BVA9500883 DOCKET NO. 91-44 367 ) 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 rating for pension purposes. REPRESENTATION Appellant represented by: Division of Veterans Affairs, North Carolina ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The veteran had active service from January 1975 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 1992 the case was remanded by the Board for further development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is unable to pursue a substantially gainful occupation because he is permanently and totally disabled due to the combined effects of several disabilities. 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 the preponderance of the evidence is against granting a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran is 40 years old as he was born in September 1954. He completed high school, and he last worked as a laborer for a moving and storage business. 3. The veteran's disabilities include degenerative joint disease of the lumbosacral spine, seizures secondary to alcohol abuse, and a healed, post-operative right shoulder subluxation. He is also an alcohol and substance abuser, but such disabilities are the productive of his own willful misconduct. 4. The degenerative joint disease of the lumbosacral spine warrants a 10 percent rating, the seizures warrant a 20 percent rating, and the post-operative right shoulder subluxation warrants a 10 percent rating. The combined rating is 40 percent. 5. The veteran's disabilities, in light of his age, education, and occupational background, do not preclude him from pursuing a substantially gainful occupation. CONCLUSION OF LAW The criteria for a permanent and total disability rating for pension purposes have not been met. 38 U.S.C.A. §§ 1502(a), 1521(a), 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17, 4.40 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking a permanent and total disability rating for pension purposes. He has presented a well-grounded claim, which is a claim that is plausible, as required by 38 U.S.C.A. § 5107(a) (West 1991). The VA, in turn, has assisted the veteran in fully developing the facts relevant to his claim as required by 38 U.S.C.A. § 5107(a). Following his separation from service, the veteran received periodic VA outpatient treatment for alcoholism. In February and March 1984, he was hospitalized at a VA medical facility for treatment of upper gastrointestinal bleeding. The diagnoses, at the time of his discharge, were upper gastrointestinal bleeding probably secondary to esophageal varices, and chronic alcoholism. In April 1984, he was hospitalized at a VA medical facility for an esopha-gastro-duodenoscopy, which was normal. In July 1984, he received VA outpatient treatment after complaining of a painful right shoulder. X-rays revealed a right acromioclavicular subluxation, but no evidence of a separation or fracture. Thereafter, he received intermittent VA and private medical treatment for a painful right shoulder. In April 1985, he was hospitalized at a private medical facility for right shoulder surgery to correct the acromioclavicular subluxation. In May 1985, a private physician reported that the veteran's shoulder was healing well, that he had a good range of motion, that he had minimal pain, and that he would likely be able to return to light work in 2 to 3 months. In July 1985, the veteran was hospitalized at a VA medical facility after complaining of nervousness following the consumption of several intoxicating beverages. Clinical findings were normal, and his hospital course was unremarkable. In December 1985, he was hospitalized at a VA medical facility for treatment of a stab wound to the abdomen and anemia secondary to blood loss. An exploratory celiotomy was performed, the wound was sutured, and he received a transfusion. His hospital course was unremarkable except for a bacterial infection secondary to a contaminated knife blade. In October 1988, a general VA medical examination was conducted. The veteran complained of problems with his back, stomach, shoulder, head, and leg. The findings were unremarkable. X-rays revealed mild cardiomegaly and a surgical screw in the right clavicle and scapula region. The diagnoses were history of internal bleeding in 1983 apparently secondary to esophageal varices, status post stab wound to the abdomen without residuals, and status post shoulder dislocation. In January 1990, a private psychological evaluation was conducted, and the test results indicated that the veteran was functioning within the moderate mental retardation range of intelligence. In February 1990, a private medical examination was conducted. The findings were unremarkable except for blood pressure readings of 156/106 and 160/110. X-rays revealed degenerative joint disease at L2-3. The diagnosis were uncontrolled hypertension, history of a right acromioclavicular separation, history of alcohol abuse and withdrawal, history of a stabbing injury, and history of hematemesis probably secondary to alcohol use. In April 1990, he received VA outpatient treatment for hematuria. In December 1990 and January 1991, the veteran was hospitalized at a VA medical facility for drug and alcohol rehabilitation. His rehabilitation was unremarkable as were his physical examination findings. The diagnosis was drug and alcohol dependence. In late January 1991, he received VA outpatient treatment for nervousness secondary to his alcohol rehabilitation, and in June 1992, he received VA outpatient treatment after complaining of blood in his urine. In August and September 1992, the veteran was hospitalized at a VA medical facility after applying for admission to the rehabilitative unit. Initially, he was treated for detoxification because post-admission laboratory testing was positive for both alcohol and illicit drugs. After detoxification, he was treated in the rehabilitation unit, and was discharged without medication and in a stable condition. In February 1993, a special VA neuropsychiatric examination was conducted. During the examination, the veteran reported that he began having seizures in 1991, and that his last seizure was in December. He added that he was an alcoholic and had been "detox'd" 7 times. The clinical findings were unremarkable. The diagnosis was alcohol dependence with a secondary seizure disorder. A general VA medical examination was also conducted in February 1993. During the examination, the veteran reported that he had exploratory surgery following a stab wound to his abdomen in 1985, and that he had surgery to repair a dislocated right shoulder in 1985. He complained of difficulty eating large meals secondary to the stab wound, a painful right shoulder, although no further dislocations, low back pain, right ankle pain, and bilateral knee pain. The examiner found that the veteran was well-developed and well-nourished. He was left-handed by statement. He had a 7 1/2 inch surgical scar which curved to the left of the umbilicus. There was full range of motion of the right shoulder and thoracic-lumbar spine with pain at the extremes of motion. The cardiovascular system was normal. Additional findings were unremarkable. Blood pressure was 120/90. X-rays of the knees and ankles were unremarkable. X-rays of the right shoulder revealed a bone screw with fixation of the distal end of the amputated clavicle to the acromion process of the scapula. The diagnoses were status post exploratory laparotomy following knife wound to abdomen, status post operative right shoulder dislocation, right ankle pain by history, bilateral knee pain by history, and back pain by history. The veteran contends that he is unable to work due to the combined effects of several disabilities, including blood in his urine, alcoholism, right shoulder arthritis, right ankle arthritis, a bilateral knee disability, a back disability, and seizures, which have grown progressively worse. He avers that he last worked in March 1988 as a laborer for a moving and storage facility, and that he has a high school education. He asserts that he is receiving Social Security disability benefits. With respect to the veteran's reported bilateral knee disability, right ankle arthritis, blood in the urine, and stab wound residuals, there is no medical evidence of an underlying disability. They cannot, therefore, be rated for pension purposes. With respect to the veteran's alcohol and substance abuse, he has not shown that such were the product of anything but usage for enjoyment. His alcohol and substance abuse are, therefore, they the productive of his own willful misconduct. 38 C.F.R. § 3.301(c)(2)-(3) (1993). With respect to current disabilities, the medical evidence indicates that the veteran has degenerative joint disease of the lumbosacral spine, seizures secondary to alcohol abuse, and a healed, post-operative right shoulder subluxation. As to his degenerative joint disease of the lumbosacral spine, a 10 percent rating is assigned under the Schedule for Rating disabilities (Schedule) when such disability causes slight limitation of motion of the lumbosacral spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1993). During his most recent examination, no functional limitation, including limitation of motion, was shown. A noncompensable rating is, therefore, warranted. A 10 percent rating may also be assigned under the Schedule when there is x- ray evidence of arthritis of two or more major or minor joints. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1993). Although there is x-ray evidence of arthritis of the veteran's lumbosacral spine, there is no x-ray evidence of arthritis of any other joint. A rating for arthritis cannot, therefore, be assigned. At the time of the February 1993 VA examination, however, the veteran reportedly had pain with range of motion of the thoracic- lumbar spine. A 10 percent evaluation under the provisions of 38 C.F.R. § 4.40 is in order. As to the veteran's post-operative right shoulder subluxation, a rating is assigned under the Schedule for Rating disabilities (Schedule) when such disability causes limitation of motion of the arm, malunion, nonunion, or recurrent dislocation of the clavicle, scapula, or humerus. 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5203 (1993). The veteran reported that he had no further dislocations following his surgery, and the medical evidence reveals no functional limitations due to limitation of motion, malunion, nonunion, or arthritis. In February 1993 pain at the extremes of motion of the right shoulder was noted; thus, a 10 percent evaluation may be assigned on this basis. 38 C.F.R. § 4.40. The evidence further indicates that the veteran has a history of hypertension. On VA examination in February 1993, his blood pressure was 120/90 and it was not reported that he was taking anti-hypertensive medication. Given these findings, a compensable rating for hypertension is not warranted. 38 C.F.R. § 4.104, Code 7101. With respect to the veteran's seizure disorder, the medical evidence indicates that it is secondary to his alcoholism. As a secondary condition, it may be rated under the Schedule as it is not considered a result of the veteran's willful misconduct. 38 C.F.R. § 3.301(c)(2). Seizures are rated under the Schedule according to type and frequency. The veteran reported that he began having seizures in 1991, and that have grown progressively worse. The medical treatment records reflect that he reported having had one seizure in December 1992. A 20 percent rating is assigned under the Schedule when there have been at least one major seizure in the past two years, or at least two minor seizures in the past six months. 38 C.F.R. § 4.124a, Diagnostic Code 8910-11 (1993). Accordingly, a 20 percent rating is warranted. In light of the above ratings, the veteran has a combined rating of 40 percent. A permanent and total disability rating for pension purposes will be granted if a disability rating is productive of a total schedular rating under the "average person" standard of pension eligibility, or the disability rating meets the schedular requirements for the assignment of a total disability rating under the "unemployability" standard of pension eligibility. The veteran's disability rating does not produce a total schedular rating under the "average person" standard of pension eligibility. 38 U.S.C.A. §§ 1502(a)(1), 1521(a); 38 C.F.R. § 4.15. His disability rating also does not meet the schedular requirements for the assignment of a total disability rating under the "unemployability" standard of pension eligibility as he does not have a combined rating of, at least, 70 percent. 38 U.S.C.A. §§ 1502(a), 1521(a); 38 C.F.R. §§ 4.16, 4.17. A permanent and total disability rating for pension purposes may be granted on an extraschedular basis if the disability requirements based on the percentage standards of the rating schedule are not met, but the veteran is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors. 38 C.F.R. § 3.321(b)(2). The veteran is 40 years old with a high school education and an occupation background in manual labor. He contends that a pension should be granted on an extra-schedular basis, but the evidence does not reveal and he has not offered any basis for such a grant, which is not supported by the foregoing factors. The evidence shows that his hospitalizations in recent years have been necessitated in large part by substance abuse and his lack of gainful employment likewise has been due to this problem. His alcoholism and drug abuse may be an impediment to securing and maintaining employment, but such conditions may not be taken into account because it is a product of his own willful misconduct. He contends that he is receiving Social Security disability benefits, but according to the latest Social Security decision, dated in April 1990, submitted by the Social Security Administration, he was denied disability benefits. His disabilities, in light of his age, education, and occupational background, do not, therefore, preclude him from pursuing a substantially gainful occupation. 38 C.F.R. § 3.321(b)(2). Accordingly, the Board finds that the preponderance of the evidence is against granting a permanent and total disability rating for pension purposes. 38 U.S.C.A. §§ 1502(a), 1521(a); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17. The evidence is not so evenly balanced as to raise doubt with respect to any material issue. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to a permanent and total disability rating for pension purposes is denied. WAYNE M. BRAEUER 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.