BVA9501678 DOCKET NO. 93-04 440 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant, who was born in September 1929, had active service from August 1952 to August 1954. This matter came before the Board of Veterans' Appeals (Board) from a February 1992 rating decision of the St. Petersburg, Florida, Regional Office (RO). In November 1992, he requested a personal hearing; however, in February 1993, he withdrew said request. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that his multiple disabilities, including human immunodeficiency virus (HIV) infection, diabetes mellitus, heart failure, residuals of hepatitis, a sinus condition, and sickle cell anemia, are of such severity as to preclude substantially gainful employment. It is requested that a Department of Veterans Affairs (VA) examination be provided to determine the nature and severity of his disabilities. Additionally, it is requested that the benefit of the doubt doctrine be applied. 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 appellant'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 evidence is in equipoise to warrant a grant of a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The appellant was born in September 1929 and has completed high school. 2. He has had occupational experience as a custodian, and reportedly has not been gainfully employed since 1990. 3. The appellant's principal disabilities consist of HIV infection, discogenic disease of the entire spine with radiculopathy involving the left upper and lower extremities (status post motor vehicle accident), urticaria/dermatitis, bilateral sensorineural hearing loss with tinnitus, adult-onset diabetes mellitus, hyperopia/presbyopia with early diabetic retinopathy, residuals of hepatitis, and Glucose-6-phosphate Dehydrogenase Deficiency anemia. 4. It is more likely that the appellant has disabilities which are of sufficient severity and permanence as would prevent him from engaging in some type of substantially gainful employment consistent with his age, education, and occupational experience on a permanent basis. CONCLUSION OF LAW The appellant is less than 100 percent disabled, but is unemployable by reason of permanent and total disability. 38 U.S.C.A. §§ 1502, 1521, 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(2), 3.340, 3.342, 4.15, 4.17, 4.19 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the Board's favorable determination of the issue on appeal, the appellant's claim for entitlement to a permanent and total disability rating for pension purposes is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) and the evidence adequate. In order to establish entitlement to a permanent and total disability rating for pension purposes, the veteran must be permanently and totally disabled from disabilities not the result of willful misconduct. 38 U.S.C.A. § 1521. A person shall be considered permanently and totally disabled if unemployable as a result of disability reasonably certain to continue throughout the person's life, or is suffering from a disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1502; 38 C.F.R. §§ 3.340, 3.342, and Part 4; and Brown v. Derwinski, 2 Vet.App. 444 (1992). The provisions of 38 C.F.R. § 4.15 state, in pertinent part, with regard to total disability ratings: The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. The provisions of 38 C.F.R. § 4.17, in pertinent part, state that for the purpose of pension, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. The provisions of 38 C.F.R. § 4.16(a) (1993), in pertinent part, state that: Total disability ratings for compensation 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 as a result of service-connected disabilities: 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. The provisions of 38 C.F.R. § 4.17 and 3.321(b)(2), in pertinent part, provide for extraschedular assignment of a permanent and total disability rating, even where the schedular rating is less than total, when the veteran is unemployable by reason of disability. Additionally, marginal employment is not incompatible with being precluded from substantially gainful employment. 38 C.F.R. § 4.17(a). Age may be considered in evaluations of disability for the purposes of pension. 38 C.F.R. § 4.19. The appellant, who was born in September 1929, is approximately 65 years old. His applications for VA disability benefits received in August 1991 reflect that he has completed high school, and last worked in 1990 as a custodian, earning $3,000 in the last year. In said applications, disabilities he primarily referred to were residuals of hepatitis, sickle cell anemia, diabetes, and heart failure. A Social Security Administration award notice dated in September 1991 indicates that the award of benefits was based on retirement, not disability. It is unclear as to the exact reason he retired; whether it may have been due to advancing age, a combination of age and his disabilities, or other reasons. Interestingly, private clinical records in July 1991 reported a one-year history of HIV infection; and, perhaps, this may have been a factor in his decision to retire. Regardless, the RO, in its adverse February 1992 rating decision denying pension, rated the appellant's nonservice-connected disabilities as follows: Adult-onset diabetes mellitus, 20 percent; urticaria, 10 percent; and sinus condition and sickle cell trait, each noncompensable. When combined, these disabilities were considered by the RO as 30 percent disabling. While he has additional nonservice-connected disabilities, which the RO has not formally rated, the Board will consider all of his principal disabilities herein in explanation of its favorable determination of the issue on appeal. The appellant's diabetes mellitus is relatively well-controlled by diet and oral hypoglycemic agents. See September 1991 VA outpatient report, reflecting a low caloric diabetic diet, a weight recorded as 208 pounds with a goal stated as 185 pounds, and his height recorded as 5 feet 10 inches; and an October 1993 private medical record showing his weight was 174 pounds. See also an August 1991 private clinical record reflecting complaints of slight fatigue, a fasting blood sugar of 125, and an assessment of good diabetes control; and private laboratory studies dated in 1992 reflecting fasting blood sugar values predominantly under 150. Moreover, there is no recent clinical evidence of more than moderately disabling diabetes or definite complications thereof, except for early diabetic retinopathy. Early diabetic retinopathy as shown on private eye evaluation in September 1993 has not significantly affected eyesight (as will be explained below in a discussion of his visual acuity). Therefore, the 20 percent assigned for moderately disabling diabetes under Diagnostic Code 7913 appears appropriate. The evidence reveals that in July 1993, the appellant sustained injuries to the cervical and dorsolumbar spine in a motor vehicle accident, when his automobile was struck from behind. Clinically, there was decreased painful motion of the entire spine and weakness and atrophy of the left lower extremity. More recent private medical records dated in 1993 and 1994 reveal discogenic disease of the entire spine on MRI in late July 1993, and left sided cervical and lumbar radiculopathy primarily affecting the left upper and lower extremities. For example, in an October 1993 statement, Francisco B. Gomes, M.D., reported the appellant had complaints of cervical pain and stiffness, left arm pain and numbness, and low back and left leg pain. Clinically, his posture was described as stooped, and he had an antalgic gait requiring use of a cane. There were mild weakness and diminished sensation of the left lower and upper extremities, and motor status of the upper extremities was normal although some left hand grip strength weakness was noted. The cervical and lumbosacral spine had no more than mild and moderate limitation of motion, respectively, but severe hypertonicity of the cervical and lumbar paraspinal musculature was reported. Based upon this evidentiary record, the Board rates the disabilities of the spine as follows. The cervical spine disability is manifested by no more than slight limitation of motion. Under Diagnostic Code 5290, slight limitation of motion of the cervical segment of the spine may be assigned a 10 percent rating. However, given the evidence of severe cervical muscle spasms and mild left upper extremity weakness, the overall cervical neurologic symptoms represent a moderate degree of disability. Therefore, the cervical discogenic disease more nearly approximates a 20 percent rating for moderate intervertebral disc syndrome with recurring attacks under Diagnostic Code 5293. The lumbosacral disability is manifested by no more than moderate limitation of motion. Under Diagnostic Code 5292, moderate limitation of motion of the lumbar segment of the spine may be assigned a 20 percent rating. However, given the evidence of severe lumbar muscle spasms and mild left lower extremity radiculopathy with some weakness and gait impairment, the overall lumbar neurologic symptoms represent a moderate degree of disability. Therefore, the lumbar discogenic disease more nearly approximates a 20 percent rating for moderate intervertebral disc syndrome with recurring attacks under Diagnostic Code 5293. With respect to the skin, a report of VA hospitalization in August 1991 reflects that the appellant had placque-like lesions over the arms, chest, neck, and back with some excoriations; and urticaria was diagnosed. Similar lesions were reported in a September 1991 outpatient record. Private medical records reflect treatment for skin problems later that year and in June 1993, when mild atophic dermatitis was assessed. The variously diagnosed skin disability may be rated by analogy to eczema under 38 C.F.R. § 4.20, Diagnostic Code 7899-7806. It is reiterated that the RO rated the skin disability as 10 percent disabling. This 10 percent rating appears appropriate, since the skin involvement primarily affects small, nonexposed bodily areas; and constant exudation or itching, extensive lesions, or marked disfigurement have not been clinically shown to warrant a higher rating under that code. With respect to a blood disorder, the report of VA hospitalization in August 1991 reflects that the appellant underwent a sickle-cell laboratory screen, which showed sickle cell trait. His hemoglobin was 7.5 and hematocrit 21.7. However, while anemia was diagnosed, this was diagnosed as Glucose-6-phosphate Dehydrogenase Deficiency (G6PD), apparently the drug-sensitive variety since the appellant was instructed of the risk of drug exacerbation of that deficiency disorder. Significantly, sickle cell anemia was not diagnosed. For informational purposes, G6PD deficiency "is a hereditary enzyme defect that causes episodic hemolytic anemia because of decreased ability of red blood cells to deal with oxidative stresses....Sickle cell anemia is an autosomal recessive disorder in which an abnormal hemoglobin (hemoglobinopathy) leads to chronic hemolytic anemia with a variety of severe clinical consequences." Charles A. Linker, M.D., Blood in Current Medical Diagnosis and Treatment, 426- 427 (Lawrence M. Tierney, Jr., M.D., et al. eds., 33rd ed. 1994). Diagnostic Code 7714 provides that sickle cell trait alone, without a history of or current pathological findings directly attributable to such trait, is not a ratable disabilty. It is noted that the RO rated sickle cell trait as noncompensable under Diagnostic Code 7714. However, it appears appropriate to rate G6PD by analogy to sickle cell anemia under Diagnostic Code 7799-7714. Since the appellant had an episode of significant G6PD anemia during that August 1991 hospitalization and, as shown by private laboratory studies in January and May 1992, has had slightly decreased hemoglobin and hematocrit values thereafter, a 10 percent rating would be warranted for the equivalent of mild, asymptomatic sickle cell anemia. With regard to claimed heart and liver disorders, during private hospitalization in July 1991, the appellant was evaluated primarily for complaints of atypical chest pain and an icteric appearance. Significantly, no history of heart disease was given, and a myocardial infarction was ruled out. However, with respect to his being icteric, liver function tests were performed and elevated values were reported. Viral hepatitis was suspected, due to a history of recent raw oyster consumption; and a hepatitis antigen screen was positive. An abdominal ultrasound revealed no hepatosplenomegaly. Significantly, at hospital discharge, and during hospitalization the following month, liver function test results continued elevated. However, since demonstrable liver damage with mild gastrointestinal disturbance has not been recently clinically shown, no more than a noncompensable evaluation is warranted for healed, nonsymptomatic infectious hepatitis under Diagnostic Code 7345. The RO has not rated the appellant's defective hearing or eyesight problem. The recent clinical evidence, including a private audiological evaluation report dated in November 1994, reflects that average pure tone thresholds were 80 for the right ear and 85 for the left ear; and speech recognition discrimination scores were recorded as 80 percent and 84 percent in the respective ears. Under 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6101, these audiologic results meet the criteria for a 10 percent rating. With respect to his vision, the recent private clinical evidence includes a September 1993 eye evaluation record, which revealed corrected visual acuity of 20/20, bilaterally. Eyeglasses were prescribed. Another eye evaluation record dated in 1993 revealed visual acuity of 20/30, bilaterally, with lens cataract and beginning diabetic retinopathy. The refractive error of the eyes, assessed as presbyopia/hyperopia, does not warrant a compensable rating, since corrected visual acuity of 20/40 in each eye is noncompensable under Diagnostic Code 6079. For a compensable rating (10 percent) for visual acuity impairment, that code requires corrected visual acuity of 20/50 in one eye and 20/40 in the other eye. The RO has not rated the appellant's HIV infection but the Board finds that a noncompensable evaluation is appropriate at this time. Under Diagnostic Code 6351, a noncompensable evaluation may be assigned where aysymptomatic, following initial diagnosis of HIV infection, with or without lymphadenopathy or decreased T4 cell count. A 10 percent evaluation may be assigned, following development of definite medical symptoms, T4 cell count less than 500, and on approved medication(s); or with evidence of depression or memory loss with employment limitations. The evidentiary record reflects that in July 1991, a one-year history of HIV infection was reported in a private medical record. An April 1991 laboratory study confirmed HIV infection, and a T4 count was 698. In August 1991, he complained of slight fatigue, but good HIV control was assessed. Subsequent private laboratory studies in 1991 and 1992 have shown T4 counts somewhat above 500; and there is no evidence that approved medication for HIV infection has been prescribed, or that definite HIV infection medical symptoms or depression or memory loss have been shown. For informational purposes, a medical text states: Many individuals with HIV infection remain asymptomatic for years, with a mean time of approximately 10 years between exposure and development of AIDS....Patients whose CD4 counts are substantially above the threshold for initiation of antiviral therapy (500 cells/uL), should have counts performed every 6 months. Those who have counts near 500 cells/uL should have counts performed every 3 months....The percentage of HIV-infected persons who will ultimately progress to AIDS is not known. Harry Hollander, M.D. et al., HIV Infection in Current Medical Diagnosis and Treatment, 1078, 1094 (Lawrence M. Tierney, Jr., M.D., et al. eds., 33rd ed. 1994). In conclusion, the appellant's principal disabilities, which are disabilities for which service connection is not in effect, result in a combined disability evaluation of 63 percent, which when rounded off to the nearest degree divisible by 10, equals 60 percent. See 38 C.F.R. § 4.25, Combined Ratings Table. There is not a single disability ratable as 60 percent either. Therefore, he does not meet the percentage requirements of 38 C.F.R. § 4.17 for pension. However, the provisions of 38 C.F.R. § 3.321(b)(2) provide that an applicant for pension who fails to meet the percentage requirements but is found to be unemployable by reason of the nature of his disabilities, his age, occupational background, or other related factors, may be granted entitlement to permanent and total disability benefits on an extraschedular basis. The Board finds that given his age of 65 and his limited manual labor occupational background, together with his principal physical disabilities which have been shown to adversely affect gait, lifting, and bending, and which include HIV infection which while only potentially extremely debilitating, in reality results in reluctance of employers to hire those so affected, and, since it involves immunodeficiency, would likely be adversely influenced by stressful or strenuous activities, the Board has resolved reasonable doubt in his favor and finds that entitlement to a permanent and total disability rating on an extraschedular basis is warranted. 38 U.S.C.A. §§ 1502, 1521, 5107(b); 38 C.F.R. §§ 3.321(b)(2), 3.340, 3.342, 4.15, 4.17, 4.19. ORDER A permanent and total disability rating for pension purposes is granted, subject to the regulatory provisions governing payment of monetary awards. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.