that he examined the veteran in July 1990. The veteran reported that, currently, his problems were largely with alcohol. He indicated he was receiving Social Security benefits and when that money ran out he would sleep on the street or in a mission. He indicated that he had no real friends and mostly met people in bars. The examiner commented that peppered throughout the veteran's interview were references to mild, low level paranoid delusional ideation. The veteran talked about various plots of the government and conspiracies. On mental status evaluation, his speech was rambling, digressive, at times tangential and of a somewhat decreased amplitude with a mumbling quality. The content of his thoughts were notable for delusional thinking with some elements of ideas of reference. There was no evidence of auditory or visual hallucinations. The veteran showed a blunted affect. He was alert and oriented in all three spheres, but showed some cognitive deterioration. He could name the current president, but not any preceding one. He was unable to do serial 7's, even when counting on his fingers. His interpretation of proverbs was concrete and mildly idiosyncratic. His object recall was only two out of four objects at a five minute delay. He had difficulty calculating how much of his income was left over for budgetary purposes each month after paying his rent. His insight was extremely poor and his judgment was impaired. The examiner concluded that the veteran's condition was essentially unchanged from that described in the 1990 examination and that he was unable to be gainfully employed. He noted that the veteran was not receiving any current treatment and it was unlikely that his condition would show any significant change in the immediate future. The final diagnoses were chronic paranoid schizophrenia, in partial remission and chronic alcohol abuse. After reviewing the evidence of record, we conclude that the 30 percent disability evaluation assigned to the veteran's schizophrenia is inadequate. The evidence clearly demonstrates that the veteran's industrial adaptability has been severely impaired by his psychiatric condition and that a 70 percent rating is warranted for this condition. The current psychiatric examination showed that the veteran was delusional with poor insight and impaired judgment. It was noted that he was unable to manage his Social Security benefits and was often homeless. The veteran is also a loner, with little, if any, social contacts. The veteran has been unemployed for many years. On examination in July 1990, he was unable to report any period of gainful employment subsequent to his military discharge. In September 1993, he indicated that he had last worked as a laborer in 1986. However, we do not find that a schedular 100 percent evaluation is warranted at this point. The veteran's psychiatric disability has had a profound impact upon his ability to work, as well as on his interpersonal relationships. The current clinical findings do not show that he displays active psychotic manifestations of such severity or bizarreness as to result in complete social and industrial impairment. However, the Board concludes that the evidence supports that conclusion that he is, in fact, unable to follow a substantially gainful occupation. In this regard, the evidence shows that the veteran suffers from schizophrenia, a permanent condition. The permanency of this condition has been amply demonstrated by the veteran's long treatment history. In addition, the VA psychiatrist who examined the veteran in 1990, and again in 1993, concluded that the veteran is unemployable and there is no prospect for improvement of his psychiatric disorder in the immediate future. Therefore, the Board finds that the veteran's condition is permanent in nature. After careful consideration, we also find that the veteran is unemployable because of his psychiatric condition. The veteran has not been able to sustain employment for many years because of his condition. Therefore, the Board concludes that entitlement to a permanent and total disability rating for pension purposes is warranted. ORDER Entitlement to compensable ratings for a gunshot wound scar of the lower right leg and prostatitis is denied. Entitlement to a permanent and total disability rating for pension purposes is granted. C.W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (Continued Next Page) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.