BVA9501995 DOCKET NO. 93-04 832 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lori R. Bucci, Associate Counsel INTRODUCTION The veteran served on active duty from September 1970 and April 1972. He was born in November 1950. This appeal arises from a rating decision in August 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. On appeal the veteran appears to be attempting to reopen his claim of entitlement to service connection for rheumatic heart disease, including residuals therefrom. This claim is not inextricably intertwined with the current appeal, and it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that due to rheumatoid arthritis, rheumatic fever, rheumatic heart disease, tonsillitis, chronic obstructive pulmonary disease, and multiple arthralgias, he is unable to perform his former occupation as a welder or any other type of employment. Thus, he asserts that he should be awarded non- service connected pension benefits. 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 veteran's claim for entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The veteran was born in November 1950. He has an eighth grade education, and work experience as a welder and a truck driver. He last reports working in approximately 1982. 2. The veteran's primary permanent disabilities are rheumatic heart disease, chronic obstructive pulmonary disease, and multiple arthralgias. 3. The veteran's disabilities do not render him totally and permanently unable to perform any form of substantially gainful employment consistent with his age, education, and occupational experience. CONCLUSION OF LAW The veteran is not totally and permanently unemployable because of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(2), 3.340, 4.15, 4.16, 4.17 (1994). 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(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual Background Outpatient treatment records of C. Wong, M.D., a private physician, between October 1984 and September 1991, reflect treatment for acute viral disorders, asthmatic bronchitis, fibromyalgia, somatic dysfunction, a tick bite, and rheumatic heart disease. The pertinent diagnostic assessment in June 1991, was that the veteran had very mild, class I, rheumatic heart disease. In a November 1991 statement, R.T. Johnson, M.D., a private physician, confirmed that he diagnosed the veteran in November 1972 with rheumatic heart disease, characterized by a grade I systolic murmur. VA outpatient treatment records between April 1990 to September 1991 show treatment for complaints of persistent joint pain including the knees, elbows, and right shoulder. In April 1990, the veteran presented a history of having had rheumatic fever and a heart murmur, and complained of increasing joint pain, stiffness, shortness of breath, and chest pain. The clinical assessment was that the veteran had a possible organic murmur due to rheumatic heart disease. In September 1991, the veteran again stated that he had had rheumatic fever and that his knees and elbows were constantly painful. Physical examination findings pertaining to this session are illegible. At an April 1992 VA pension examination, the veteran stated that he had last worked approximately ten years previously as a welder, and that he was unable to do any type of regular employment since that time due to his medical conditions, shortness of breath, and painful joints. He further stated that he had been diagnosed in 1972 with rheumatic fever and a heart murmur. Since 1972, his elbows, knees and hips had become gradually sore. He complained that he was unable to walk more one hundred yards without becoming short of breath, or having lower back, knee, and leg pain. After exertion, he reported having a dry unproductive cough. The veteran stated that he smoked a half a pack of cigarettes every day. On physical examination, the heart rate and rhythm was normal. There was a very minimal first degree systolic murmur at the aortic area which was not transmitted. The carotid and femoral pulses were normal bilaterally with no bruits. Popliteal and dorsalis pedis vessels were normal bilaterally with normal skin color. Sitting pulse was 76; blood pressure was 144/80; and respiration was 20. No varicosities were noted. Examination of the lungs revealed normal bilateral sounds and expansion. The lungs were clear. The veteran was able to walk around the examination room and the hall, but he appeared to become dyspneic, and even appeared to become somewhat dyspneic after talking for a while. On examination of the musculoskeletal system, lumbar flexion was to 70 degrees and painful, lumbar extension was to 30 degrees and painful, and there was some local tenderness in the lower lumbar area. No muscle spasm was noted. The veteran could squat to a full position by steadying himself on the table. Hips were flexed to 120 degrees bilaterally, and the knees flexed 110 degrees bilaterally and showed no swelling or tenderness. Examination of the wrists revealed no swelling, stiffness or limitation of motion. The veteran could touch the palmar crease with each hand, as well as touch the thumb to all fingers. Hand grip strength was 3/5 on the right, and 5/5 on the left. The feet had no pes planus or cavus. Circulation was adequate and pulses were present. Cranial nerves were intact and the Romberg test was negative. All deep tendon reflexes were normal bilaterally. The veteran was alert, oriented and cooperative. Laboratory studies were essentially normal with the exception of glucose reading of 113 mg/dl. Testing for rheumatoid factor was negative. X-rays of the pelvis, knees, hands, and lumbar spine were reported to be normal. The examination report did not contain any diagnoses. At a July 1992 VA pension examination the veteran stated that he had been taking medication for arthralgias. He reported that he had suffered for a number of years from generalized aches and joint pain that had been associated with a chronic weakness. He mentioned that his joint pain and breathing problems had increased in severity over the prior three or four years. He complained of a cough with some expectoration and chest pain. On physical examination the heart sounds were quite normal. On auscultation there were no murmurs heard and no evidence of cardiomegaly. Blood pressure was normal, the veteran’s pulse was regular, and peripheral pulses were intact to the pedal area. Examination of the respiratory system revealed that the lungs were clear and the mobility of the chest was normal. Palpation, percussion and auscultation showed no abnormality except for a few scattered rhonchi. The veteran stated that he had been a "two fisted" smoker for a number of years. Study of the nose and throat disclosed unremarkable findings. The motion of all joints was completely normal. There was perhaps mild discomfort upon extreme elevation of the shoulder joint and there was mild crepitus on extreme flexion of the knee joint. Full motion was noted at the hands, wrists, elbows, shoulders, knees, hips, and ankles. There was no evidence of any swelling, redness, or deformity of the joints. The feet were unremarkable. X-rays of the elbows disclosed normal findings. Examination of the neurological system showed the cranial nerves to be grossly intact, and deep tendon reflexes were equal and active bilaterally. No psychiatric or personality problem was assessed. Rheumatoid factor testing was negative. Office spirometric testing disclosed abnormal findings. The examiner recommended that pulmonary function testing be conducted. A review of the file does not disclose a copy of the pulmonary function test results. The examiner’s report concluded, however, that the laboratory data was essentially unremarkable. The final diagnoses were arthralgias of unknown etiology, weakness of unknown etiology. and mild early COPD. Analysis The United States Court of Veterans Appeals has held that VA adjudicators, when considering a claim for entitlement to non service connected pension benefits, must consider whether the veteran is unemployable as a result of a lifetime disability, i.e., an "objective" standard, or if the veteran is not unemployable, whether there exists a lifetime disability which would render it impossible for an average person to follow a substantially gainful occupation, i.e., a "subjective" standard. 38 U.S.C.A. §§ 1502(a)(1), 1521(a); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, and 4.17. See also Talley v. Derwinski, 2 Vet.App. 282 (1992); Roberts v. Derwinski, 2 Vet.App. 387 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992). The clinical evidence discussed above has led the RO to find that the veteran is not permanently and totally disabled for pension purposes as the result of rheumatoid arthritis, rheumatic fever, rheumatic heart disease, tonsillitis, chronic obstructive pulmonary disease (COPD), and multiple arthralgias. The RO has assigned 10 percent evaluations for the COPD and the multiple arthralgias, and zero percent evaluations for all other disorders. The Board will now examine the appropriateness of the rating assigned to each disorder. In doing so, the Board observes that when an unlisted disorder is encountered it is permissible to rate the disorder under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogus. 38 C.F.R. § 4.20 (1994). Moreover, in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a zero percent evaluation, a zero percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1994). Rheumatoid Arthritis/Multiple Arthralgias The RO evaluated the claim of rheumatoid arthritis according to 38 C.F.R. § 4.71(a), Code 5002 (1994). The clinical evidence, however, does not show any demonstrable evidence or diagnosis of rheumatoid arthritis. The veteran has, however, complained of joint pain, and some limitation of motion in his lumbar spine, hips, shoulder and knees has been found on VA examination. The RO has evaluated any limitation of motion under the general classification "multiple arthralgias," and assigned an analogus rating under diagnostic code 5003. In the Board’s opinion, however, the limitation of motion for each affected joint is more accurately rated by analogy by examining the appropriate diagnostic codes for each specific joints where a limitation of motion had been demonstrated. 38 C.F.R. § 4.20. In this respect, the rating schedule provides that a slight limitation of motion of the lumbar spine warrants a 10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion. 38 C.F.R. § 4.17a, Code 5292 (1994). At the April 1992 VA pension examination the lumbar flexion was to 70 degrees, and extension was to 30 degrees. Each movement was described as painful, and there was some local tenderness in the lower lumbar areas. No muscle spasm was noted. In light of these findings, the Board concludes that the veteran's limitation of motion of the lumbar spine is no greater than "slight," and that a 10 percent evaluation for the veteran’s lumbar disorder is appropriate. Limitation of flexion of a knee is evaluated by analogy to limitation of flexion and extension of a leg. 38 C.F.R. § 4.20. A zero percent evaluation is warranted for a limitation of flexion to 60 degrees. A 10 percent evaluation requires that flexion be limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5260. With respect to extension, 38 C.F.R. § 4.71a, Code 5261 provides that a zero percent evaluation is warranted when extension is limited to 5 degrees, and that a 10 percent evaluation is appropriate if extension is limited to 10 degrees. In addition, the rating schedule provides that slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. 38 C.F.R. § 4.71a, Code 5257. At the April 1992 VA pension examination, the veteran's knees flexed to 110 degrees bilaterally. No limitation of extension, subluxation, or instability was reported. At the more recent July 1992 VA pension examination, a full range of motion was noted in both knees, and again no subluxation or instability was reported. Accordingly, there is no basis for the assignment of anything greater than a zero percent evaluation for any limitation of motion of the veteran’s knees. With respect to the hips, limitation of flexion of either thigh to 45 degrees warrants a 10 percent evaluation. A 20 percent evaluation requires that flexion be limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5252. At the April 1992 VA pension examination, the veteran's hips flexed to 120 degrees bilaterally. At the July 1992 VA pension examination the hips demonstrated a full range of motion. Even assuming that the veteran currently has the same limitation of hip flexion found at the July 1992 VA pension examination, an evaluation in excess of zero percent is not in order. 38 U.S.C.A. § 5107, 38 C.F.R. § 4.71a, Code 5252. Finally, with respect to any limitation of shoulder motion, the rating schedule provides that a 20 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to the shoulder level. 38 C.F.R. § 4.71a, Code 5201. At the July 1992 VA pension examination, the veteran had mild discomfort upon extreme elevation of the shoulder joint. However, as this study also revealed a full range of shoulder motion, a zero percent evaluation is appropriate. Rheumatic Fever and Rheumatic Heart Disease 38 C.F.R. § 4.88a, Code 6309 provides that residuals of rheumatic fever with cardiac manifestations is evaluated under the provisions of 38 C.F.R. § 4.104, Code 7000. Diagnostic code 7000 provides that a 10 percent evaluation is warranted for inactive rheumatic heart disease without heart enlargement following established active rheumatic heart disease with an identifiable valvular lesion and slight, if any, dyspnea. A 30 percent evaluation is for assignment when there is a diastolic murmur with characteristic manifestations on electrocardiography, and when there is evidence of a definitely enlarged heart. As previously noted, R.T. Johnson, M.D., in a November 1991 statement, confirmed that he had diagnosed the veteran in November 1972 with rheumatic heart disease characterized by a systolic murmur. In June 1991, C. Wong, M.D., assessed that the veteran had very mild, class I, rheumatic heart disease. Examination of the cardiovascular system at the April 1992 VA pension examination revealed a very minimal, first degree systolic murmur at the aortic area which was not transmitted. In addition, the examiner noted that the veteran appeared to become dyspneic after walking, and even appeared to become somewhat dyspneic after talking. At the July 1992 VA pension examination, the heart sounds were found to be normal, and on auscultation no murmurs were heard. The above clinical evidence shows that the veteran has at least some evidence of inactive rheumatic heart disease, without heart enlargement, following established active rheumatic heart disease. This disorder is characterized by a minimal systolic murmur and dyspnea. Accordingly, consistent with the above discussed rating criteria, the Board concludes that a 10 percent evaluation is warranted. A 30 percent evaluation is not warranted in the absence of heart enlargement, and the absence of a diastolic murmur. Tonsillitis Tonsillitis is evaluated by analogy to chronic laryngitis. 38 C.F.R. § 4.20. A 10 percent evaluation is warranted for moderate chronic laryngitis with catarrhal inflammation of the vocal cords or mucous membranes and moderate hoarseness. 38 C.F.R. § 4.97, Code 6516. As the July 1992 VA pension examination revealed the veteran’s nose and throat to be unremarkable, a zero percent evaluation is in order. COPD COPD is evaluated by analogy to pulmonary emphysema. 38 C.F.R. § 4.20. A 10 percent evaluation is warranted for mild pulmonary emphysema with evidence of ventilatory impairment on pulmonary function testing and/or definite dyspnea on prolonged exertion. A 30 percent evaluation requires moderate pulmonary emphysema with moderate dyspnea occurring after climbing one flight of steps or walking more than one block on a level surface and pulmonary function test results which are consistent with findings of moderate emphysema. 38 C.F.R. § 4.97, Code 6603. At the April 1992 VA pension examination, the veteran became dyspneic after walking around the examining room and the hall and after talking for a while. At the July 1992 VA pension examination, palpation, percussion and auscultation showed no abnormality except for a few scattered rhonchi. The pulmonary function test was abnormal. The diagnosis was mild early COPD. Accordingly, the currently assigned 10 percent rating is appropriate. 38 C.F.R. § 4.97, Code 6603. In light of the above findings, it is evident that the veteran does not have a single disability that is totally disabling, and that, after using the combined rating schedule set forth at 38 C.F.R. § 4.25 (1994), that the veteran’s disabilities are not more than 30 percent disabling. Therefore, the veteran does not objectively warrant a permanent and total disability evaluation for pension purposes. 38 U.S.C.A. § 1502(a)(1); 38 C.F.R. § 4.16. The "subjective" standard for pension eligibility is also for consideration. In this respect, 38 C.F.R. § 3.321(b)(2) provides that pension may be granted "where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule, but is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors". In this case, the Board finds that the veteran's ailments have most likely rendered him unable to resume his prior occupation as a welder. The veteran is, however, still relatively young and he has an eighth grade education. Moreover, there is no opinion or competent evidence from any health care provider that this veteran’s disorders render him unemployable for all of the forms of substantially gainful employment available in the national economy, which are consistent with his age, education, and occupational experience. Therefore, the Board concludes that the veteran subjectively is not unemployable, and that he is not entitled to a permanent and total disability evaluation for pension purposes. 38 U.S.C.A.. §§ 1502, 1521; 38 C.F.R. §§ 3.321, 3.340, 4.15, 4.16, 4.17. While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER A permanent and total disability rating for pension purposes is denied. DEREK R. BROWN 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. 38 C.F.R. § 4.88a, Code 6309, also provides that a rating under Codes 5002 or 8 discussed supra, however, there is no evidence that the veteran suffers from rhe there is no evidence that the veteran suffers from, or even that he has ever bee chorea. Hence, the assignment of a rating under either of these diagnostic code