BVA9500884 DOCKET NO. 93-10 191 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The appellant served on active duty from July 1972 to July 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1991 decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO) denying a permanent and total disability rating for pension purposes. On appeal the veteran has raised the issues of entitlement to service connection for headaches, hypertension and schizophrenia. These issues have not been developed and they are not certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant and his representative contend, in substance, that acute episodes of schizophrenia completely dominate the appellant's personality, interfere with interpersonal relationships, and prevent any form of substantially gainful employment. They state that the appellant is receiving Supplemental Security Income (SSI) from the Social Security Administration. They maintain that he experiences physical limitations from back and knee pain attributable to automobile- related injuries. 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 files. 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 a claim for a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The appellant has no adjudicated service-connected disabilities. 2. His nonservice-connected disabilities are schizophrenia, paranoid type, with personality disorder, evaluated 30 percent disabling; history of hypertension, evaluated noncompensable; headaches, evaluated noncompensable; and history of alcoholic hepatitis with anemia, evaluated noncompensable. 3. His ratable disabilities have a combined evaluation of 30 percent. 4. The veteran also is disabled due to alcohol and drug abuse which is a result of his own willful misconduct. 5. He does not have anatomical loss or loss of use of either hand or foot; he has not lost the sight of both eyes; and he is not permanently helpless or permanently bedridden. 6. The veteran was born in September 1952, has completed three years of college, had a military occupational speciality as hull technician (related civilian occupation of shipfitter) and had postservice occupational experience as a laborer, and construction worker. He reports last working in March 1989. 7. The appellant's innocently acquired disabilities are not of sufficient severity as to permanently preclude him from engaging in substantially gainful employment consistent with his age, education and occupational experience, and they would not render the average person incapable of following a substantially gainful occupation. CONCLUSION OF LAW The appellant is not permanently and totally disabled within the meaning of governing laws and regulations. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.301, 3.321, 3.340, 3.342, 4.31, 4.104, 4.114, 4.118, 4.124a, 4.132 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant's claim is well-grounded within the meaning of 38 U.S.C.A.. § 5107. That is, he has presented a claim which is plausible. Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The law authorizes payment of pension to a veteran of war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521. Permanent and total disability ratings for pension purposes are authorized for disabling conditions not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.342. Total disability will be considered to exist where there is present an impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled veteran. 38 C.F.R. § 3.340. Additionally, where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the VA Schedule for Rating Disabilities (Rating Schedule) but is found to be unemployable by reason of his or her disability or disabilities, age, occupational background, and other related factors, a permanent and total disability rating on an extraschedular basis may be approved. 38 C.F.R. § 3.321(b). A review of the record discloses a report of functional assessment, dated in July 1985, from the South Carolina Vocational Rehabilitation Department. It was indicated that the appellant's prognosis for obtaining employment was poor because of a ten year history of psychiatric disability with little change. In a statement, dated in December 1985, R. Ligon Dougherty, a counselor with the South Carolina Vocational Rehabilitation Department, related that the appellant was found to be ineligible for vocational rehabilitation services. It was felt that the appellant's medical disability had continued to constitute a significant handicap to employment. The counselor doubted whether the appellant would ever be able to obtain or maintain gainful employment for a reasonable period of time. A VA outpatient report of November 1989 reflects that the appellant complained of back pain radiating to the left leg and knee. The impression was musculoskeletal strain. In January 1990, he reported feeling depressed and referred to a history of alcohol and marijuana abuse. In February 1990, he reported that he had been struck by a car and had then experienced pain in the lower back, left leg and left ankle. The impression was a contusion. The appellant was hospitalized at a VA medical facility from March to April 1990. It was indicated that his medical history was significant for a diagnosis of paranoid schizophrenia in 1974. He related that he was unable to work properly because of alcohol abuse; in addition, he remarked that he had lost numerous jobs and lost relationships with women and friends because of drug and alcohol abuse. Physical examination revealed findings which were within normal limits. Laboratory studies were significant for normocytic anemia with lowered hemoglobin and hematocrit levels. During hospitalization, medication was administered for treatment of hallucinations and looseness of associations, however, he continued to exhibit paranoid ideation during his hospital stay. At discharge, he was described as suspicious but stable. The primary diagnosis was alcoholism. Additional diagnoses included paranoid schizophrenia; anemia secondary to alcoholism, resolved; mild alcoholic hepatitis; low back pain; tinea pedis; and a history of polydrug abuse. A VA outpatient treatment entry reflects that the appellant was evaluated by the psychology service in April 1990 following his discharge from hospitalization. The assessment was that he spent the majority of his time trying to get help with his disability claim. Subsequent VA outpatient treatment records reflect continuing use of alcohol as well as cocaine and marijuana. The appellant was noncompliant with psychotropic medication. A VA general medical examination was performed in January 1991. It was related that the appellant's primary problem was his ongoing alcoholism, with the veteran consuming six beers per day, as well as plus or minus a half a pint of liquor per day. He denied a history of alcoholic pancreatitis, withdrawal seizures, delirium tremens, but had reportedly had mild alcoholic hepatitis in the past. The veteran also indicated that he had experienced mild anemia in the past, however, the examiner noted that recent hematocrit levels were within normal limits. The veteran noted that he had been unemployed for the last several years. He referred to a history of low back strain although he had never been hospitalized and denied then current back complaints. The veteran also indicated that he had been involved in a motor vehicle/pedestrian accident in February 1990 from which he experienced intermittent complaints of left tibial pain. Physical examination was significant for an eight centimeter well healed scar at the left upper back region, and for a muddy sclera. Peripheral pulses were 2+/4 and equal throughout. The liver was percussed to 10 centimeters in the right midclavicular line. The veteran admitted to feeling that someone was telling him what to do notwithstanding the fact that no one was physically present. The impressions included history of mild alcoholic hepatitis in the past; history of low back strain in the past, currently asymptomatic; a history of anemia presumed secondary to ongoing alcoholism, currently asymptomatic; and polysubstance abuse with alcohol being the primary substance abused. The appellant was also accorded a VA psychiatric examination in January 1991. He referred to a history of substance abuse, and paranoid schizophrenia. He indicated that he had been noncompliant with keeping appointments in a VA detoxification program, and had been drinking "a twelve pack per week." He denied crying spells, but believed that he was withdrawn from others. He reported visual hallucinations, but denied auditory hallucinations. He admitted to some ideas of reference and grandiosity, difficulty sleeping, and decreased appetite. Mental status examination disclosed that the appellant's speech was slow and deliberate. Affect was somewhat restricted, but he was fully alert and oriented. He recalled two out of three objects at five minutes, and he recalled the names of recent Presidents correctly with the exception of President Ford. He performed serial sevens to the 50's missing one. His digit span was six forward and four in reverse. Proverb interpretation was abstract and insight and judgment were fair. The examiner stated that the veteran smelled of alcohol, and on questioning the veteran admitted to drinking the prior evening. The diagnoses were alcohol abuse and paranoid schizophrenia. The examiner commented that the appellant was mildly to moderately impaired in his ability to function occupationally, and mildly impaired in his ability to perform socially because of psychiatric disability. Compliance with an alcohol detoxification treatment program was recommended. In September 1990, the veteran was seen at a VA outpatient clinic with complaints of leg pain that was progressively increasing. Physical examination revealed equal reflexes, full pulses, normal sensory findings, no synovial changes, normal motor function, and negative straight leg raising test results. The diagnosis was leg pain. A VA outpatient treatment entry of February 1991 indicates that the appellant complained of left knee pain. Inspection of the left knee revealed full range of motion and no warmth, swelling, erythema, tenderness or laxity. The assessment was left knee strain. X-ray examination of the left knee was within normal limits. In March 1991, he complained of intermittent chest pain over the prior three months. Physical, chest x-ray and electrocardiographic examinations were conducted. The assessment was chest pain, probably musculoskeletal in origin. In July 1991, the diagnosis was changed to costochondritis. This diagnosis was also suspected following complaints of chest pain in April 1992. A hearing was held before a VA hearing officer in November 1992. The appellant testified that he had been gainfully employed with shipping firms during the mid-1970's. He stated that he was not currently taking medication for schizophrenia. He reported that he had sustained injury to the back and left leg in a car wreck in 1984. He related that in February 1990, he had been struck by a car while he was riding on the handlebars of a bicycle; that he had sustained a contusion of the left ankle and knee; and that he had experienced pain, swelling and giving way of the knee and ankle since the injury. He stated that he found it difficult to stand for any length of time or walk for any distance because of left knee and ankle discomfort. He testified he had been taken to the emergency room of a hospital around March of 1992 because of an episode of chest pain. He remarked that he had numbness of the hands as a result of a cold weather exposure. The appellant has been assigned a 30 percent rating for paranoid type schizophrenia with personality disorder to reflect the RO's determination that the appellant's psychiatric disability is productive of definite impairment of social and industrial adaptability. A 50 percent rating for paranoid schizophrenia requires considerable impairment of social and industrial adaptability. 38 C.F.R. § 4.132, code 9203 (1994). In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals (Court) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VA O.G.C. Prec. Op. 9-93, 59 Fed.Reg. 4752 (1994). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). Although the appellant reports that he experiences paranoid feelings and visual hallucinations, the most recent psychiatric examination for rating purposes disclosed that mental clarity was adequately preserved, as evidenced by tests of recall, calculating ability and proverb interpretation. Significantly, an examiner, who had the opportunity to evaluate the appellant's history and behavior during the examination, concluded that his psychiatric disability produced only mild to moderate occupational impairment, and only mild social impairment. In all, social and industrial inadaptability exclusively referable to the appellant's psychiatric disability is not more than definite in degree. Criteria for a 50 percent rating for psychiatric disability have not been satisfied. The record is replete with treatment entries reflecting that the appellant has problems with alcohol and drugs and that he has great difficulty controlling substance abuse. Indeed, during the most recent VA hospitalization of record, treatment was provided for alcoholism and a history of substance abuse, disorders which the veteran himself conceded left him unable to work, and responsible for the destruction of relationships with other people. In this regard, the Board acknowledges the fact that the simple drinking of an alcoholic beverage by itself, or the isolated and infrequent use of drugs by itself, is not of itself willful misconduct. If, however, in the drinking of a beverage to enjoy its intoxicating effects, or in the use of a drug to enjoy or experience its effects, intoxication or the drug effects result proximately and immediately in disability or death, the disability or death will be considered to be the result of the veteran’s own willful misconduct. 38 C.F.R. § 3.301(c)(2)(3). Accordingly, as there is no competent evidence showing that the veteran’s drug or alcohol abuse is due to a disorder incurred or aggravated in service, the Board must conclude that the disability caused by the veteran’s alcohol and drug abuse is due to his own misconduct, and that substance abuse may not be considered in determining his entitlement to pension benefits. The appellant has been assigned a zero percent rating for a disability classified as history of hypertension. A 10 percent rating for hypertensive vascular disease (essential hypertension) requires diastolic blood pressure predominantly 100 or more; in addition, when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent will be assigned. 38 C.F.R. § 4.104, code 7101 (1994). Repeat blood pressure readings recorded on the most recent medical examination were all normal, and no disorders of the heart or vascular system were demonstrated. Evaluations have ruled out heart disease as a cause of the appellant's chest pain. There is no indication from the record that the appellant currently uses antihypertensive medication. Criteria for an evaluation in excess of zero percent for any current disability from hypertension have not been satisfied. The appellant has been assigned a zero percent rating for headaches. Headaches are rated by analogy to migraine. 38 C.F.R. § 4.20 (1994). A 10 percent rating for migraine requires characteristic prostrating attacks averaging one in two months over the last several months. 38 C.F.R. § 4.124, code 8100 (1994). Recent medical records do not reveal prostrating headaches. Significantly, in testimony at a personal hearing, the appellant did not identify headaches as among the disabilities which he claimed rendered him unable to work. The criteria for a ten percent evaluation for any current disability from headaches have not been satisfied. The appellant has been assigned a zero percent rating for a disability classified as history of alcoholic hepatitis with anemia. A 10 percent rating for infectious hepatitis requires demonstrable liver damage with mild gastrointestinal disturbance. 38 C.F.R. § 4.114, code 7845 (1994). Recent examinations demonstrated neither elevated liver function studies nor anemia, and it was determined that past hepatitis was only mild in degree. Significantly, in testimony at personal hearing, the appellant did not identify hepatitis as among the disabilities which he claimed rendered him unable to work. Accordingly, the criteria for a 10 percent rating for any current disability from hepatitis have not been satisfied. The appellant contends that he has significant disability from costochondritis, numbness of the hands, as well as residuals of injuries to the back, left knee and left ankle. However, save a scar at the back, which is well healed and not productive of any limitation of back function, (hence, not warranting more than a zero percent rating pursuant to 38 C.F.R. §§ 4.31, 4.118 (1994)), the clinical findings do not substantiate his contentions. Indeed, recent medical evaluations demonstrated good range of motion of all joints. Physical examination showed no evidence of joint deformity or other indications of remote trauma; x-ray examination revealed no abnormality of the left knee. Any residuals of reputed injuries sustained in automobile-related accidents are not shown to produce any current impairment. No neurovascular abnormalities of the hands were identified on examinations. As a result of the Board’s evaluation of the veteran’s disabilities it is evident that he does not have a single disability which is totally disabling, and that the combined disability rating for all of his disabilities which are not the result of his own willful misconduct does not exceed 30 percent. 38 C.F.R. § 4.25 (1994). Further, it is concluded that the appellant does not have any of the various combinations of impairments which would entitle him to a presumption of permanent and total disability pursuant to 38 C.F.R. § 4.15 (1994). Accordingly, the veteran does not objectively warrant a permanent and total disability evaluation for pension purposes. 38 U.S.C.A. § 1502(a)(1); 38 C.F.R. § 4.16. The "subjective" standard for pension eligibility is also for consideration. In this respect, 38 C.F.R. § 3.321(b)(2) provides that pension may be granted "where the evidence of record 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[.]" In this regard, the appellant's April 1990 claim for pension benefits indicates that he was born in September 1952; that he has completed three years of college; and that he has occupational experience as a worker in ship construction and as courier/messenger and as a laborer. Hence, the veteran is a relatively young man, with a solid educational background. While some jobs may not be suitable for the veteran due to his innocently acquired disorders, the preponderance of the evidence is against a finding that these disorders alone preclude finding a job in the national economy consistent with the veteran’s age, education, and occupational experience. Indeed, a careful analysis of the record shows that if the veteran is unemployable, it is due to his alcohol and polydrug abuse, disorders which cannot be considered as neither has been shown to be other than as a result of his willful misconduct. 38 C.F.R. § 3.301(c)(2); Hayward v. Derwinski, No. 90-159 (U.S. Vet. App. Apr. 22, 1991). The Board therefore concludes that the evidence of record is against entitlement to nonservice-connected pension benefits. 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. §§ 3.301, 3.321, 3.340, 3.342, 4.15, 4.16, 4.17. In reaching this decision the Board acknowledges the veteran’s receipt of supplemental security income from the Social Security Administration. Significantly, however, a veteran’s entitlement to pension takes "into consideration ever-changing factors reflecting permanent and total disability[.] ... The adjudicator’s primary focus in evaluating pension claims is the present condition of the veteran and whether the evidence, including consideration of age, reflects permanent and total disability." Abernathy v. Principi, 3 Vet.App. 461, 464 (1992) quoting a Motion of the Secretary of Veterans Benefits at 3-4 (emphasis added). Cf. Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (Where an increased rating is at issue, it is the present level of disability that is of primary concern.). Accordingly, as the finding of a "disability" in the 1980’s under the statutes governing supplemental security income, 42 U.S.C. § 1382 et seq. (1988 ed. Supp. V), was based on medical examinations conducted in the 1980’s, we find that the VA examinations and outpatient clinic records from the 1990’s provide more than sufficient evidence to evaluate the veteran’s present entitlement to pension benefits, and that a remand for records from the 1980’s would be inconsistent the Board’s duty to enter just and speedy decisions. 38 C.F.R. § 20.1 (1994). The Board further acknowledges the assessment of a state vocational rehabilitation department that the appellant would likely never be able to maintain gainful employment. The state agency determined, however, that the appellant's inability to work was attributable not only to schizophrenia, but to substance abuse as well, a disability which is due to the veteran’s own willful misconduct, and hence not pertinent to the claim presented. As the current medical evidence indicates that the appellant's social and industrial inadaptability stems primarily from substance abuse rather than from psychiatric disability, the opinion of the state vocational rehabilitation department does not place the evidence in equipoise. ORDER A permanent and total disability rating for pension purposes is denied. DEREK R. BROWN 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. 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.