BVA9501347 DOCKET NO. 93-03 885 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to accrued benefits, based upon the veteran's claimed entitlement to a permanent and total disability rating for pension purposes. ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from November 1966 to December 1969. He was born in August 1947 and died in July 1991. The appellant is the veteran's widow. The appeal arises from a February 1992 rating decision in which the Regional Office (RO) denied accrued benefits, based upon the veteran's claimed entitlement to a permanent and total disability rating for pension purposes. The appellant filed a notice of disagreement in May 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the veteran was not able to work due to his disabilities when he died in July 1991. She also asserts that the evidence of record when the veteran died in July 1991 supported finding that entitlement to a permanent and total disability rating for pension purposes was warranted. 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 accrued benefits, based upon the veteran's claimed entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal has been developed. 2. According to the evidence of record when the veteran died in July 1991, he was 43 years old, had completed high school and had work experience as a laborer. 3. The evidence of record when the veteran died shows that his disabilities included pancreatitis, evaluated as 30 percent disabling; angina, evaluated as 30 percent disabling; hypertension, evaluated as 10 percent disabling; and chronic obstructive pulmonary disease and irritable bowel syndrome with large polyp, post-operative, evaluated as noncompensably disabling. The disabilities combined were 60 percent disabling. 4. The evidence of record when the veteran died reveals that he did not have disability ratable as totally disabling and did not have permanent loss of use of both hands or feet or of one hand and one foot or loss of the sight of both eyes and was not permanently helpless or bedridden. 5. The evidence of record when the veteran died shows that his disabilities, which were not the result of willful misconduct, did not permanently preclude him from engaging in substantially gainful employment, consistent with his age, education and occupational experience. CONCLUSION OF LAW The criteria for accrued benefits, based upon the veteran's claimed entitlement to a permanent and total disability rating for pension purposes, are not met. 38 U.S.C.A. §§ 1502, 1521, 5107, 5121 (West 1991); 38 C.F.R. §§ 3.301, 3.321(b)(2), 3.340, 3.342, Part 4, 4.7, 4.15, 4.16, 4.17, 4.19, 4.25, Diagnostic Codes 6600, 7005, 7101, 7319, 7347 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the claim for entitlement to accrued benefits, based upon the veteran's claimed entitlement to a permanent and total disability rating for pension purposes, is "well-grounded" within the meaning of 38 U.S.C.A. § 5107, that is, the claim is plausible, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Also, the Board points out that the evidence relevant to the claim for entitlement to accrued benefits is that which was of record when the veteran died. The Board further finds that the Department of Veterans Affairs (VA) has met its duty to assist in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107. Upon the death of the veteran, periodic monetary benefits to which he was entitled on the basis of evidence in the claims file at the time of his death, and due and unpaid for a period of not more than one year prior to death, may be paid to the appellant, as his spouse. 38 U.S.C.A. § 5121. According to the certificate of death, the veteran died in July 1991. At the time of the veteran's death, he had appealed a July 1990 rating decision by the RO which denied a permanent and total disability rating for pension purposes. A person shall be considered to be permanently and totally disabled if such a person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from: (1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by the Secretary of the VA to be of such nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C.A. § 1502. Objective standards for total ratings are found in 38 C.F.R. §§ 3.340 and 4.15. Under the provisions of 38 C.F.R. § 4.15, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled by the various bodily systems in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The evidence of record when the veteran died did not show that the specific disabilities listed in 38 C.F.R. § 4.15 were present. Under the circumstances, the Board will determine whether a 100 percent rating was warranted for any of the veteran's disabilities or whether a combined 100 percent rating was warranted based on the evidence of record when the veteran died. The Board notes that the most probative evidence in evaluating whether a permanent and total disability rating for pension purposes was warranted based on the evidence of record when the veteran died is the medical evidence dated a couple of years before his death. In the July 1990 rating decision, the RO determined that the veteran's disabilities were irritable bowel syndrome with large polyp, post-operative, evaluated as 30 percent disabling, and angina pectoris with hypertension, evaluated as 30 percent disabling. The RO also determined that the veteran's chronic alcoholism was due to his own vicious habits. The Board notes that symptomatology and impairment resulting from alcohol abuse is considered the result of the veteran's own willful misconduct, and therefore, may not be considered in determining whether the veteran is totally disabled for pension purposes. 38 C.F.R. § 3.301. Additionally, while the RO combined the veteran's hypertension and angina as one disability, the medical evidence supports evaluating those disabilities separately. Therefore, the Board will evaluate those disabilities separately. The Board notes that the RO apparently continued the 30 percent evaluation assigned for irritable bowel syndrome with large polyp, post-operative, from a July 1986 rating decision which denied a permanent and total disability rating for pension purposes. However, there is no medical evidence that the veteran has had complaints involving that disorder or received treatment for that disorder since 1986. Moreover, the veteran did not list that disorder as one of his illnesses during the previous 12 months, in the March 1990 VA Form 21-527. Thus, the Board finds that entire evidence of record when the veteran died supports revaluation of irritable bowel syndrome with large polyp, post- operative. 38 C.F.R. § 3.344 (1993). Under the provisions of Diagnostic Code 7319, a noncompensable evaluation is warranted for mild irritable colon syndrome manifested by disturbances of bowel function with occasional episodes of abdominal distress; and a 10 percent evaluation is warranted for moderate irritable colon syndrome manifested by frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. Part 4. Again, the probative evidence of record shows no treatment for irritable bowel syndrome with large polyp, post-operative, for several years prior to the veteran's death. Moreover, that evidence shows no disturbance of bowel functions, and abdominal distress was attributed to pancreatitis. Under the circumstances, the Board finds that a noncompensable evaluation more closely reflects the severity of any irritable bowel syndrome with large polyp, post-operative, at the time of the veteran's death. 38 C.F.R. § 4.7, Diagnostic Code 7319. The evidence of record when the veteran died shows that he was treated for pancreatitis. Pancreatitis is evaluated under the provisions of Diagnostic Code 7347. 38 C.F.R. Part 4. Under Diagnostic Code 7347, a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year; a 30 percent evaluation is warranted when the disorder is moderately severe with at least 4- 7 typical attacks of abdominal pain per year with good remission between attacks; and a 60 percent evaluation is warranted when there are frequent attacks of abdominal pain, loss of normal body weight and other findings showing continuing pancreatic insufficiency between acute attacks. Abdominal pain in this condition must be confirmed as resulting from pancreatitis by appropriate laboratory and clinical studies. 38 C.F.R. Part 4. VA hospital records show that the veteran was admitted in January 1990 with complaints of severe abdominal pain accompanied by nausea, vomiting, some dizziness and anorexia. Significantly, the examiner described the veteran as moderately obese. The diagnoses included pancreatitis. A few days after he was hospitalized, the veteran was eating a regular diet, and there were no dietary instructions or physical limitations upon discharge. Private hospital records show that the veteran was also treated for acute pancreatitis in June 1990. He was admitted complaining of abdominal pain and vomiting. A computerized axial tomography scan of the abdomen was consistent with pancreatitis. Examination revealed no unexplained weight change. The veteran was discharged on medication and a soft bland diet and advised to avoid alcohol. A VA outpatient treatment record dated in July 1990 includes a diagnosis of history of pancreatitis with moderate residual symptoms. Based on the evidence of record in July 1991, the criteria contemplated for a 30 percent evaluation under Diagnostic Code 7347 most closely reflect the degree of disability produced by the veteran's pancreatitis. While he had less than four attacks of abdominal pain in one year, he had more than one such attack and a VA physician in July 1990 described his residuals of pancreatitis as moderate. 38 C.F.R. § 4.7, Diagnostic Code 7347. The medical evidence of record when the veteran died also shows that he was admitted to a VA hospital in February 1990 complaining of chest pain which started about a year before and was diagnosed with angina. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1993). In this case, the Board finds that evaluation of angina is appropriate under Diagnostic Code 7005. Under Diagnostic Code 7005, a 30 percent evaluation is warranted for the veteran's angina when there is a history of substantiated anginal attacks and ordinary manual labor is feasible. A 60 percent evaluation is warranted when there is a history of substantiated repeated anginal attacks and more than light manual labor is not feasible. The veteran described the chest pain as mild the day he was admitted. He also related that the pain was accompanied by some lightheadedness, occurred up to three times a week and lasted no more than five minutes. Significantly, when the veteran was discharged from the VA hospital in February 1990, there were no physical activity restrictions. Thus, it appears that light manual labor was feasible. Therefore, the Board finds that no more than a 30 percent evaluation was warranted for angina. 38 C.F.R. § 4.7, Diagnostic Code 7005. Under Diagnostic Code 7101, a 10 percent evaluation is warranted for hypertensive vascular disease (essential arterial hypertension) when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more; and a 20 percent evaluation is warranted when diastolic pressure is predominantly 110 or more with definite symptoms. 38 C.F.R. Part 4. Private hospital records dated in June 1986 include a diagnosis of essential hypertension. According to VA hospital records dated in January 1990, the veteran's blood pressure upon admission was 162/110. He was started on medication for his hypertension, and a few days after admission, his diastolic pressure was below 100. While the medical evidence of record at the time the veteran died shows that he was on medication for hypertension, his diastolic blood pressure was predominantly below 110. Thus, a 10 percent evaluation was warranted for hypertension. 38 C.F.R. § 4.7, Diagnostic Code 7101. According to a January 1990 VA X-ray, the veteran had slight chronic obstructive pulmonary disease. Significantly, however, the veteran did not report any respiratory related complaints. Under the circumstances, the Board finds that a noncompensable evaluation under the criteria of Diagnostic Code 6600 most closely approximates the severity of the veteran's chronic obstructive pulmonary disease which was described as slight. 38 C.F.R. §§ 4.7, 4.20. Under Diagnostic Code 6600, a noncompensable evaluation is warranted when the disorder is mild with slight cough, no dyspnea and few rales; and a 10 percent evaluation is warranted when the disorder is moderate with considerable night or morning cough, slight dyspnea on exercise and scattered bilateral rales. 38 C.F.R. Part 4. The January 1990 hospital records show that the veteran's respiration was even and unlabored upon the day he was admitted. Also, examination was negative for change in cough and shortness of breath. The Board also notes that medical records dated several years prior to the veteran's death show treatment for or complaints related to disorders including ulcer disease, gastritis, a cyst and depression, and private psychological testing in 1985 revealed features of an anti-social personality disorder. Significantly, however, there was no evidence of record in July 1991 tending to show that any of those disorders had been present in recent years. The medical evidence dated in 1990 also shows a history of upper respiratory infections and a diagnosis of urinary tract infection. However, the Board finds that the evidence is against finding that such infections are likely to be permanently disabling. Thus, none of the veteran's disabilities, excluding alcoholism, warrants a 100 percent evaluation under the criteria set forth in the VA Schedule for Rating Disabilities, nor do the individual disabilities combine to 100 percent under the Combined Ratings Table. 38 C.F.R. § 4.25. The combined evaluation for the veteran's disabilities is 60 percent. However, a total rating may be assigned where the veteran is unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent and the percentage requirements of 38 C.F.R. § 4.16(a) are met. 38 C.F.R. § 4.17. Under the provisions of 38 C.F.R. § 4.16, a permanent and total disability rating for pension purposes is warranted when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. Unfortunately, in this case, the criteria of 38 C.F.R. § 4.16(a), have not been met. However, in addition, 38 C.F.R. § 3.321(b)(2) provides that where the veteran does not meet the percentage requirements of the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, but is unemployable by reason of his age, occupational background, or other related factors, a permanent and total disability rating on an extra-schedular basis is warranted. 38 C.F.R. § 4.17(b). In a VA Form 21-527 (Income-Net Worth and Employment Statement) received in March 1990, the veteran reported that he became totally disabled in March 1986. He also related that he last worked as a laborer, earned approximately $ 15,800 a year, lost four years due to illness and last worked in October 1986. According to the veteran, his illnesses during the previous 12 months included pancreatitis, coronary artery disease and hypertension. The Board also notes that in a VA Form 21-526 (Veteran's Application For Compensation Or Pension) received in April 1986, the veteran related that he completed high school and received additional training related to waste water treatment. In a March 1986 written statement, a private physician reported that the veteran required time off from work for the purpose of attending an alcohol treatment program. The diagnoses at that time were alcohol addiction, pathologic intoxication and depression. Also, according to the Social Security Administration (SSA) in August 1990, the veteran was determined to be disabled as of March 1986 "under Listing 12.09." In July 1991, the SSA added that the veteran's disability was based on a primary diagnosis of alcohol dependence continuous and a secondary diagnosis of organic personality syndrome. While the SSA's July 1991 statement was dated after the veteran's death, the Board has considered that statement as merely a clarification of the statement that was of record when the veteran died. Additionally, in a private medical record dated in July 1985, the veteran, himself, reported that he had started to experience job related problems due to his drinking. Thus, the objective evidence of record when the veteran died shows that any difficulties he had with employment were attributable to alcoholism, a disability due to willful misconduct, and psychiatric related complaints. Significantly, the medical evidence that was before the RO when the veteran died does not show treatment for alcoholism or psychiatric complaints since 1986. Moreover, the evidence of record in July 1991 shows that the veteran, only 43 years old, had a high school education and experience as a laborer and that his disabilities, which were not due to willful misconduct, were productive of no significant restrictions on his physical activities. Thus, the veteran's disabilities, excluding alcoholism, did not prevent him from engaging in occupations requiring physical labor, an area of work in which the veteran had experience. Under the circumstances, the Board finds that based on the evidence of record when the veteran died in July 1991, his disabilities, which were not the result of willful misconduct, did not permanently preclude him from engaging in substantially gainful employment, consistent with his age, education and occupational experience. Thus, the requirements for a permanent and total disability rating for pension purposes were not met when the veteran died. 38 U.S.C.A. §§ 1502, 1521, 5121; 38 C.F.R. §§ 3.321(b)(2), 3.340, 4.15, 4.16, 4.17. Finally, when after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. 38 U.S.C.A. § 5107(b). However, the preponderance of the evidence is against the appellant's claim for entitlement to accrued benefits, based upon the veteran's claimed entitlement to a permanent and total disability rating for pension purposes. Therefore, the resolution of doubt is not necessary, and that claim is denied. ORDER Accrued benefits, based upon the veteran's claimed entitlement to a permanent and total disability rating for pension purposes, are denied. U. R. POWELL 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.