Citation Nr: 0001369 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 94-37 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Associate Counsel INTRODUCTION The veteran had active military service from September 1971 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) from a December 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was remanded by the Board in March 1997. While the case was in remand status, jurisdiction over the claim was transferred to the RO in Detroit, Michigan, in March 1999. The case was returned to the Board in November 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's alcohol and substance abuse is primary in nature and is the result of his own willful misconduct. 3. The veteran's psychiatric disability, to include organic brain disorder, is productive of no more than moderately large social and industrial impairment, with symptoms of depression, paranoid delusions, sleep impairment, and irritability, but with no evidence of deterioration in memory, impaired judgment, significant speech abnormalities or a thought disorder. 4. The veteran has hepatitis without evidence of liver damage or associated fatigue, anxiety, mental depression or gastrointestinal disturbances. 5. The veteran's spine disability is manifested by low back pain without any objectively demonstrated pathology and by degenerative disc disease of the cervical spine without any objectively demonstrated functional impairment. 6. The veteran's disabilities do not preclude him from engaging in substantially gainful employment, consistent with his age, education and occupational history. 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, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.340, 4.15, 4.17 (1999). 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). Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In this regard the Board notes that, following the Board's March 1997 remand, the Chicago RO attempted to contact the veteran in September 1997 at the last address supplied by the veteran, but that the RO's correspondence was returned as undeliverable, as the veteran had moved without leaving a forwarding address. The Chicago RO, based on information apparently supplied by the veteran to the VA Medical Center (VAMC) in Chicago, Illinois, thereafter resent the correspondence in October 1997 to an address in Detroit, Michigan; the correspondence was not returned as undeliverable. The record reflects that the veteran thereafter failed to report for VA examinations scheduled in May 1999 at the Detroit, Michigan VAMC. While the VA medical center letter to the veteran identifying the precise date, time and location of his scheduled examinations is not on file, the medical center indicated that such a letter, as well as follow up correspondence, had been sent to the Detroit address on file with VA. In addition, the veteran's failure to report for examination was noted in a July 1999 Supplemental Statement of the Case (SSOC); there is no indication that the SSOC was returned as undeliverable. Thereafter, the veteran did not claim that he did not receive notice of the examination nor did he express his willingness to report for an examination. In Wood v. Derwinski, 1 Vet. App. 190 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that the duty to assist is not a one-way street, and an appellant must do more than passively wait for assistance when he has information essential to his claim. Id . at 193. Since the veteran has prevented full development of his claim by failing to appear, without good cause, for his VA disability examinations scheduled in connection with the Board's March 1997 remand, the Board can only address the evidence currently of record. The law authorizes payment of pension benefits to a veteran of war who has the requisite service and who is permanently and totally disabled due to nonservice-connected disabilities not the result of his willful misconduct. 38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. § 3.342 (1999). Permanent and total disability will be held to exist where the person is unemployable as a result of disability reasonably certain to last throughout the remainder of the person's life. Talley v. Derwinski, 2 Vet. App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15 (1995). There are three alternative bases upon which a finding of permanent and total disability for pension purposes may be established. One way is to establish, by use of the appropriate diagnostic codes of VA's Schedule for Rating Disabilities, that the veteran has a lifetime impairment which is sufficient to render it impossible for an "average person" to follow a substantially gainful occupation. The "average person" standard is outlined in 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. §§ 3.340(a), 4.15. This process requires rating and then combining each disability rating pursuant to 38 C.F.R. § 4.25 (1999) to determine whether the veteran holds a combined 100 percent evaluation for pension purposes. Further, permanent total disability evaluations for pension purposes will be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary or familial conditions, as well as for disabilities that require indefinite periods of hospitalization. 38 C.F.R. § 3.342(b) (1999). Alternatively, a veteran may establish permanent and total disability for pension purposes by showing that he has a lifetime impairment precluding him from securing and following substantially gainful employment. 38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. § 4.17 (1999). However, if there is only one such disability, it must be ratable at 60 percent or more; if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.16(a), 4.17 (1999). Finally, even if a veteran's disability ratings fail to meet the aforementioned percentage standards, a permanent and total disability rating for pension purposes may be granted on an extra-schedular basis if the veteran is unemployable by reason of his disabilities, age, occupational background and other related factors. 38 C.F.R. §§ 3.321(b)(2), 4.17(b) (1999). In denying entitlement to nonservice-connected pension benefits, the RO assigned a 10 percent rating for the veteran's psychiatric disability, to include organic brain syndrome; a 10 percent rating for hepatitis and pancreatitis; a noncompensable rating for skin disability; and a noncompensable rating for back disability. The RO considered the veteran's substance abuse to be the result of willful misconduct and accordingly did not rate that disability. The combined rating for the veteran's nonservice-connected disabilities was calculated to be 20 percent. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the evidence of record pertaining to the history of the veteran's disorders. The Board has found nothing in the historical record which would lead it to conclude that the recent evidence of record is not adequate for rating purposes, nor has the Board found any of the historical evidence in this case to be of sufficient significance to warrant a specific discussion herein. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). I. A. Alcohol and drug abuse Disability pension is not payable for any condition due to the veteran's own willful misconduct. 38 C.F.R. § 3.301(b). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(3). Service medical records show that the veteran was evaluated for possible drug use, although no evidence of such use was found. VA treatment records for the veteran for 1989 to May 1993 show a long history of alcohol and drug use. The reports also show treatment for psychiatric disability, although none of the treatment reports suggests that such disability caused or chronically worsened the veteran's alcohol or substance abuse. The veteran reported that he had a history of unemployment secondary to his alcohol abuse. On file is the report of an August 1993 VA examination, at which time the veteran reported that he continued to use alcohol and street drugs. Following evaluation of the veteran, the examiner diagnosed multiple substance abuse with secondary organic brain syndrome. The examiner concluded that the veteran was totally disabled by his substance abuse, and was not competent to handle his own financial affairs. After careful review of the record, and in light of the absence of any medical evidence to the contrary, the Board concludes that the veteran's alcohol and substance abuse is primary in nature and is thus a product of willful misconduct. As such, it may not be considered in determining whether the veteran is permanently and totally disabled for pension purposes. 38 C.F.R. § 3.301(b), (c). B. Psychiatric disability, to include organic brain syndrome While primary alcohol and drug abuse is considered to be the product of willful misconduct, organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, or which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs, will not be considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(2), (3). Factual background On file are VA treatment records of the veteran for 1989 to May 1993 which show complaints of depression, sleep difficulty, irritability, problems with concentration and memory, and feelings of guilt, worthlessness, hopelessness and helplessness. The veteran reported that he was unemployed and, at times, homeless. On mental status examination, the veteran presented as casually dressed with good hygiene and grooming. He was alert, oriented and cooperative, but exhibited a depressed mood and flat to constricted affect. He was occasionally avolitional but his speech was essentially normal. He denied any suicidal or homicidal ideation, as well as visual hallucinations, but admitted to rare auditory hallucinations and to paranoid delusions. However, psychotic features were largely absent and there was no evidence of a thought disorder. He was described as isolative, although he did interact with his girlfriend. His insight and judgment were considered fair, and his psychiatric symptoms were noted to improve with medication. Pertinent diagnoses included dysthymia, major depression with psychotic features, and dependent personality traits. The veteran was assigned Global Assessment of Functioning (GAF) scores ranging from 65 to 70. The veteran was afforded a VA examination in August 1993, at which time he reported that he was on medication for depression. He indicated that he lived with his girlfriend and three children and that he attended church, although he denied seeing any friends. On mental status examination the veteran was casually but neatly dressed and oriented. He was cooperative but exhibited very little eye contact. His stream of speech was disorganized, very hesitant, and slow, with very little spontaneity or productivity, and his thinking was slowed down. However, he exhibited no bizarreness or motor abnormalities. His affect was limited. There was no evidence of perceptual disturbance and his sensorium was reasonably clear; his memory was intact. The veteran was diagnosed with organic brain syndrome, secondary to alcohol and substance abuse, manifested by marked slowing of all cognitive processes. The examiner concluded that the veteran was totally disabled by his substance abuse, and was not competent to handle his own financial affairs. Analysis The RO evaluated the veteran's psychiatric disability, to include organic brain syndrome, as 10 percent disabling under DC 9326. The Board notes that effective November 7, 1996, VA revised the criteria for diagnosing and evaluating psychiatric disabilities. 61 Fed. Reg. 52695 (1996). On and after that date, all diagnoses of mental disorders for VA purposes must conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 61 Fed. Reg. 52700 (1996) (codified at 38 C.F.R. § 4.125). The new criteria for evaluating psychiatric disability are codified at 38 C.F.R. § 4.130 (1999). In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the Court held that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. In the present case, the Board notes that the RO evaluated the veteran's claim under the previous regulations in making its rating decision of December 1993. The March 1994 Statement of the Case referred to the regulations then in effect. The RO subsequently issued a supplemental statement of the case in July 1999 which considered the veteran's claim under the new schedular criteria. Accordingly, there is no prejudice to the veteran under Bernard v. Brown, 4 Vet. App. 384 (1993), and in light of Karnas, the Board will proceed to analyze the veteran's disability under both sets of criteria to determine if one is more favorable to the veteran. Under the old criteria found at 38 C.F.R. § 4.132, Diagnostic Code 9325, dementia that is substance-induced warrants a 10 percent rating for mild impairment of social and industrial adaptability. A 30 percent rating is warranted for definite impairment of social and industrial adaptability and a 50 percent rating is appropriate for considerable impairment of social and industrial adaptability. A 70 percent rating is warranted for severe impairment of social and industrial adaptability and a 100 percent rating is warranted for impairment of intellectual functions, orientation, memory and judgment, and lability and shallowness of affect of such extent, severity, depth, and persistence as to produce total social and industrial inadaptability. The basic syndrome of organic mental disorder may be the only mental disturbance present or it may appear with related "psychotic" manifestations. An organic mental disorder with or without such qualifying phrase will be rated according to the general rating formula for organic mental disorders, assigning a rating which reflects the entire psychiatric picture. 38 C.F.R. § 4.132, Diagnostic Code 9325 and notes (1), (2) (1996). In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to construe the term "definite" in a manner that would quantify the degree of impairment. In a subsequent opinion, the General Counsel of VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93 (Nov. 9 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). Under the new criteria, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400 (1999). Review of the record reflects that the veteran experiences depression, sleep difficulty, paranoid delusions, irritability and some impairment of cognitive functioning associated with his psychiatric disability. The Board therefore concludes that a 30 percent rating for psychiatric disability is appropriate. However, the Board concludes that a rating greater than 30 percent is not warranted. In this regard, while the veteran experiences depression and irritability, he notably has consistently denied any suicidal or homicidal ideation, and there is otherwise no evidence on file of violent behavior. Moreover, while the veteran clearly exhibits some cognitive slowness, the August 1993 VA examiner concluded that the veteran nevertheless exhibits no impairment of memory and described the veteran's insight and judgment as fair. In addition, while the veteran exhibits some avolitional tendencies and an occasional flat affect, and while his speech was disorganized on examination, the veteran nevertheless was consistently alert, oriented and cooperative on evaluation, and in fact actively sought to participate in a "PRIDE" program through VA. Moreover, while the veteran admitted to auditory hallucinations and paranoid delusions, his hallucinations occurred rarely, no evidence of a thought disorder was identified on multiple evaluations, and the veteran's psychiatric symptoms in fact improved with medication. The Board notes that the veteran has been unemployed since at least 1992 and that he tends to isolate himself. Nevertheless, his unemployability was attributed on examination solely to his alcohol and substance abuse, and not to his psychiatric disability. Moreover, the record reflects that the veteran continues to maintain relationships with his girlfriend and with her children. Accordingly, the Board concludes that there is no basis under either the new or the old criteria upon which to assign a rating greater than 30 percent for psychiatric disability, to include organic brain disorder. C. Hepatitis and pancreatitis. On file are VA treatment records of the veteran for 1989 to May 1993 which show that he was diagnosed with active hepatitis after laboratory testing disclosed a reactive hepatitis C virus antibody, and following a liver biopsy showing active hepatitis. The treatment reports show that the veteran's serum glutamic oxaloacetic transaminase (SGOT) levels were occasionally abnormal on liver function tests, although the record reflects that the SGOT levels stabilized with Interferon injections; the liver function tests were otherwise unremarkable, although the records indicate that the veteran was inconsistently compliant with his injections. The treatment records are otherwise negative for any complaints associated with his liver disability, other than stomach problems secondary to the use of Interferon. Physical examination disclosed muddy sclerae, but the veteran was anicteric with no evidence of encephalopathy. His liver edge was palpable on deep inspiration, with mild tenderness. Abdominal ultrasound showed a liver homogeneous echo pattern; the left lobe of the liver was prominent, but the biliary canals, hepatic vein, and portal vein were not dilated. The pancreas was normal. The veteran was afforded a VA examination in August 1993. At that time, he reported a history of Hepatitis C and pancreatitis and exhibited tenderness of his right upper quadrant on physical examination. Examination of the endocrine system was normal, except for the liver and pancreas. The examiner diagnosed the veteran with Hepatitis C and pancreatitis. The RO evaluated the veteran's hepatitis and pancreatitis as 10 percent disabling under DCs 7345 and 7347. Ratings under diagnostic codes 7345 to 7348 inclusive will not be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (1999). Diagnostic Code 7345 provides that a 10 percent evaluation is warranted for infectious hepatitis with demonstrable liver damage with mild gastrointestinal disturbance. A 30 percent evaluation is warranted for minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. A 60 percent evaluation is warranted for moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. 38 C.F.R. § 4.114, Diagnostic Code 7345 (1999). A 10 percent evaluation is warranted for pancreatitis with at least one recurring attack of typical severe abdominal pain in the past year. A 30 percent evaluation is warranted for moderately severe pancreatitis, with at least 4-7 typical attacks of abdominal pain per year with good remission between attacks. Abdominal pain in this condition must be confirmed as resulting from pancreatitis by appropriate laboratory and clinical studies. 38 C.F.R. § 4.114, Diagnostic Code 7347 and Note 1 (1999). Although the veteran was diagnosed on VA examination with pancreatitis, this was notably based on history supplied by the veteran, and there is no medical evidence suggesting that the veteran's gastric complaints were attributable to pancreatitis. Moreover, although the veteran clearly has hepatitis, and while his SGOT levels have fluctuated, his liver function tests have been described as stable, and there is otherwise no evidence of more than mild, if any, liver damage associated with his disability. In addition, while the veteran complained on several occasions of gastric distress, his symptoms were notably attributed to the use of Interferon, and not to his underlying hepatitis. Moreover, there is no medical evidence on file linking any psychiatric symptoms of the veteran to his hepatitis. There therefore is no basis for the assignment of a rating greater than 10 percent for the veteran's hepatitis or pancreatitis. D. Skin disability VA treatment records of the veteran for 1989 to May 1993 disclose isolated complaints of a pruritic rash on the veteran's back, arms and neck; he reported experiencing difficulty sleeping due to itchiness. Physical examination showed the presence of small areas of tinea versicolor lesions on the arms, back and chest. The lesions improved with medication. On VA examination in August 1993, physical examination of the veteran's skin was normal. The RO rated the veteran's skin disability as noncompensably disabling under Diagnostic Code 7814. That code in turn provides that the code for eczema is for application, dependent upon the location, extent, and repugnant or otherwise disabling character of manifestations. 38 C.F.R. § 4.118, Diagnostic Code 7814 (1999). A noncompensable rating is warranted for slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent rating is warranted for exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent evaluation is warranted for exudation or itching constant, extensive lesions, or marked disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7806 (1999). The medical evidence on file shows that the veteran's skin disability affects nonexposed, nonextensive areas, without evidence of exfoliation or exudation. Moreover, while the veteran complains of itching associated with his disability, there is no indication that the itching is constant or more than minor in nature, and the August 1993 examiner found no evidence of any skin abnormalities. Accordingly, there is no basis for the assignment of a compensable rating for skin disability. E. Back and neck disabilities VA treatment records of the veteran for 1989 to May 1993 show complaints of intermittent back pain confirmed on physical examination; he reported using medications for the relief of his pain. X-ray studies of the lumbosacral spine were unremarkable, but X-ray studies of the cervical spine showed mild degenerative disc disease at C4-5. The veteran was afforded a VA examination in August 1993, at which time he reported using medication for back pain. On physical examination, the veteran exhibited normal posture and gait, and examination of his musculoskeletal system was within normal limits. The RO assigned the veteran a noncompensable rating under 5295 for his back disability. Under that code, a noncompensable rating is warranted for lumbosacral strain with slight subjective symptoms only. A 10 percent evaluation is appropriate for lumbosacral strain with characteristic pain on motion. A 20 percent rating is warranted for lumbosacral strain with muscle spasm on extreme forward bending with unilateral loss of lateral spine motion in a standing position. 38 C.F.R. § 4.71a, Diagnostic Code 5295. A 10 percent evaluation is warranted for slight limitation of cervical spine motion. A 20 percent evaluation is warranted for moderate limitation of cervical spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (1999). A 10 percent evaluation is warranted for slight limitation of lumbar spine motion and a 20 percent evaluation is warranted for moderate limitation of lumbar spine motion. 38 C.F.R. § 4.71a, Diagnostic code 5292. Review of the record discloses the presence of objective evidence of low back pain, although no underlying pathology supporting the veteran's symptoms has been identified. Accordingly, a 10 percent evaluation is warranted for his disability. The Board notes, however, that an evaluation greater than 10 percent is not warranted in light of the absence of any evidence of underlying pathology, neurological impairment, or any limitation of lumbar spine motion. As explained previously, the veteran failed to report for a VA examination of his disabilities, and the Board must therefore evaluate the veteran's disability based on the evidence of record. Moreover, although the veteran has degenerative disc disease of the cervical spine, the medical evidence on file is notably negative for any evidence of associated pain, and there is otherwise no medical evidence of limitation of cervical spine motion or other functional impairment associated with his cervical spine. Accordingly, a compensable evaluation is not warranted for the veteran's neck disability. The Board notes that a higher rating may be awarded based on functional loss due to pain, under 38 C.F.R. § 4.40 (1999), or based on weakness, fatigability or incoordination pursuant to 38 C.F.R. § 4.45 (1999). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes, however, that functional impairment caused by pain is specifically contemplated by the diagnostic code relating to lumbosacral strain, and there is no evidence that the veteran's range of lumbar or cervical motion is limited, or that he exhibits any weakness, incoordination or fatigability associated with his lumbar or cervical spines. As discussed previously, the veteran failed to report for VA examinations scheduled for the purpose of evaluating the veteran's disability. Accordingly, the Board finds that an evaluation in excess of 10 percent evaluation under the provisions of 38 C.F.R. §§ 4.40 and 4.45 is not warranted. F. Miscellaneous In making these determinations, the Board has afforded the veteran every possible reasonable benefit of the doubt, as it is required to do. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102, 4.3 (1999). Assuming, without conceding, that each of the veteran's nonservice-connected disabilities is permanent in accordance with 38 C.F.R. § 4.17, the veteran's disabilities are objectively determined not to be representative of a total, 100 percent schedular evaluation, given that they combine only to 40 percent, in accordance with 38 C.F.R. § 4.25. Accordingly, on the basis of the objective "average person" standard of review, a permanent and total disability evaluation is not warranted. II. The Board also concludes that the veteran does not satisfy the criteria for a schedular permanent and total evaluation under 38 C.F.R. §§ 4.16(a) and 4.17. As the veteran has more than one disability, he is required to have at least one disability rated as at least 40 percent disabling in order to meet the threshold requirement of Section 4.16(a). In this case, the veteran's psychiatric disability, to include organic brain syndrome, is rated at 30 percent; there is no other higher-rated disability. In addition, the total combined rating of all of the veteran's nonservice-connected disabilities is 40 percent. See 38 C.F.R. §§ 4.16(a), 4.25 (1999). III. The Board has also considered whether a permanent and total disability rating for pension purposes on an extra-schedular basis may be authorized under 38 C.F.R. § 3.321(b)(2) (1999). The Board notes that in his May 1993 application for pension benefits, the veteran reported that he was born in February 1951 and that he last worked in 1992. He reported that he had completed a general equivalency diploma and one year of college. While the veteran reported that he last worked in 1992, treatment records indicate that the veteran in fact started employment in a "PRIDE" program in 1993, although he declined to participate in occupational therapy. Moreover, the veteran himself has attributed his history of unemployment to his substance abuse and the August 1993 VA examiner concluded that the veteran in fact was totally disabled because of his alcohol and substance abuse; the examiner did not implicate any other disability. Accordingly, the Board must conclude that even with consideration of the above subjective factors, the veteran's cognizable disabilities are not sufficient to render him unemployable. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). ORDER Entitlement to a permanent and total disability rating for pension purposes is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals