BVA9500493 DOCKET NO. 93-10 799 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1992 rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that no one will hire him because of his age. In a brief on appeal received in October 1993 the representative contends that the veteran is excluded from employment because of his physical disabilities manifested by an "inability to sit, stand or walk for an extended period." 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 the claim for a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The claims file contains all the evidence necessary for a proper disposition of the veteran's appeal. 2. The veteran now says he was born in December 1917, has a high school education, and has occupational experience as a security guard and a waiter. 3. The veteran's principle disabilities are a history of anxiety, external hemorrhoids and benign prostatic hypertrophy. 4. An April 1992 examination report discloses that the veteran did not have any complaints of fatigue, chest pain or shortness of breath; the veteran had a blood pressure of 130/70; and the diagnoses were benign prostate hypertrophy and arteriosclerotic heart disease. 5. A June 1992 VA examination report discloses that the veteran was an "[a]lert, cooperative, [and] oriented...individual, who is able and capable of managing his funds"; the veteran's cardiovascular examination was "[e]ssentially negative"; and the diagnoses were status/post left inguinal indirect hernia repair 1981, benign prostate hypertrophy and chronic smoker. 6. The veteran's disabilities, which have a combined noncompensable disability rating, are clearly not productive of total disability. 7. The veteran's disabilities are not shown to permanently 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. §§ 1155, 1502, 1521, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 4.15, 4.16, 4.17, 4.25, 4.31, 4.71, 4.104, 4.114, 4.115, 4.132, Codes 5260, 5261, 7005, 7336, 7527, 7800, 7803, 7804, 7805, 9400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107, and that sufficient evidence is present for an equitable adjudication of this appeal. 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 disabilities not the result of his own willful misconduct. 38 U.S.C.A. § 1521. Disability evaluations are determined by the application of a VA schedule for rating disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The veteran's claims file contains two recent medical documents. A report of an April 1992 examination by a private physician shows that the veteran "came for [a] check-up." It was specifically noted that the veteran did not have any complaints of fatigue, chest pain or shortness of breath. His blood pressure was 130/70. The examiner ordered an electrocardiogram because of the veteran's "slow" heart rhythm of 62 beats/minute. The examiner also ordered a chest X-ray. These tests were reported as "pending" at the time the examiner completed and signed the examination report. The diagnoses were benign prostate hypertrophy and arteriosclerotic heart disease. A report of a June 1992 VA examination, conducted in response to the claim for pension benefits, notes that the veteran was a 74- year-old who had retired in December 1991 as a security guard for a private company after 10 years of service. A review of his medical history disclosed that he had smoked approximately two packs of cigarettes daily for about twenty years, and that he had undergone a left, indirect, inguinal hernia repair in 1981 "with no sequelae up to the present time." A cardiovascular examination was "[e]ssentially negative," with a blood pressure of 140/90, a respiration of 20, and a "regular" pulse of 72. The examiner described the veteran as an "[a]lert, cooperative, [and] oriented...individual, who is able and capable of managing his funds." The diagnoses were status/post left inguinal, indirect hernia repair 1981, benign prostate hypertrophy and chronic smoker. An October 1992 rating decision disclosed that the RO had continued the assignment of noncompensable disability ratings for the veteran's service-connected history of anxiety and external hemorrhoids. The RO also assigned noncompensable disability ratings for right leg pain, a residual scar of a left inguinal hernia, a residual scar of a right inguinal hernia, benign prostate hypertrophy, and arteriosclerotic heart disease. Service connection and a noncompensable disability rating for external hemorrhoids has been in effect since April 8, 1945, the day following the veteran's separation from service. Under the VA rating schedule, a noncompensable disability rating is assigned for mild or moderate hemorrhoids. Large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences warrant a 10 percent evaluation. 38 C.F.R. § 4.114, Code 7336. The most recent medical evidence of record, the reports of the April and June 1992 examinations, disclose no findings of hemorrhoids. It is also noted that the reports are negative for complaints related to hemorrhoids. In the absence of any evidence to the contrary, the Board finds that the veteran does not have any industrial impairment due to hemorrhoids. Service connection for psychoneurosis has been in effect since April 8, 1945, the day following the veteran's separation from service, and a noncompensable disability rating has been in effect since February 1947. Under the VA rating schedule, a noncompensable disability rating is assigned for a generalized anxiety disorder with neurotic symptoms which may somewhat adversely affect relationships with others but which do not cause impairment of working ability. A 10 percent rating is warranted for a generalized anxiety disorder with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. 38 C.F.R. § 4.132, Code 9400. The most recent medical evidence of record, the reports of the April and June 1992 examinations, disclose no complaints or symptoms of an anxiety disorder. In fact, the report of the veteran's most recent psychiatric examination, conducted by VA in September 1981, noted that he was "rather surprised [by] the referral to the psychiatrist, admitting no previous psychiatric intervention." At any rate, in the absence of any recent evidence to the contrary, the Board finds that the veteran does not have any social or industrial impairment due to an anxiety disorder. While the rating schedule provides disability ratings for limitation of leg function due to pain, including limitation of flexion and limitation of extension, (See 38 § 4.71a, Codes 5260 and 5261, respectively.), the medical records reveal that the veteran has not complained of right leg pain since his separation from service. Furthermore, there is no medical finding of right leg impairment. In the absence of evidence of a current disability, the Board finds that a compensable disability rating for right leg pain is not warranted. The rating schedule also provides that hypertrophy of the prostate gland is rated as a voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115, Code 7527. In this regard, a voiding dysfunction warrants a minimum rating of 20 percent if it requires the wearing of absorbent materials which must be changed less than twice a day. A urinary tract infection warrants a minimum rating of 10 percent if it requires long-term drug therapy, one or two hospitalizations per year and/or intermittent intensive management. 38 C.F.R. § 4.115a. While the veteran's benign prostate hypertrophy is apparent on physical examination it does not, fortunately, produce symptomatology which even begins to approach the criteria required for the minimum compensable ratings as a voiding dysfunction or urinary tract infection. In such a situation, where the rating schedule does not provide for a zero percent evaluation, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The rating schedule provides a compensable evaluation for scars (other than burn scars or disfiguring scars of the head, face or neck) which are moderately disfiguring; poorly nourished, with repeated ulceration; tender and painful on objective demonstration; or which produce limitation of function of the body part which they affect. 38 C.F.R. Part 4, Codes 7800, 7803, 7804, and 7805. However, the medical evidence concerning the inguinal hernia scars, the only residuals attributed to the veteran's hernia repairs, are negative for findings which approximate the above criteria or otherwise produce any industrial impairment. Arteriosclerotic heart disease is evaluated under Diagnostic Code 7005, which provides a minimum rating of 30 percent following acute illness from coronary occlusion or thrombosis, or with a history of substantiated angina attacks, when ordinary manual labor is feasible. 38 C.F.R. § 4.104, Code 7005. The only evidence of record indicative of such disability is in the report of the April 1992 examination by the private physician, which also noted that results of related tests, an electrocardiogram and a chest X-ray, remained "pending." In addition to the lack of clinical evidence to substantiate such a diagnosis, an examination by VA approximately two months later was negative for a finding of arteriosclerotic heart disease. In fact, as stated above, a June 1992 cardiovascular examination was reported as "[e]ssentially negative." At any rate, it is quite obvious that the clinical findings alone do not equate with a level of incapacity which would permit the assignment of a compensable rating under the provisions of the rating schedule. As before, where the rating schedule does not provide for a zero percent evaluation, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Upon review, the Board finds that the veteran's history of anxiety, external hemorrhoids, right leg pain, residual scars of inguinal hernias, benign prostate hypertrophy, and alleged arteriosclerotic heart disease were properly considered and rated by the RO in evaluation of his claim for pension benefits. Those ratings result in a combined noncompensable disability rating pursuant to the provisions of 38 C.F.R. § 4.25. This combined rating represents the average wage-earning impairment caused by his disabilities. Entitlement to pension benefits may be determined under an "average person" standard, when the veteran is unemployable as a result of permanent disability or experiences disability which 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(a); 38 C.F.R. § 4.15. In this case, the "average person" standard is not met because the veteran does not have disabilities which warrant a total schedular rating (singularly or combined) under the VA rating schedule or which are listed as permanent and totally disabling under 38 C.F.R. § 4.15. Entitlement to pension benefits may also be assigned if it is shown that the veteran is "unemployable as a result of a lifetime disability." Brown v. Derwinski, 2 Vet.App. 444, 446 (1992). However, the veteran's disabilities do not meet the percentage requirements set forth under 38 C.F.R. § 4.16(a), which are a prerequisite of this standard. 38 C.F.R. § 4.17(a). In addition, 38 C.F.R. § 4.17(b) states that where the veteran fails to meet the percentage requirements, but meets basic eligibility criteria and is unemployable, consideration of 38 C.F.R. § 3.321(b)(2) is appropriate. Section 3.321(b)(2) provides that where the veteran does not meet the percentage requirements of the rating schedule, but is unemployable by reason of his age, education and occupational history, and unusual physical or mental effects, a permanent and total disability rating on an extra-schedular basis is warranted. In this regard, the Board notes that the veteran's service records show that he was born in December 1918 and had a tenth grade education. He now claims to have been born in 1917, to have completed high school, and to have occupational experience as a security guard and a waiter. He retired from employment as a security guard in January 1992. Thus, the record reflects that the veteran's occupations have primarily involved relatively unskilled employment. However, the clinical data of record do not suggest that he is so disabled as to render him completely unable to follow substantially gainful employment consistent with his occupational history. The veteran does not assert any specific physical restrictions and there is no medical evidence which indicates that employment as a security guard or waiter would be precluded. In other words, the combined effect of all of his disabilities is not shown to be such that he is rendered unemployable given his age, education and occupational background. Consequently, the Board finds that the veteran is not permanently and totally disabled based upon the applicable subjective criteria. 38 C.F.R. § 3.321(b)(2). Accordingly, the Board finds that the preponderance of the evidence is against the claim of a permanent and total disability evaluation for pension purposes. Finally, since the negative evidence outweighs that which is positive on the merits of the issue, the veteran cannot be given the benefit of the doubt since no such doubt arises. ORDER A permanent and total disability rating for pension purpose is denied. J. J. SCHULE 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.