Citation Nr: 0005398 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-08 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The appellant served on active duty from February 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), located in Boston, Massachusetts; the rating decision denied the appellant's claim for entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appellant's claim has been developed. 2. The appellant was born in September 1950; reported that he completed 4 years of high school; and indicated that he last worked full-time in the early 1990's in the cleaning field. 3. The appellant is not shown to be unable to pursue gainful employment by reason of his disabilities, and other factors pertinent to his disability picture. 4. The veteran's alcohol and drug abuse is due to willful misconduct and may not be considered for pension purposes. 5. The appellant's documented disorders do not demonstrate the presence of 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. CONCLUSIONS OF LAW 1. The appellant is less than 100 percent disabled and is not unemployable by reason of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.301, 3.321, 3.340, 3.342 and Part 4 (1999). 2. The assignment of an extra schedular rating is not warranted; the evidence of record does not show that the veteran's documented disorders present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant and his representative contend, in essence, that the appellant is entitled to pension benefits, as he is unemployable due to his disabilities. Initially, the Board finds that the appellant's claim for pension benefits is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not alleged that any records of probative value that may be associated with his claims folder and which have not already been sought are available. The Board also finds that all relevant facts have been properly developed. The Board accordingly finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The law authorizes the payment of pension to a veteran of a war who has the requisite service and who is permanently and totally disabled from disability not the result of the veteran's willful misconduct. 38 U.S.C.A. §§ 1502, 1521 (West 1991). 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 (1999). Total disability will be considered to exist where there is permanent 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 veteran. 38 C.F.R. § 3.340 (1999). All diagnoses for all disabilities should be listed and evaluated. Abernathy v. Derwinski, 2 Vet. App. 391, 394 (1992). The RO, as shown on an October 1997 rating decision, evaluated the appellant's disabilities as follows: chronic bronchitis and chronic obstructive pulmonary disease (COPD) (10 percent); tinea pedis with history of dermatitis and eczema (10 percent); and chronic hepatitis (10 percent). The nonservice-connected disabilities currently have a combined evaluation of 30 percent. He has no service-connected disabilities. A total disability rating is based primarily on the average impairment in earning capacity, that is, upon the economical or industrial handicap which must be overcome and not from individual success in overcoming it. 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; Provided, that permanent and total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (1999). 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. For the purpose of pension, the permanence of the percentage requirements of § 4.16 is a requisite. 38 C.F.R. § 4.17 (1999). Total disability ratings may be assigned, where 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: Provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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) (1999). With these provisions in mind, the Board finds that the appellant is not shown to be unemployable as a result of a lifetime disability. In essence, the appellant does not meet the disability percentage requirements of these pertinent regulatory provisions. Disability ratings are based on schedular requirements which reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 1991). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (1999). An evaluation of the level of disability present must also include consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.45 (1999). Additionally, weakness is as important as limitation of motion, and a part which becomes painful on use must be considered as seriously disabled. 38 C.F.R. § 4.40 (1999). Also, 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. 38 C.F.R. § 4.7 (1999). It is essential, both in the examination and evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Chronic Bronchitis and COPD The appellant's chronic bronchitis and chronic obstructive pulmonary disease (COPD) has been evaluated as 10 percent disabling by the RO. See 38 C.F.R. § 4.97 (1999). The report of private X-ray examination accomplished in December 1994 shows that evidence of COPD was indicated; cardiomegaly was not shown. The diagnosis was no active lung lesion. Another private X-ray report, dated in September 1997, includes a diagnosis of background COPD, with no intrathoracic process. In addition, the report of an August 1997 VA compensation and pension examination, the most recent examination of the appellant, noted that he presented with a history of frequent lung infection since 1980 and treatment with antibiotics in recent years for cough, phlegm, and shortness of breath. No hospitalizations for lung problems was noted. The appellant complained of chronic, intermittent shortness of breath associated together with exercise limitations. He added that he coughed every day but only produced sputum intermittently. Examination showed the appellant not to be in acute distress. No clubbing or cyanosis of the extremities was reported. Blood pressure was measured at 140/95. Nasal and pharyngeal membranes and structures were normal. Examination of the neck showed no adenopathy or thyroid enlargement. Chest was noted to be hyperresonant, and slightly increased with respect to AP diameter. Lung fields were noted to be clear, with no wheezes, rales, or rhonchi. Heart examination showed regular rhythm without a murmur or abnormal sound. The heart was not shown to be enlarged to percussion. The diagnosis was chronic bronchitis and COPD. In association with the above-discussed examination, the veteran was afforded pulmonary function testing as well as X- ray examination in August 1997. The report of pulmonary testing showed FEV1 findings of 119 percent predicted, and a FEV1/FVC ratio of 98 percent predicted. A diagnosis of normal volumes was included. It was also indicated that it was questionable as to whether the appellant had made his maximal effort during the testing. The report of X-ray examination reflected that the lungs were well-expanded and clear and that the bony structures and soft tissues were intact. The severity of a respiratory disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. Currently, the veteran is in receipt of a 10 percent disability rating under Diagnostic Code 6600 which contemplates chronic bronchitis manifested by FEV-1 of 71 to 80 percent of predicted value, or FEV-1/FVC of 71 to 80 percent of predicted value, or DLCO (SB) [Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method] 66 to 80 percent of predicted value. A 30 percent disability rating would be warranted for COPD manifested by FEV-1 of 56 to 70 percent of predicted value, or FEV-1/FVC of 56 to 70 percent of predicted value, or DLCO (SB) of 56 to 65 percent of predicted value. The Board notes that Diagnostic Code 6604, which involves the rating of COPD, is rated in the identical manner as chronic bronchitis. See Diagnostic Code 6600. To summarize, while the record is shown to contain current diagnoses of both chronic bronchitis and COPD, the report of pulmonary testing, also dated in August 1997, and noted above, showed FEV1 findings of 119 percent predicted, and a FEV1/FVC ratio of 98 percent predicted. Clearly, pursuant to both Diagnostic Codes 6600 and 6604, a rating in excess of 10 percent is not warranted. Tinea Pedis Tinea pedis with history of dermatis and eczema has been evaluated as 10 percent disabling by the RO. See 38 C.F.R. § 4.118 (1999). Several private treatment records are shown to be of record showing treatment afforded the appellant for tinea pedis and eczema. These include records dated in September 1981, April 1982, January 1989, June 1990, July 1992, and September 1995. A September 1981 final hospital summary showed a diagnosis of hypersensitivity reactions to hands and feet. An October 1981 final hospital summary noted a diagnosis of dyshidrotic eczema. An April 1982 final hospital summary shows that the appellant was admitted with a chief complaint of blisters on hands and feet. The diagnosis was dyshdrotic eczema. Other private medical records show treatment afforded the veteran from 1981 to 1983 for eczema; Prednisone was prescribed. VA medical records also show treatment afforded the veteran for tinea pedis and eczema. A hospital discharge summary dated in April 1985 is shown to include a diagnosis of tinea pedis with superinfection by proteus staph aureus and dipthroids. Another hospital discharge summary, showing that the appellant was admitted for approximately 2 weeks from June to July 1985, includes a diagnosis of tinea pedis and hands with severe intradermal reaction. In addition, the report of an August 1997 VA compensation and pension examination, the most recent examination of the appellant, noted that the appellant indicated that he began to develop recurrent infections involving his hands and feet in the early 1980's. He added that he had been informed that he had eczema. In addition, the appellant reported that over the years he had been followed for recurrent dermatitis of the hands, feet, scrotum, and groin area, and that he had been treated by means of both topical and systemic therapy, including the use of Prednisone. He added that he sometimes experienced severe secondary infections. Examination revealed scaling and peeling of the left plantar surface with scaling and peeling between most of the toes. Several toenails were noted by the examiner to be discolored with yellow-green color and white spots. The diagnoses were tinea pedis with onychomycosis and history of dermatitis of unknown cause with occasional secondary infection. Tinea pedis is rated, for VA rating purposes, by application, and by analogy, of the criteria set forth in VA's Schedule, 38 C.F.R. Part 4 § 4.118 (1999). See also 38 C.F.R. § 4.20 (1999). Under these criteria, the 10 percent evaluation currently assigned, pursuant to Diagnostic Code 7806, reflects exfoliation, exudation or itching, if involving an exposed surface or extensive area. If there is constant exudation or itching, extensive lesions, or marked disfigurement, a 30 percent evaluation is for assignment. Id. In light of the review of the medical records on file, to include the report of the above-noted August 1997 VA examination report, the evidence indicates that the appellant's tinea pedis and dermatitis involves an extensive area, and is accompanied by itching. However, there is no evidence of clinical findings which shows that the appellant experiences constant exudation or itching, extensive lesions, or marked disfigurement. As such, the current manifestations of the appellant's skin condition are shown to be consistent with the existing 10 percent rating. The criteria for a 30 percent rating in this instance is not satisfied. Chronic Hepatitis Chronic hepatitis has been evaluated as 10 percent disabling by the RO under VA's Schedule's Diagnostic Code 7345. See 38 C.F.R. Part 4 § 4.114 (1999). Under these criteria, infectious hepatitis with demonstrable liver damage with mild gastrointestinal disturbance is to be rated as 10 percent disabling. A 30 percent evaluation is warranted for infectious hepatitis with minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree but necessitating dietary restriction or other therapeutic measures. Several private treatment records are shown to be of record showing references to, diagnoses of, and/or treatment afforded the appellant for hepatitis (A, B, and/or C) over the course of several years. These include records dated in November 1983, April 1988, December 1988, August 1989, September 1990, December 1990, and December 1994, September 1995, and September 1996. Several VA medical records, noted to include records dated in November 1992, February 1993, June 1993, November 1995, and March 1996, also are shown to reference hepatitis. The report of an August 1997 VA compensation and pension examination, the most recent examination of the appellant, shows that the appellant reported that in the early 1980's, following liver function testing, he was informed that he had hepatitis. He added that he had a liver biopsy at a VA medical facility located in Jamaica Plain approximately 3 to 4 years ago, where he was told he had "chronic hepatitis." The examiner noted that these records were unavailable. On examination, the examiner noted that, upon observing the appellant's demeanor, current substance use was questioned. The appellant denied this query. The appellant gave a history of substance abuse since the 1970's, stating that he used alcohol, marijuana, cocaine, and heroin. He added that he used intravenous drugs while in the military in the 1970's. He reported currently using alcohol and, for social/recreational use, drugs. Abdominal examination showed that the liver was percussed down 3-4 centimeters but, it was added, the diaphragms were low. No other organs, masses, or tenderness was observed. Laboratory data, shown to have been dated in September 1995, were included in the report. The results showed: LDH - 174; SGPT - 143; alkaline phosphatase - 81; direct bilirubin - 0.4; and HCT - 42.5. Chronic hepatitis; and substance abuse, by history; was diagnosed. In view of the medical records associated with the appellant's claims folder, and, particularly, the findings reported as part of the above-noted August 1997 VA examination report, the evidence indicates a recent diagnosis of chronic hepatitis. However, there is no evidence to support clinical findings of gastrointestinal disturbance which necessitates dietary restriction or other therapeutic measures. As such, the 10 percent rating currently assigned is, under the facts of this case, proper. Summary Following a comprehensive review of the above-discussed disorders, the appellant is not shown to meet the basic criteria for a permanent and total disability rating enumerated above. A VA Form 21-526, Veteran's Application for Compensation or Pension, dated in May 1997, notes that the appellant was born in September 1950, and that he indicated that he had completed 4 years of high school. He reported that he had last worked in the early 1990's in the cleaning field. Additionally, it is noted that medical opinion to the effect that any of the appellant's disorders preclude him from being, in effect, gainfully employed, is not of record. The Board notes that according to various medical reports of record, both private and VA, the appellant is also shown to have been impaired by his dependence upon the use of alcohol and drugs. Primary drug and alcohol abuse is regarded as a product of willful misconduct and may not be considered in determining the veteran's entitlement to non-service- connected pension benefits. 38 C.F.R. § 3.301(c)(2) (1999) provides that alcohol abuse is considered willful misconduct (thus precluding pension benefits) but that "[o]rganic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin." 38 C.F.R. § 3.301(c)(3) (1999) contains similar language applicable to drug abuse. Therefore, alcohol dependence and substance abuse are deemed by statute to be the result of willful misconduct and cannot themselves be considered as a disability for purposes of pension benefits. As applied in this case, disability stemming from the veteran's well established abuse of drugs must be considered willful misconduct and will not be considered in determining entitlement to pension benefits. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (1999), whether or not they were raised by the appellant. The RO has found, and the Board finds, that the evidence discussed herein does not show that the appellant's documented disorders present such an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards. In particular, the identified disabilities have not required any periods of hospitalization in recent years. Moreover, in the absence of any need for an unusual amount or type of medical treatment, marked interference with employment is not indicated. Factors evidencing the inapplicability of the regular schedular standards have not been set forth, or are otherwise evident from the record. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (1999) is not warranted. The Board concludes that the appellant's combined disability picture does not meet either the average person test, 38 C.F.R. § 4.15 (1999), or the objective unemployable as a result of a lifetime disability test, 38 C.F.R. § 4.17 (1999). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, for the foregoing reasons and bases, the preponderance of the evidence is against the claim for pension benefits and, thus, there is no doubt to be resolved in favor of the appellant. ORDER A permanent and total disability rating for pension purposes is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals