BVA9503056 DOCKET NO. 93-07 978 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Auer, Counsel INTRODUCTION The veteran served on active duty from August 1962 to October 1966. This appeal arises from an October 1990 rating decision of the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO). In that decision, entitlement to a permanent and total disability rating for pension purposes was denied. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefit sought on appeal. He maintains that he is totally disabled and is unable to obtain or follow any gainful employment. DECISION OF THE BOARD The Board of Veterans' Appeals (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 the evidence supports a permanent and total disability rating for pension purposes. 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 April 1944, has completed 12 years of high school education without obtaining his diploma, and has occupational experience as a heavy equipment operator and farm hand. He reported that he last worked in the mid-1970's performing construction work. 3. The veteran's disabilities for pension purposes are gouty arthritis, rated as 10 percent disabling; flat feet, rated as l0 percent disabling; post-traumatic stress disorder, rated as 10 percent disabling; morbid obesity, rated as noncompensable, and hypertension, rated as noncompensable. Chronic ethanol abuse and depression have also been diagnosed. 4. The veteran's disabilities are shown to be of such severity as to permanently preclude the performance of all types of substantially gainful employment in keeping with his age, education, and occupational experience. CONCLUSION OF LAW The extra-schedular requirements for a permanent and total disability rating for pension purposes have been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.342, 4.16, 4.17 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds the veteran has presented a claim that is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. I. The basic statutory and regulatory law pertaining to nonservice- connected disability pension benefits authorizes the payment of pension to a financially qualified veteran of a war who has had the requisite service and who is permanently and totally disabled. See 38 U.S.C.A. §§ 1502, 1521 (West 1991). Also, if the veteran's disabilities are less than 100 percent disabling, he must be unemployable by reason of his disabilities. See 38 C.F.R. §§ 3.321, 3.340, 3.342 (1994). Under these laws and regulations, a veteran may be found to be permanently and totally disabled for pension purposes by establishing, using the appropriate diagnostic codes for each disability under the VA's Schedule for Rating Disabilities, that a veteran has lifetime impairment that is sufficient to render it impossible for him to follow substantially gainful employment. That is, each disability is rated under the appropriate diagnostic code and then combined to determine if the veteran has a 100 percent schedular evaluation for pension purposes. Entitlement to a permanent and total disability rating can also be established for pension purposes even if the veteran does not have a combined 100 percent schedular evaluation, providing he has lifetime impairment which precludes him from securing and following substantially gainful employment. However, if there is only one disability, it must be evaluated as 60 percent disabling, and if there are two or more disabilities, there must be at least one disability evaluated as 40 percent disabling or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 4.16(a), 4.17 (1994). Additionally, even if the evaluations for the veteran's disabilities fail to meet the prescribed percentage standards, but the veteran is unemployable by reason of his disabilities, age, occupational background, and other related factors, a permanent and total disability rating for pension purposes may be granted on an extra-schedular basis. 38 C.F.R. § 3.321(b)(2) (1994). II. It is apparent from the June 1992 rating decision that the veteran does not meet the percentage requirements for an award of nonservice-connected disability pension benefits. His combined evaluation is not 100 percent, and he does not have one disability evaluated at 60 percent disabling or two or more disabilities with one disability evaluated as 40 percent disabling and sufficient disability to bring the combined evaluation to 70 percent or more. The Board does find, however, that the veteran is unemployable by reason of his disabilities when those disabilities are viewed in connection with his age, occupational experience and other related factors. As such, the veteran is entitled to pension benefits, and given this conclusion, the Board will not analyze the evaluations assigned by the RO for each disability. III. With respect to other specific evidence that leads the Board to the conclusion that the veteran is unemployable, the claims file contains a January 1992 letter from L. D. Cantey, M.D., who related that the veteran was not capable of full-time employment. The veteran's medical problems, including obesity and post- traumatic stress disorder as well as a history of alcoholism, were reported and Dr. Cantey stated that he felt that the veteran's post-traumatic stress disorder and obesity were his disabling factors. The veteran testified before a hearing officer at the RO in October 1991. He claimed that he had been treated for arthritis in the feet and ankles and that it affected him because he could not get around well. He claimed to experience pain when walking and frequent swelling of both ankles (Tr at 2). The veteran also reported that he was 5 feet 9 inches tall and weighed over 375 pounds (Tr at 4). The veteran testified that he lived on his brother's farm and was unable to perform any farm duties (Tr at 6). He claimed that he held a construction-type job until the mid-1970's when he stopped working because he was unable to concentrate (Tr at 7). The veteran reported that he did not graduate from high school; however, he did complete 12 years of schooling (Tr at 14). Additionally, the veteran was examined by the VA in February 1992. On joint examination, it was noted the veteran was a rather obese person who walked with a slight waddling gait. There was minimum swelling noted of the right ankle and swelling on the left. The diagnosis was gouty arthritis of the first metatarsophalangeal joint on the right and left with the right being greater than the left and gouty arthritis of both ankles, with the right being greater than the left. On psychiatric examination, it was noted that the veteran lived alone on a farm in one of his brother's houses. He complained of dysphoria and difficulty with memory and concentration. Objective findings revealed that the veteran was morbidly obese, appeared dysphoric and somewhat withdrawn. The examiner concluded that the veteran had ongoing symptoms of post-traumatic stress disorder including intrusive recollections of events in Vietnam, current dreams, avoidance of thoughts, anhedonia, estrangement from others, a foreshortened future, and symptoms of increased arousal. A very significant history of chronic alcohol abuse which was described as ongoing was noted and it appeared that the veteran was severely occupationally and socially incapacitated by his co- existing post-traumatic stress disorder and chronic ethanol abuse. Other treatment notes contained in the claims file, dated in 1990, show that the veteran was treated on a fairly regular basis for swelling of the right foot, alternately described as due to arthritis or due to gout. It was noted he was hypertensive. On VA examination in June 1990, the veteran's weight was recorded as approximately 370 pounds and that his height was 5 feet 9 inches. Outpatient treatment notes, dated in January 1990 and January 1991 show his recorded weight as 350 pounds. The Board acknowledges that the veteran is relatively young and that he has completed 12 years of high school. However, it also appears that the veteran's occupational experience has been solely physical or in manual types of labor. It is reasonable to conclude that his physical and mental disabilities prevent him from engaging in these or similar occupations. Based on the record, it is the opinion of the Board that there is an approximate balance of positive and negative evidence concerning the veteran's employability. Resolving all doubt as to that question in the veteran's favor, the Board concludes that entitlement to a permanent and total disability rating for pension purposes is warranted. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102, 3.321(b)(2) (1994). ORDER A permanent and total disability rating for pension purposes is granted, subject to the law and regulations applicable to the payment of monetary benefits. WARREN W. RICE, JR. 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.