BVA9500876 DOCKET NO. 93-04 081 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a permanent and total disability evaluation for pension purposes. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sheila A. Lawson, Associate Counsel INTRODUCTION The veteran had active service from December 1969 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to non-service connected pension benefits on the grounds that residuals of a right hand blast injury (right hand disability) preclude him from securing substantially 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. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the preponderance of the evidence is against the veteran's claim of entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The veteran was born in March 1951, has a 12th grade education, and occupational experience in carpentry, painting and other types of manual labor; he says he last worked in May 1991. 2. The veteran's only significant disability consists of residuals of a right hand blast injury. 3. The veteran's right hand disability is not productive of total disability and is not sufficient to render the average person unable to secure substantially gainful employment. 4. The veteran's right hand disability does not preclude him from engaging in substantially gainful employment, consistent with his age, education and occupational history. CONCLUSION OF LAW The veteran is not permanently and totally disabled within the meaning of governing law and regulations. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). The record reflects that in June 1991, the veteran injured his right (dominant) hand during a community celebration in Port au Prince, Haiti, when a firecracker he was holding prematurely exploded. This accident resulted in amputation of the distal phalanxes of the right thumb and right index and middle fingers, and deformity of the distal phalanx of the right ring finger. In October 1991, the veteran underwent a VA examination, during which he complained of right hand pain and weakness. He described a loss of full extension for the middle and ring fingers. Physical examination revealed a tender one-inch scar over the palm of the right hand with adherence to underlying structures. The examiner also noted tenderness to palpation of the stump of the right thumb, index and middle fingers and the end of the distal phalanx of the right ring finger. There was weakness of grip, and some numbness to pinprick on the ulnar side of the right index finger. X-ray studies of the veteran's right hand showed moderate deformity of a healing fracture of the 1st finger and 5th metacarpal; partial amputation of the distal phalanx of the 1st, 2nd, and 3rd fingers; and a moderate degree of osteoporosis. Aside from the right hand, all general medical findings were normal. Also of record is a letter, dated in August 1991, from Alan E. Hibberd, M.D., and VA outpatient treatment records dated in January and February 1992. In his letter, Dr. Hibberd described the veteran's injuries and stated that these injuries were in the process of healing. Dr. Hibberd reported that the veteran was participating in physical therapy for motion of his metacarpals and proximal interphalangeal joints, and that he gradually was recovering function. Dr. Hibberd also stated that the fracture of the proximal phalanx of the veteran's thumb was healing, and that while he anticipated progressive restoration of function of the veteran's metacarpals and proximal interphalangeal joints, the veteran would have disabilities related to the losses of his phalanges. The 1992 VA outpatient treatment records reflect the veteran's physical therapy progress, and include an orthopedic clinic report in which the examiner opined that the veteran had achieved full benefit from physical therapy and that he would not benefit appreciably from surgery. The examiner also expressed his opinion that the veteran's ability to use his right hand was quite limited. During a September 1992 hearing, the veteran testified that prior to his injury, he was a carpenter and painter by trade, and that he was trained for occupations involving manual labor. The veteran also stated that he had undergone physical therapy for his hand, but had not investigated the possibility of undergoing vocational rehabilitation. The veteran further testified that he was aware of the difficulties in obtaining employment in light of the economy, and stated that with reference to his situation, the issue was not whether he could obtain some level of employment, but rather whether the salary would be satisfactory. The veteran indicated that he was residing with his sister, and that he had no source of income. A transcript of the hearing is of record. Under the provisions of 38 U.S.C.A. § 1521 (West 1991), pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities that are not the result of willful misconduct. Permanent and total disability will be held to exist when an individual is unemployable as a result of a disability that is reasonably certain to last throughout the remainder of that person's life. Talley v. Derwinski, 2 Vet.App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15 (1993). According to 38 U.S.C.A. § 1502 (West 1991), a finding of permanent and total disability is warranted where a veteran experiences any disability that is sufficient to render it impossible for an average person to follow a substantially gainful occupation. The "average person" standard is outlined in 38 C.F.R. § 3.340(a) and § 4.15. Section 4.15 also provides that a total evaluation is based primarily on the average impairment in earning capacity, and that permanent loss of the use of both hands, or of both feet or of one hand and one foot, or the sight in both eyes is considered permanent and total disability for pension purposes. Further, permanent total disability evaluations for pension purposes will be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary, or familial conditions, as well as for disabilities that require indefinite periods of hospitalization. 38 C.F.R. § 3.342(b) (1993). According to 38 C.F.R. § 4.15, the average impairment in earning capacity provides the basis upon which a total disability evaluation may be granted. The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993), also provide a means for objective determination of total disability. When impairment is commensurate with a 100 percent rating in accordance with schedular criteria, a total rating on a schedular basis is warranted. 38 C.F.R. § 3.340(a)(2). Section 4.17 of Title 38 of the Code of Federal Regulations provides that all veterans who meet the eligibility requirements and who are unable to secure or follow a substantially gainful occupation by reason of disability likely to be permanent shall be rated permanently and totally disabled. Section 4.17 further provides that for pension purposes, the permanence of percentage requirements set forth in 38 C.F.R. § 4.16 (1993) is mandatory. In a December 1991 rating decision, the RO assigned a 40 percent evaluation for the residuals of the veteran's nonservice- connected right hand injury. In the March 1992 decision that forms the basis of this appeal, the RO confirmed and continued the 1991 denial of the veteran's claim. As noted above, entitlement to pension benefits may be objectively determined if the veteran is unemployable as a result of a permanent disability or experiences a disability that would preclude an average person from following a substantially gainful occupation, if it is reasonably certain that such disability is permanent. 38 U.S.C.A. § 1502; 38 C.F.R. § 4.15. The Board also notes that a total evaluation for the veteran's disability is not warranted under the applicable schedular criteria contained in the Rating Schedule. As noted above, the veteran has been assigned a 40 percent disability evaluation; this evaluation is not within the requirements for a total schedular evaluation set forth in 38 C.F.R. § 4.16. While the veteran's right hand disability is permanent in nature, this disability is not representative of total disability in accordance with 38 C.F.R. §§ 4.16 and 4.17. The veteran's 40 percent rating seems proper, as it reflects disability equal to favorable ankylosis of 3 digits of a major hand, including the thumb. See 38 C.F.R. Part 4, Code 5222, as well as note (c) following Code 5151. Upon review of the evidence of record pertaining to the veteran's disability and of Diagnostic Code of the Rating Schedule, the Board concludes that the veteran's right hand disability would not preclude an average person from securing and following substantially gainful employment. Without disputing the extent of the veteran's right hand disability, the Board finds that this disability is not so severely disabling as to render him permanently unemployable. There is no evidence of record that the veteran suffers from any mental deficiency, that he is not ambulatory or that he has any left hand or arm disability. As such, the evidence of record does not support a conclusion that the veteran experiences disability that, although permanent, would render the average person unable to secure substantially gainful employment. 38 U.S.C.A. § 1502(a). Thus, on the basis of the objective, "average person" standard of review, a permanent and total disability evaluation is not warranted. In light of the veteran's disability not meeting the threshold requirements of 38 C.F.R. § 4.17, as applied to pension cases through 38 C.F.R. § 4.16, the Board must determine whether the veteran would be eligible for pension benefits on the basis of subjective criteria, including consideration of his age, education and occupational history, and unusual physical or mental defects. 38 C.F.R. §§ 3.321 and 4.15. In this regard, the Board notes that the veteran was born in 1951, has a high school education, and that his previous occupations primarily have involved manual labor. The Board again points out that during his September 1992 hearing, the veteran testified that he had not made any effort to obtain vocational rehabilitation, and that with respect to his employment, the issue was not his ability to secure such, but rather whether the employment he could secure would provide a satisfactory salary. In light of the veteran's age, education and occupational history, and his September 1992 testimony, the Board is not persuaded that the veteran is permanently and totally disabled, and concludes that his claim for pension benefits must be denied. ORDER Entitlement to a permanent total disability rating for pension purposes is denied. J. J. SCHULE Member, Board of Veterans' Appeals (Continued Next Page) 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.