BVA9507649 DOCKET NO. 92-08 257 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. K. Mulroy, Associate Counsel INTRODUCTION The veteran had active service from February 1970 to August 1972. This matter is currently before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a July 1990 rating decision from a local regional office in which it was determined that a nonservice-connected pension was not warranted. In a decision dated in May 1993, the Board remanded the case for additional development. In a decision dated in July 1994, the Winston-Salem, North Carolina, Regional Office (hereinafter RO) continued the denial of a nonservice-connected pension, and listed the veteran's nonservice-connected disorders as follows: residuals stroke, right radial neuropathy, assigned a 10 percent disability evaluation; hepatitis, 10 percent; depression, 10 percent; dermatitis of thighs, arms, and shoulders, which was determined to be noncompensable; and skin lesions, also determined to be noncompensable. This gave the veteran a combined rating of 30 percent. The veteran is represented by the American Legion. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a permanent and total disability evaluation based on his nonservice-connected disorders. He maintains that these disorders preclude him from obtaining and retaining gainful employment. In particular, he alleges that he can not obtain employment because prospective employers will not hire him after he informs them of his stroke in 1983, and after liver tests conducted during routine pre-employment physicals reveal his liver condition. 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(s). 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 claim for a permanent and total rating for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran has a high school education with some college training. He has had experience working as a mail clerk at a post office, as a fork-lift operator, chemical handler, security policeman and as a warehouseman, and has variously reported not being employed full-time since 1983 and 1986. 3. Right radial neuropathy is productive of mild symptomatology, but greater symptomatology has not been shown. 4. Hepatitis is productive of demonstrable liver damage with mild gastrointestinal disturbance, but minimal liver damage with associated fatigue, anxiety and gastrointestinal disturbance necessitating dietary restriction or other therapeutic measures has not been shown. 5. Depression is productive of mild impairment of social and industrial adaptability, but definite impairment has not been shown. 6. Dermatitis of thighs, arms, and shoulders is productive of slight, if any, exfoliation, exudation or itching of a nonexposed surface or small area, but exfoliation, exudation or itching of an exposed surface or extensive area has not been shown. 7. Reported skin lesions were not present on the last VA examination, and have not otherwise been shown to be productive of exfoliation, exudation or itching of an exposed surface or extensive area. 8. The veteran's disabilities are not productive of total disability and are not sufficient to render the average person unable to follow a substantially gainful occupation. 9. The veteran's chronic disorders do not permanently preclude him from engaging in substantially gainful employment consistent with age, education and occupational experience. CONCLUSION OF LAW A permanent and total disability rating for pension purposes is not warranted. 38 U.S.C.A. §§ 1155, 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.3, 4.15, 4.16, 4.17, 4.20, and Part 4, Diagnostic Codes 7345, 7806, 7899, 8009, 9209 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that the veteran has presented a claim that is plausible. The Board is satisfied that all reasonable efforts have been made in helping the veteran prove his claim. There is no indication of outstanding evidence, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. In determining whether a pension is warranted, the Department of Veterans Affairs (hereinafter the VA) is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49 (1991). As previously noted, the veteran had active duty from February 1970 to August 1972. Service medical records indicated that the veteran was treated for gastroenteritis, drug use, acute hepatitis, and neuropsychiatric problems variously described as nervousness, difficulty sleeping, adult adjustment reaction, depression, and passive-aggressive personality disorder. In private medical records dated in the early 1980's, it was noted that the veteran was treated and diagnosed with liver dysfunction, probability of chronic active hepatitis progression, rule out sarcoidosis, and definitive radial nerve palsy. In a VA examination dated in October 1984, a neurologist noted that the veteran reported a history of right radial neuropathy since 1983, and diagnosed mild, right radial neuropathy. A dermatologist noted that the veteran reported that four months ago, he developed an eruption on his arms, thighs and shoulders, and diagnosed subsiding dermatitis, etiology unknown. A gastroenterologist noted that the veteran had a history of hepatitis and stated that there were no residuals of hepatitis detected. In VA outpatient treatment records dated in the late 1980's and early 1990's, it was noted that the veteran was predominantly seen for various neuropsychiatric complaints, and was diagnosed with several disorders including drug and alcohol abuse and depression. In a record dated in March 1990, it was noted that the veteran complained of feeling run down, and he was diagnosed with possible hepatitis or cirrhosis. At a hearing dated in October 1991, the veteran testified regarding his past and current physical condition, and his employment history. Specifically, he stated that once he told prospective employers about his hepatitis in service and his stroke in 1983, he would not get interviews for the positions. He also stated that his right arm is not as strong as his left, that he is taking Prozac for his depression, that he has occasional outbreaks of skin problems that he counters by using mild soaps and by being more careful about himself, and he had been told that he has gastrointestinal problems because of his hepatitis. On a VA examination dated in December 1991, it was noted that the examination of the skin was within normal limits; that the liver was not palpable and not tender; that there was decreased grip strength regarding the right hand versus the left and that the veteran suffered from situational anxiety versus depression. In a VA intake summary dated in January 1992, it was noted that the veteran complained of irritability, depressed mood, withdrawn behavior and apathy, and that he had a history of polysubstance abuse, including alcohol abuse. Upon examination, he was noted to be calm and cooperative with good eye contact and relevant speech, and to have had no delusions, hallucinations or suicidal ideations. Thought processes were noted as normal and he was alert and oriented times four. It was also noted that his attention and concentration were good, and that judgment was good and insight was fair. Diagnosis on Axis I was polysubstance dependence, in remission and depressive disorder, not otherwise specified; Axis IV psychosocial stressors were noted as unemployment and rated as 4, severe; and Axis V current Global Assessment of Functioning (hereinafter GAF) Scale was noted as 60, with the highest in the past year as 55. Prognosis was deemed guarded. In outpatient treatment records dated from May 1992 to January 1993, it was noted that the veteran continued to be seen for depression and Prozac was continued. In an outpatient treatment record dated in April 1993, it was noted that the veteran had had a recent drinking episode with bizarre behavior, reported that he spends most of the money he earns at a temporary job on alcohol, and that he plans his drinking episodes weeks in advance. He was again noted as alert and oriented times three, of having relevant and coherent speech, of denying suicidal and homicidal ideation, and of denying hallucinations. The assessment was depression, not otherwise specified, and it was noted that he was to continue taking Prozac. On a VA examination dated in November 1993, a physician noted that the veteran reported periods of depression, spending time around the house, and working in a temporary service. He also reported having a fiance, who has been helpful to him; reported having difficulty sleeping; of having a fair appetite and concentration, and of feeling his life had no direction. Upon examination, he was noted to be alert and cooperative with no bizarre motor movements, pressured speech, loose associations, or flight of ideas. Mood was noted as calm and affect as appropriate. There were no delusions, hallucinations or ideas of reference or suspiciousness. He was oriented times three with good memory, with judgment noted as adequate. Diagnosis was history of depression, not otherwise specified. A gastroenterologist noted that the veteran reported taking no current medications, of drinking three to four beers per weekend, of having an adequate appetite, and no abdominal pain, vomiting, change in bowel habits, dysphagia, etc. Upon examination, he noted that the abdomen was slightly protuberant without enlargement of the spleen/liver, and that there was no stigmata of chronic liver disease. The physician diagnosed history of hepatitis A and B, currently stable, with tests reading positive for Hepatitis C and elevated levels of serum glutamic oxaloacetic transaminase (SGOT) and serum glutamic pyruvic transaminase (SGPT). He recommended the veteran avoid alcohol, and advised follow-up tests and treatment. On a general medical examination, the physician noted that the veteran reported a history of having skin lesions removed from his face, which came on in 1972, after release from service. The physician noted that there were presently no lesions and no discernible, disfiguring scars. The musculo-skeletal system was noted as normal and the pertinent diagnosis was skin lesions, by history, of the face, not found this examination. The Board notes that in Roberts v. Derwinski, 2 Vet.App. 387 (1992), and Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court of Veterans Appeals (hereinafter the Court) set forth a test for pension eligibility and outlined the necessary steps. In pertinent part, each disability must be rated according to the Schedule for Rating Disabilities, found in 38 C.F.R. Part 4 (1994). The ratings should be combined in accordance with 38 C.F.R. § 4.25 (1994). The "average person test" should be applied, and it should be determined whether the veteran has a disability or disabilities which are considered permanent and total or whether a total schedular rating is present. 38 U.S.C.A. § 1502(a)(1) (West 1991); 38 C.F.R. § 4.15 (1994). If the "average person test" is not met, the provisions of 38 C.F.R. § 4.17 (1994) should be applied in order to determine if the veteran is unable to secure and follow substantially gainful employment due to permanent disabilities which meet the percentage requirements set forth in 38 C.F.R. § 4.16 (1994). Finally, an extra-schedular grant of benefits should be considered according to the provisions of 38 C.F.R. § 3.321(b)(2) (1994). The veteran is currently assigned the following evaluations for nonservice-connected conditions: residuals stroke, right radial neuropathy, assigned a 10 percent disability evaluation; hepatitis, 10 percent; depression, 10 percent; and dermatitis of thighs, arms, and shoulders, noncompensable; and skin lesions, noncompensable. The combined rating is 30 percent. The Board must next review the evaluation for each condition to determine whether the currently assigned rating is appropriate. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Right radial neuropathy as residuals of a stroke is rated analogously under hemorrhages of the brain vessels. For such hemorrhages, a 100 percent evaluation is warranted for six months after the hemorrhage; thereafter, residuals are rated at a 10 percent minimum, in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. §§ 4.20, 4.124a, and Part 4, Diagnostic Code 8009 (1994). A 20 per cent rating is assigned for mild, incomplete paralysis of the radial nerve under Diagnostic Code 8514. Upon review of all the evidence, the Board concludes that the veteran's currently assigned 10 percent evaluation properly reflects the degree of disability due to his right radial neuropathy. Although he has been noted in the past, most recently in a 1991 VA examination for compensation and pension, to have some decreased grip strength, on the most recent VA examination dated in November 1993, his musculoskeletal system was noted as normal. He has not alleged recent treatment for his neuropathy. At his personal hearing, he stated that his arm was not as strong as it was prior to his stroke in 1983, but that he has learned to function normally with it. Overall, the evidence supports a finding of a 10 percent disability evaluation, the minimum evaluation after a hemorrhage of a brain vessel. The evidence does not support a finding of greater impairment such as would warrant a higher disability evaluation under any applicable code. In regard to the veteran's hepatitis, if there is demonstrable liver damage with mild gastrointestinal disturbance, a 10 percent evaluation is warranted. Minimal liver damage with associated fatigue, anxiety and gastrointestinal disturbance necessitating dietary restriction or other therapeutic measures warrants a 30 percent evaluation. For hepatitis with moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression, a 60 percent evaluation is warranted. 38 C.F.R. Part 4, Diagnostic Code 7345 (1994). The Board concludes that the veteran's hepatitis residuals are mildly symptomatic and have resulted in only slight impairment. At his hearing in 1991, the veteran reported that his liver problems resulted in itching and an inability to digest spicy foods and alcohol. Laboratory tests conducted during the most recent VA examination revealed some elevated levels of liver enzymes. At that time, the veteran reported no abdominal pain, vomiting, change in bowel habits, dysphagia, etc. There are no treatment records regarding the veteran's liver condition since an outpatient treatment record dated in March 1990, at which time the veteran complained of feeling run down. He has not alleged any more recent treatment. These findings are found to approximate mild symptomatology of hepatitis residuals. Greater symptomatology such as liver damage with associated fatigue, anxiety and gastrointestinal disturbance necessitating dietary restriction or other therapeutic measures, has not been shown. The Board concludes that the currently assigned 10 percent evaluation is proper for his hepatitis residuals and that a higher evaluation is not warranted. In regard to the veteran's depression, mild impairment of social and industrial adaptability warrants a 10 percent disability evaluation. For definite impairment, a 30 percent evaluation is warranted. 38 C.F.R. Part 4, Diagnostic Code 9209 (1994). In a precedent opinion, 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". O.G.C. Prec. 9-93 (Nov. 9 1993). The Board concludes that the veteran's depression currently results in only mild impairment. At his hearing in 1991, the veteran reported that taking Prozac improved his restlessness, anxiety and depression. In an intake summary dated in January 1992, the diagnosis was polysubstance dependence, in remission and depressive disorder, not otherwise specified; his psychosocial stressor was noted as unemployment and was rated as 4, severe; and the GAF Scale score was noted as 60, with the highest in the past year as 55. The GAF score would indicate moderate, but not moderately large symptomatology. Furthermore, more recent medical evidence supports a finding that the veteran's depression more nearly approximates mild symptomatology. On the most recent VA examination, it was noted that he complained of periods when he feels depressed, and reported having sleep difficulties, fair appetite and concentration, and a feeling that his life has no direction. Upon examination, the physician's diagnosis was of a history of depression. These findings are found to approximate mild social and industrial incapacity. Greater symptomatology evidencing definite social and industrial impairment, such as would warrant a higher evaluation, has not been shown. The Board concludes that the currently assigned 10 percent evaluation properly reflects the current extent of his depression. In regard to the veteran's dermatitis of thighs, arms, and shoulders, it is noted that the disorder is rated analogously to eczema. For slight, if any, exfoliation, exudation or itching of a nonexposed surface or small area, a non-compensable evaluation is warranted. For exfoliation, exudation or itching of an exposed surface or extensive area, a 10 percent evaluation is warranted. For exudation or itching constant, extensive lesions, or marked disfigurement, a 30 percent evaluation is warranted. 38 C.F.R. § 4.20, and Part 4, Diagnostic Codes 7806, 7813 (1994). The Board concludes that the veteran's dermatitis is essentially asymptomatic and currently results in only slight, if any, impairment. It is noted that in a VA examination in 1984, the veteran was diagnosed with subsiding dermatitis. At his hearing in 1991, the veteran reported that he has occasional outbursts of skin problems, but that he has learned how to counter them, for example, by using mild soaps. There are no recent treatment records regarding his dermatitis, and the veteran has not alleged any recent treatment. VA examinations dated in December 1991 and November 1993 were negative for findings of outbreaks of dermatitis. The Board concludes that the current noncompensable evaluation for dermatitis is appropriate and that a compensable evaluation is not warranted. In regard to the veteran's reported skin lesions, it is noted that the disorder is also rated analogously to eczema. On his most recent VA examination in 1993, the veteran reported having skin lesions removed from his face on sporadic occasions. The physician noted that there were no lesions on the day of the examination, and that there were no discernible scars. Other than the dermatitis findings discussed above, there are no other reports of skin lesions in treatment records or VA examinations, and the veteran did not mention skin lesions during his personal hearing. It is concluded that the current noncompensable evaluation for skin lesions is appropriate and that a compensable evaluation is not warranted. Now that the Board has reassessed the veteran's nonservice- connected conditions, it is noted that the veteran's combined nonservice-connected disability rating continues to be 30 percent. 38 C.F.R. § 4.25 (1994). The Board must next determine whether the veteran is totally disabled under the "average person" test. 38 U.S.C.A. § 1502 (a)(1) (West 1991). It is noted that the veteran does not have a condition that is considered totally and permanently disabling, such as the permanent loss of a hand, a foot, an eye, etc. 38 C.F.R. § 4.15 (1994). Nor is the veteran rated totally disabled on a schedular basis for any one of his conditions, or for his conditions on a combined basis. Therefore, the veteran is not totally and permanently disabled under the "average person" test. Next, we consider whether the veteran is totally disabled for pension purposes based on unemployability and age. 38 C.F.R. § 4.17 (1994). The veteran does not have only one disability that is rated at least 60 percent disabling. Nor does he have a combined rating of 70 percent with at least one disability being rated at 40 percent or more. Therefore, he does not meet the permanence of the percentage requirements of § 4.16 that would justify a grant of total disability for pension purposes. Nor does the situation warrant a grant of unemployability on an extraschedular basis. 38 C.F.R. §§ 3.321, 4.17. The veteran was born in November 1950, has several years of college education, has experience in several types of employment, including working as a chemical handler, security policeman, mail clerk, a warehouseman, and a fork-lift operator, and has reportedly not worked full time since 1983 or 1986. He has indicated that he has worked in temporary employment since that time. The Board finds that the veteran is not so disabled because of his nonservice-connected conditions that he is unable to secure and follow substantially gainful employment consistent with his age, education and work experience. Medical findings indicate that the symptomatology associated with his right radial neuropathy, hepatitis and depression are mild at most. His dermatitis and skin lesions appear to be currently asymptomatic. Although increased liver enzyme levels may be detected on pre-employment physicals, the veteran does not appear to be precluded from manual or more sedentary labor due to his nonservice-connected disorders. We conclude that his conditions taken together do not preclude the veteran from substantially gainful employment. In considering the veteran's claim, the Board has been mindful of the doctrine of granting the veteran the benefit of any doubt which might exist concerning any matter pertinent to his claim. Regarding the veteran's claim for a nonservice-connected pension, the evidence is not found to be sufficiently in equipoise to raise such a doubt. 38 U.S.C.A. § 5107. ORDER A permanent and total rating for pension purposes is denied. E. W. SEERY 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.