BVA9505656 DOCKET NO. 93-07 945 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from June 1965 to December 1968. This appeal arises from 1992 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied a permanent and total disability rating for pension purposes. The case was sent to the Board of Veterans' Appeals (Board) in April 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that symptoms of his coronary artery disease and other disabilities prevent him from obtaining or maintaining gainful employment, and that he has been found to be an unsuitable candidate for vocational rehabilitation because of the symptoms of his coronary artery disease. He requests a permanent and total disability rating for pension purposes. 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, and for the following reasons and bases, it is the decision of the Board that the evidence supports granting a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The veteran was born in December 1947; he has a high school education; he has employment experience as a self-employed yard worker, clerk in a food store, and a line worker for an electric company; he has not worked since February 1990. 2. His primary disabilities are hiatal hernia, bronchitis and coronary artery disease. 3. The hiatal hernia produces occasional reflux esophagitis warranting a 10 percent rating; the bronchitis produces moderate impairment warranting a 10 percent rating; and the coronary artery disease precludes ordinary manual labor warranting a 60 percent rating. 4. He has a deviated nasal septum on the left, history of bilateral hearing loss, history of a skin disorder, varicose veins of the right calf and leg, and various joint pains that produce no significant impairment and do not warrant ratings in excess of zero percent. 5. The combined rating for the veteran's various disorders is 70 percent. 6. His disabilities are totally disabling and permanently prevent him from engaging in all types of substantially gainful employment consistent with his age, education and work history. CONCLUSION OF LAW The veteran is less than 100 percent disabled; he is unemployable by reason of permanent disabilities. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.342, 4.15, 4.16, 4.17 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual Background The veteran served on active duty from June 1965 to December 1968. He was born in December 1947. The veteran's service medical records do not show any significant disability. The veteran submitted a claim for VA compensation in March 1991. In it, he requested service connection for fungus of the hands, post-traumatic stress disorder, and heart trouble. The veteran underwent VA examination in April 1991. He reported employment experience as a yard worker and clerk in a food store. He related that he had been unemployed since February 1990. He complained of chest pains, shortness of breath, rash on the side of his neck and hands, and right knee pain. He gave a history of a broken nose and complained of decreased hearing. Color photographs of his hands and neck showed his hands to be clear and pseudofolliculitis under the chin. He complained of occasional regurgitation and heartburn after eating spicy foods which he occasionally treated with a medication. There was full range of motion of the right knee. He stated he could only walk one quarter of a mile before developing shortness of breath. He complained of a chronic cough with occasional sputum. The diagnoses were history of broken nose with deviated nasal septum; pseudofolliculitis; history of hearing loss; history of myocardial infarction, chest pain; bronchitis; history of reflux esophagitis; and arthralgia of the right knee of unknown etiology. The veteran underwent VA psychiatric examination in April 1991. He gave a history of alcohol abuse. The diagnosis was alcohol abuse and dependence. The psychiatrist concluded that symptoms of anxiety were insufficient to warrant a diagnosis, and no other psychiatric disorder was diagnosed. On an Income--Net Worth and Employment Statement, dated in October 1991, the veteran reported that he had a high school education. He reported work experience as a line worker for an electric company and that he had last worked in January 1990. VA medical reports show that the veteran was treated primarily for a heart disorder in 1991 and 1992. A summary of hospitalization from August to September 1991 shows that he underwent coronary artery bypass times three for coronary artery disease. Post surgical treatment in 1992 showed that his heart condition was stable. A report from Warren B. Dale, M.D., dated March 1992, notes that the veteran had occasional angina and chest pain in the sternal area with tenderness, and that he got tired very easily and became dyspneic. It was noted that lifting caused severe sternal pain, and the physician concluded that the veteran was disabled for gainful employment. The veteran underwent a VA examination in April 1992. An upper gastrointestinal series performed for the VA because of reflux esophagitis showed that the veteran had a small sliding-type hiatus hernia. It was noted that he had a history of a rash of his neck. Examination of the skin showed no abnormalities. It was noted that he had a history of a broken nose with blockage of the left nasal passage. No abnormalities of the nose were found. He complained of decreased hearing and of occasional high-pitched ringing sounds. He reported chest pain after exertion one to two times a month. It was noted that he took various medications for his cardiovascular problem, including Aspirin and Nitroglycerin. He had varicosities of the right medial calf and lower leg which were tortuous with a diameter of .3 to .5 centimeters. He complained of chronic cough mainly in the morning with scanty sputum production. He had shortness of breath and related that he could walk one-half mile before he had to stop because of this problem. His lungs were clear to auscultation and percussion without rales, rhonchi or wheezes. He reported frequent heartburn which was worse after eating spicy foods and tomato- based foods. His abdomen was without organomegaly, masses or tenderness. Bowel sounds were normoactive and there was no rebound tenderness. The diagnoses were history of hearing loss; arteriosclerotic cardiovascular disease, post coronary artery bypass grafts (functional 1 to 2); varicosities of the right medial calf; bronchitis; and history of hiatal hernia with reflux esophagitis. The veteran also underwent VA orthopedic examination in April 1992. He complained of various joint pains and the examiner concluded that the veteran had symptoms of mild degenerative joint disease in the knees, especially the right, and the left shoulder, pending X-rays. X-rays of the knees and shoulders showed no abnormalities. A summary of the veteran's VA hospitalization from June 1992 shows that he underwent left heart catheterization. The impressions were three-vessel coronary artery disease, patent saphenous vein graft to the diagonal branch, patent sequential vein graft to the second and third obtuse marginals, and well- preserved left ventricular function. It was noted that the veteran had evidence of three-vessel disease, but with patent grafts, and that he continued to have angina which was felt to be more likely due to a diffusely diseased but nonbypassable right coronary artery. He was recommended for maximum medical management. A report from a vocational rehabilitation counselor, dated in August 1992, notes that the veteran was felt to be incapable of employment and not a suitable candidate for vocational rehabilitation services due to symptoms of his heart disorder. An October 1992 RO rating decision listed the veteran's disabilities and ratings. They are: Coronary artery disease rated 30 percent, bronchitis rated 10 percent, and a skin condition, a psychiatric condition, broken nose with deviated nasal septum, bilateral hearing loss, reflux esophagitis, and arthralgia of the right knee, each rated zero percent because not found or not significantly disabling. The combined rating was 40 percent. It was also noted that he had an alcohol abuse and dependence disorder that was considered the result of willful misconduct. Correspondence from the veteran, dated in March 1994, indicates that he was considered 100 percent disabled by the Social Security Administration (SSA). B. Legal Analysis The veteran's claim for a permanent and total disability rating for pension purposes is well grounded, meaning it is plausible. I find that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). The record shows that the veteran was born in December 1947 and has a high school education. It also reveals that he is not working and last worked around February 1990. Unemployment of itself, however, does not establish unemployability. The evidence must show that, by reason of permanent disability, the veteran is so disabled as to be precluded from following a substantial gainful occupation. In determining this question, his age, education, occupational experience, and the nature and extent of his disabilities are considered. 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. §§ 3.340, 3.342, 4.15, 4.16, 4.17. The report of the veteran's VA psychiatric examination in April 1991 shows a diagnosis of alcohol abuse and dependence. This disability is considered the result of the veteran's own willful misconduct. It may not be considered in determining his entitlement to a permanent and total disability rating for pension purposes. 38 C.F.R. § 3.301 (1994). After consideration of all the evidence, including the veteran's medical history, the Board finds that it indicates the presence of three primary disabilities which are: Hiatal hernia, bronchitis and coronary artery disease. These disabilities are assigned ratings 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 evidence indicates that the veteran's hiatal hernia is manifested by occasional reflux esophagitis that warrants a 10 percent rating under Diagnostic Code 7346; the bronchitis is manifested by slight dyspnea and other symptoms that cause moderate impairment and warrants a 10 percent rating under Diagnostic Code 6600; and the coronary artery disease is manifested by chest pain and other symptoms which in the judgment of the Board prevent the veteran from performing more than light manual labor and warrant a 60 percent rating under Diagnostic Code 7005. In arriving at the 60 percent rating for the heart disease, reasonable doubt was resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The evidence also indicates that the veteran has complaints of various joint pains, varicose veins of the right calf and leg, a deviated nasal septum on the left, a skin condition, and history of bilateral hearing loss which are not currently found or do not produce significant functional impairment to warrant ratings in excess of zero percent under Diagnostic Codes 5003, 7120, 6502, 7806, and 6100-6110, respectively. The above-noted ratings for the veteran's disabilities rather than the ratings assigned by the RO best reflect his disability picture and, combining to 70 percent, meet the disability requirements based on percentage standards for a permanent and total disability rating for pension purposes contemplated by the Schedule for Rating Disabilities. 38 C.F.R. §§ 4.16, 4.17, 4.25. A physician concluded that the symptoms of the veteran's heart disease rendered him too disabled for gainful employment and a vocational rehabilitation consultant found the veteran to be an unsuitable candidate for vocational rehabilitation due to symptoms of his heart disorder. The evidence indicates that the veteran's work experience is primarily as a manual laborer, and in the judgment of the Board the symptoms of his coronary artery disease prevent him from performing such labor. Additionally, the veteran relates that the SSA found him to be 100 percent disabled. While such a determination by the SSA is not binding on VA, it does add to the weight of the evidence that indicates the veteran is unemployable. Under the circumstances, and with resolution of reasonable doubt in favor of the veteran, the Board concludes that he is unemployable by reason of permanent disability. Hence, he is entitled to a permanent and total disability rating for pension purposes. ORDER A permanent and total disability rating for pension purposes is granted. J. E. DAY 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.