BVA9505577 DOCKET NO. 93-13 667 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran was born in February 1954, and had active military service from April 1971 to January 1972. This appeal arises from an October 1992 Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO) rating action denying a permanent and total rating for VA pension benefit purposes. The veteran's case was certified to the Board of Veterans' Appeals (Board) in June 1993. Received at the Board in June 1994, with a consent release form signed by the veteran, were VA clinic records from May and June 1994. This evidence will be considered by the Board. 38 C.F.R. § 20.1304(c) (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding that the evidence of record supports a permanent and total rating for pension purposes. 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(s). 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 supports a grant of entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. Evidence sufficient for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran was diagnosed as positive for Human immunovirus (HIV) infection in 1991. 3. By 1992 AZT/DDC were being administered; in June 1994 AZT/DDC were discontinued because of the clinical deterioration and advanced stage of disease. 4. The veteran has permanent disability, associated with his HIV infection, of sufficient severity to preclude all types of substantially gainful employment consistent with his age, education and occupational experience. CONCLUSION OF LAW The veteran is 100 percent disabled and is unemployable by reason of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107(a) (West 1991); 38 C.F.R. §§ 3.340, 3.342, 4.7, 4.88 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for pension is well-grounded, and the RO has met the duty to assist under 38 C.F.R. 5107(a) ( West 1991) The law authorizes the payment of pension to a veteran of a war who had the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521. If his disability is less that 100 percent, he must be unemployable by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342, and Part 4. VA outpatient clinic records from June 1991 to February 1992 show that the veteran was found to be HIV positive in May 1991, when donating blood for his wife. In June 1991 he was 5 feet 8 inches in height, and weighed 158 pounds. While the veteran had multiple complaints in June and August 1991, an infectious disease consultation in September 1991 found him clinically stable. Later in September, it was indicated that the veteran was to be started on infectious disease protocol and Septra prophylaxis. In October 1991 he was seen for fever, rash, myalgia and arthralgias. The diagnoses were viral syndrome, macular rash and HIV positive. A VA physician, in a letter dated in June 1992 reported that the veteran was being followed at the infectious disease clinic and his condition had been classified by CDC as group IV, subgroup C. When examined by the VA in July 1992, it was noted that the veteran was being administered AZT and DDC, multivitamins, Riopan, and drops for eye irritation. On physical examination the veteran weighed 153 pounds and was described as well nourished and well developed. No lab studies were performed, and there were no pertinent clinical findings. The diagnosis was HIV seropositivity by history. In May 1994 the veteran was admitted to a VA medical facility and treated for mental changes and seizures, and a diagnosis of CNS toxoplasmosis. With medication changes the seizures stopped. In early June it was recorded that the veteran had been on AZT/DDC combination therapy for about 3 years, and a few months before had developed CNS toxoplasma that responded with treatment but he had a relapse of the CNS toxoplasma. His medication was changed and he responded favorably. His medication included PCP prophylaxis. It was recorded that the veteran was clinically deteriorated, and "moreover is down the hill." He was reported to be fully oriented despite opportunistic infections, and "in view of the clinical picture and advanced stage of disease" he was discontinued from AZT/DDC. Several days later in June it was noted that the veteran was chemically stable despite his poor prognosis and general health status. A fever was noted and medication was prescribed. AIDS with recurrent opportunistic infection or with secondary diseases afflicting multiple body systems; HIV-related illness with debility and progressive weight loss, without remission, or few or brief remissions, warrant a 100 percent rating. With refractory constitutional symptoms, diarrhea, and pathological weight loss; or minimum rating following development of AIDS- related opportunistic infection or neoplasm, a 60 percent rating is assigned. 38 C.F.R. § 4.88, Diagnostic Code 6351 (1994). The May and June 1994 VA records show that the veteran was hospitalized, had opportunistic infection, recurring fever, seizure problems, and CNS toxoplasma, with discontinuance of the AZT/DDC therapy. The Board finds that overall there has been a progressive deterioration of the veteran's health since June 1991, and that currently the manifestations associated with his HIV status nearly approximate the criteria for a 100 percent evaluation. 38 C.F.R. § 4.7. Since the veteran should be assigned a 100 percent schedular rating for his HIV infection, and we find that this disability is permanent, the "average person" standard of 38 U.S.C.A. § 1502(a)(1) is met, which means that the veteran is permanently and totally disabled. The Board notes that the veteran was under 40 years old at the time he filed his claim for pension benefits; however, he is currently 41 years old, and the 1994 clinical records reflect that his condition has progressed to the point that treatment and rehabilitation would still result in permanent disability precluding more than marginal employment. 38 C.F.R. § 3.342(b)(3) (1994). ORDER A permanent and total disability rating for pension purposes is granted. THOMAS J. DANNAHER 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.