BVA9505512 DOCKET NO. 93-09 932 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and spouse ATTORNEY FOR THE BOARD Robert E. P. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from November 1961 to December 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision by the Nashville, Tennessee, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a nonservice- connected disability pension. He asserts that his disabilities which include right hip, cervical spine, lumbar spine, right shoulder, right knee, and right hand disorders, and chronic obstructive pulmonary disease, prevent him from engaging in gainful employment. 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 in this matter, and for the following reasons and bases, it is the decision of the Board that a finding of entitlement to a permanent and total disability rating for pension purposes is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran was born in October 1943, completed eight years of school, and obtained a high school graduate equivalency degree. He also received vocational training in the areas of welding, machine shop work, and automobile mechanics. He previously worked as a laborer and subsequently as a schoolbus driver until 1989. The veteran last worked in December 1989. 3. The veteran is status post right total hip replacement which is 30 percent disabling, has arthritis of the cervical spine which is 30 percent disabling, has arthritis of the lumbar spine which is 20 percent disabling, and has chronic obstructive pulmonary disease which is 10 percent disabling. His noncompensable disabilities are arthritis of the hands, arthritis of the right and left great toes, and necrosis of the left hip. The veteran has a combined disability evaluation of 70 percent. 4. The veteran's disabilities preclude him from engaging in substantially gainful employment considering his age, education and employment experience. CONCLUSION OF LAW The veteran is less than 100 percent disabled but he is unemployable by reason of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.17 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been obtained and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The record reflects the veteran was born in October 1943, that he had eight years of schooling, and that he obtained a high school graduate equivalency degree. He also had some vocational training in the fields of automobile mechanics, welding, and machine shop work. The veteran worked as a laborer until August 1981 and he worked as a schoolbus driver from 1983 until December 1989. The veteran has not worked since December 1989. In November 1990 the veteran was treated by Thomas M. Webster, M.D., for aseptic necrosis of the right hip. A total right hip replacement was performed at that time. The veteran received a private physical examination from William J. Gutch, M.D., in September 1991. The veteran complained of pain in the neck, right shoulder and arm, right thumb, right hip and leg, right knee and right ankle. He reported that he had surgery on his right knee for loose bodies in 1983 and had a shaving of the right ankle. The veteran stated that he was unable to do much of anything because of persistent pain. On examination the veteran appeared chronically ill and thin. He moved about quite slowly and walked with a limp. Examination of the neck revealed paracervical spasm with decreased motion. Examination of the veteran's lumbar spine revealed severe limitation of motion. The impression included cervical strain, adhesive capsulitis of the right shoulder, probable degenerative arthritis of the right knee, arthralgia of the right ankle, and postoperative total right hip replacement with persistent hip pain. The veteran received a Department of Veterans Affairs (VA) examination in November 1991. The veteran complained of neck pain, severe back pain, right hip pain, leg pain, knee pain and ankle pain. He also complained of right hand pain and thumb cramps. On examination the veteran was noted to be emphysematous. He became short of breath from walking and from disrobing unaided. X-rays of the veteran's chest revealed pulmonary hyperinflation with mild diffuse pulmonary interstitial fibrosis. Pulmonary function tests were interpreted as showing a very mild obstruction problem. The examining physician noted chronic obstructive lung disease. Examination of the musculoskeletal system revealed what was described as a slow, exquisitely painful gait assisted with metal crutches. The veteran reported that he had broken his left foot the previous Saturday night. The veteran had swelling and discoloration of the left foot in the region of the fourth toe. The veteran was able to disrobe and dress with much pain and difficulty and was able to get on and off the examination table with much pain and difficulty. The veteran had a TENS unit for relief of spinal pain. Examination of the cervical spine revealed 10 degrees of forward flexion, 0 degrees of backward extension, 10 degrees of lateral flexion, and 10 degrees of rotation. Examination of the lumbar spine revealed straight leg elevation to 10 degrees bilaterally. Forward flexion of the lumbar spine was to 10 degrees. Flexion of both hips was to 80 degrees with pain and abduction was to 20 degrees with pain. The veteran had 90 degrees of flexion of both knees with pain and full extension of both knees with pain. Right handgrip and dexterity were reduced. X-rays of the veteran's hands reveal minimal if any degenerative changes. X-rays of the veteran's feet revealed hallux valgus bilaterally, with early degenerative change in the metatarsal articulations of the right great toe and left great toe. X-ray evaluation of the veteran's cervical spine revealed degenerative changes in the cervical region, with narrowing of interspaces from C3 down to C6. X-rays of the veteran's knees were unremarkable. X-rays of the veteran's lumbar spine revealed osteopenia and minimal degenerative changes in the lumbar region. X-ray studies of the right hip showed the metallic components of the right hip prosthesis. They appeared to be intact and in the expected position and alignment. The left hip appeared unremarkable with minimal, if any, degenerative change. The examination diagnoses included status post right total hip replacement, cervical spine strain with associated reduction in right upper extremity handgrip and dexterity, bulging disc at L4-L5 with pain on motion and limitation of motion, status post recent trauma to the left foot, an undiagnosed neuropsychiatric disorder, bilateral knee strain, and bilateral ankle strain. The veteran and his spouse testified at a hearing before the RO in October 1992. The veteran testified that he had no grip strength in his right hand. He reported that his right hand had been operated on five times which included a plastic implant. He stated that his right hand was his major hand. He reported that he used a cane or crutches to ambulate all the time. He stated that he fractured his right hand in February 1984. In October 1992 the veteran submitted copies of private medical records. These records reveal that the veteran underwent surgery of the right hand in February 1984 for reduction and percutaneous pin fixation of a Bennett's fracture of the right hand. These records also reveal that in April 1984 the veteran underwent arthroscopic surgery of the right knee for irrigation of loose bodies and debridement of patella. The postoperative diagnoses included post-traumatic chondromalacia of the right knee. A July 1985 private medical record reveals that the veteran underwent arthroscopy of the right ankle with partial synovectomy. The postoperative diagnosis was post-traumatic synovitis of the right ankle. A November 1985 medical record reveals that the veteran underwent excision of the trapezium of the right hand with silastic replacements. The final diagnosis was basal joint arthrosis of the right thumb. The veteran was examined by Dr. Gutch in December 1992. The veteran complained of neck, back, shoulder, right hip, knee and ankle pain. The veteran reported that he had had the symptoms for a long period of time. The veteran reported severe neck pain for the previous six weeks. Examination of the neck revealed spasm with marked restriction of motion. The veteran claimed decreased sensation of the right hand. Examination of the lower back revealed spasm with tenderness over the lower lumbar area. Flexion was to 45 degrees. Straight leg raising revealed discomfort at 60 degrees on the right. There was also painful right hip motion. Right knee and ankle motion was painful with some restriction of motion. The impressions included degenerative disc disease of the cervical spine with cervical radiculitis, low back pain, and arthralgia of the right knee and ankle. Dr. Gutch injected the veteran's right and left paracervical muscles with Soluspan and Xylocaine. The veteran underwent a physical examination performed by Joe Beals, M.D., in March 1993. On examination the veteran appeared to be in considerable discomfort. His back showed rather marked limitation of motion with pain in every direction of movement. There was muscle spasm and tenderness across his lower back. He had marked tenderness around the right shoulder joint and complained of numbness in the third, fourth, and fifth fingers, of the right hand. The neck showed moderate loss of range of motion with mild tenderness and muscle spasm throughout the cervical area. A myelogram revealed probable degenerative spondylosis with neural foraminal stenosis bilaterally at C5-6. The myelogram revealed no evidence of spinal stenosis or herniated disc of the lumbar spine. CT scan of the cervical spine revealed mild to moderate neural foraminal stenosis bilaterally at C5-6. The Board finds that the veteran's 30 percent rating for status post right total hip replacement is appropriate. 38 C.F.R. § 4.71a, Code 5054. The veteran has a moderate amount of pain and a moderate loss of the range of motion of his right hip. The Board finds that the veteran's cervical spine disorder is 30 percent disabling. 38 C.F.R. § 4.71a, Code 5290 (1993). Examination of the veteran's cervical spine has revealed severe limitation of motion. The Board finds that the veteran's lumbar spine disability is correctly rated as 20 percent disabling. 38 C.F.R. § 4.71a, Code 5292 (1993). The most recent examination of the veteran's lumbar spine revealed a moderate loss of motion. The Board finds that the veteran's 10 percent rating for chronic obstructive pulmonary disease is appropriate. 38 C.F.R. § 4.97, Code 6603 (1993). The veteran had dyspnea on exertion and a very mild obstruction problem. The Board finds that the veteran is correctly rated as noncompensable for arthritis of the hands, as well as right and left great toes and for disability classified as necrosis of the left hip. 38 C.F.R. § 4.71a, Codes 5003, 5252 (1993). X-rays do not show necrosis of the left hip and only show minimal arthritis of the hands and feet. The combined rating for the veteran's disabilities is 70 percent. In this case the veteran does not meet the percentage requirements for disability pension benefits. That is, he does not have one disability ratable at 40 percent or more. 38 C.F.R. §§ 4.16, 4.17 (1993). However, the Board finds that the veteran's right hip, cervical spine, lumbar spine, and pulmonary disabilities prevent him from engaging in work requiring significant physical activity. The Board also finds that the pain associated with his right hip, cervical spine, and lumbar spine disabilities, when considered with the veteran's age, education and work experience, prevent the veteran from engaging in any sedentary occupation. The Board further notes that the veteran has reportedly not worked since December 1989 and has been found to be disabled by the Social Security Administration since May 1990. Under these circumstances, a permanent and total disability rating on an extraschedular basis is found to be warranted. 38 C.F.R. §§ 3.321(b)(2), 4.16, 4.17 (1993). In reaching its decision, the Board has resolved all doubt in favor of the veteran. 38 U.S.C.A. § 5107. ORDER Entitlement to a permanent and total disability rating for pension purposes is granted. JAMES R. ANTHONY 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.