BVA9508389 DOCKET NO. 93-13 011 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from December 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied entitlement to a permanent and total disability rating for pension purposes. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that he has been unemployed for more than six years, due primarily to a low back and right leg disorder, although he also has high blood pressure, which has been hard to control, and a heart problem. He adds that his back disorder is extremely painful, that it limits the length of time he can sit, stand, or walk, and that the nerves in his leg sometimes start jumping, causing him to fall. He states that he has always been in the construction trade, but is physically unable to perform that kind of work any more. 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 evidence supports the appellant's claim for a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran, who was born in February 1948, completed three years of high school and was last employed as a carpenter in May 1989. 3. He currently has lumbar spinal stenosis, status post laminectomy L4-L5 and diskectomy with radiculopathy. 4. The veteran's lumbar spinal stenosis is severe and ratable at 60 percent; he also has hypertensive vascular disease is productive of a 20 percent disability for a combined evaluation of 70 percent. 5. The veteran does not meet the criteria for the "average" impairment in earning capacity. 6. The veteran is unemployable due to lifetime disabilities of such extent and severity as to permanently prevent him from engaging in all types of substantially gainful employment. 7. The veteran's most significant current physical disabilities are not due to willful misconduct. CONCLUSION OF LAW The requirements for entitlement to a permanent and total disability rating for pension purposes have been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.15, 4.16, 4.17, 4.25, 4.71a, Diagnostic Code 5293; 4.104, Diagnostic Code 7101 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim for a permanent and total disability rating for pension purposes is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available 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. I. Background The record reflects that the veteran was born on February [redacted] 1948, and that he has had three years of high school. His occupational history reveals that he has worked at various jobs in the construction trades, primarily as a carpenter. It appears that he has not worked steadily since 1989. He has been receiving Social Security supplemental security income payments since November 1992. In September 1989, the veteran was seen at a VA outpatient clinic with a history of four months of low back pain. He had seen other physicians, who told him to return to the VA Medical Center for surgery, but he had avoided doing this. He complained of a right lower lumbar pain, radiating to the right leg, mostly in the calf, continuing down to the foot and associated with numbness and tingling. There was no urinary or bowel incontinence, and he had no lower left extremity symptoms. He reported that he had fallen many times because his right leg would suddenly become numb. He had a history of a heart attack at age 29 while working in the heat and a more recent history of hypertension, noncompliant with medications. He stated that he did not want pain medication, but could live with the pain. He would not comply with bed rest and did not want surgery. The examination showed mild lower lumbar tenderness, but no paraspinal pain. There was a good range of motion at the hip and full extension to 90 degrees without pain. There was diffuse right leg weakness in all muscle groups. The veteran would not walk on his toes or heels, but would arise from a sitting position. There was decreased sensation in the right leg in all modalities, in a diffuse pattern. An x-ray showed an old compression fracture of the lumbar spine. The impression was chronic low back pain with compression fracture, without evidence of cord compression. In March 1990, the veteran was admitted to the Nashville, Tennessee, VA Medical Center because of increased low back pain after a reported fall nine months previously. It was noted that he had an L3 fracture at that time which was thought to be old. Over the past several months, the pain had been gradually worsening. At the time of admission, the veteran complained of low back pain with radiation to the right hip laterally to the mid-calf and of some weakness and numbness in the leg. He denied any left leg symptoms or any bowel or bladder complaints. Past medical history revealed hypertension and a mild myocardial infarction at the age of 29. Physical examination showed that the veteran's back was nontender, with a decreased range of motion secondary to pain. Neurologic examination revealed that pinprick sensation was diminished on the lateral and medial side of the lower extremity on the right. The veteran limped on the right leg and had symmetric deep tendon reflexes. Straight leg test was positive on the right at 45 degrees. Cross straight leg raising was positive at 60 degrees. While in the hospital, the veteran was treated for hypertension. He underwent a lumbar myelogram, which demonstrated moderate L4-5 disk bulge, but no frank disk herniation. These findings were confirmed by CT scan. Diagnoses were lumbar radiculopathy and hypertension. In August 1991, the veteran was readmitted to the hospital for repeat study, since he had failed to improve with conservative measures. Neurological examination showed decreased sensation over the dorsum of the right foot with a decreased ankle jerk bilaterally. Straight leg raise was positive on the right at 45 degrees. Motor examination was normal with the exception of weakness of the ankle and dorsiflexors. A lumbar myelogram revealed a prominent, diffuse disc bulge at L4-5, which appeared more prominent and larger than one on previous study. It appeared to be compromising the thecal sac to some degree. On further questioning it was found that the pain syndrome was most severe in the back and less severe in the lower extremities. It was suggested to try further conservative therapy. In November 1991, the veteran underwent a decompressive lumbar laminectomy at L4-5, with diskectomy at L4-5 on the right. Postoperatively, he reported marked improvement in both his back and his radicular leg pain. He was discharged home in good condition and was advised to avoid any strenuous exercise or heavy lifting. Outpatient reports from March 1992 through August 1992 show treatment for back pain, hypertension, and a dental condition. The lumbar back pain radiated to the right leg to the extent that at times the veteran was unable to get up without assistance. An x-ray report of the lumbar spine revealed marked narrowing with osteophyte formation of the disc space at the L5-S1 level, with evidence of previous laminectomy at the L4-L5 level. There was slight loss of lumbar lordosis. In November 1992, a decision by a Social Security Administration Administrative Law Judge found that, although the veteran had physically been able to perform light work up to June 1, 1992, despite "severe" impairments, since that date his residual functional capacity had been reduced to a restricted range of sedentary work. It also found that he was unable to perform his past work as a carpenter and construction worker, that he had a limited education, that he had no acquired work skills which were transferable to the skilled or semiskilled work activities of light and sedentary work, and that there were not a significant number of jobs in the national economy which he could perform. He was, therefore, determined to have been disabled since June 1, 1992, and was eligible for supplemental security income payments. In May 1993, the veteran testified before the Board at the RO that he had been unemployed for about six years due to his back disorder and high blood pressure. He reported that he was limited in what he could do because of constant pain in his lumbar spine and inability to perform physical activities. Although the disc surgery in 1991 had reduced the pain, it had not been entirely successful with symptoms returning a few weeks later. He continued to have trouble with his right leg and did not trust himself to drive except on necessary errands to the store. He said that he had to avoid any lifting and could not be on his feet or sit for long periods. His blood pressure had been difficult to control despite the medication that he had been taking. A VA disability evaluation examination in June 1993 was incomplete, but showed moderate hypertension, which needed to be controlled. He was advised to discontinue smoking and to lose weight. II. Analysis Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 1991). Each disability be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. See 38 C.F.R. §§ 4.1, 4.2 (1994); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). The veteran has been currently rated for his back disability under 38 C.F.R. § 4.71a, Diagnostic Code 5293, intervertebral disc syndrome. Under this code, if disability is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief, a 60 percent evaluation is warranted. A 40 percent evaluation may be assigned if impairment is severe, with recurring attacks, with intermittent relief. If the impairment is moderate, with recurring attacks, a 20 percent evaluation is warranted. The Board notes that the veteran is currently evaluated for his back disorder at 20 percent. In reviewing the evidence, however, the Board finds that his current disabilities comport more closely with a 60 percent evaluation. His medical records show that he has chronic and persistent pain with little relief from surgery. He also continues to experience neurological symptoms consisting principally of radiated pain in the right leg. Although it is not altogether clear from the veteran's hearing testimony whether he still had spasms in his right leg following the disc surgery, the Board notes that the Social Security Administration Administrative Law Judge determined that the veteran's symptoms had worsened considerably and that he was unable to engage in any type of work suitable to his education and experience. The veteran also provided credible testimony before the Board that he had to avoid lifting and could not perform activities requiring prolonged sitting or standing. Based on all of the evidence, the Board finds that the veteran's symptoms are consistent with a 60 percent rating for the lumbar spine disorder. Additionally, the veteran has been treated by a VA outpatient clinic with medication for current diastolic pressure readings ranging from 92 to 126. VA regulations at 38 C.F.R. § 4.104, Diagnostic Code 7101 (1994), provide that hypertensive vascular disease (essential arterial hypertension) warrants a 60 percent evaluation if diastolic pressure is predominantly 130 or more with severe symptoms. If diastolic pressure is predominantly 120 or more with moderately severe symptoms, the disorder is assigned a 40 percent evaluation. A 20 percent evaluation is warranted for diastolic pressure predominantly of 110 or more with definite symptoms, and a 10 percent ratings contemplated for a diastolic pressure predominantly 100 or more. The Board determines that the veteran's hypertension most closely approximated the criteria for a 20 percent rating. Pursuant to the Combined Ratings Table, 38 C.F.R. § 4.25 (1994), his combined non-service disability evaluation is thus determined to be 68 percent, which must be converted to the nearest degree divisible by 10. This conversion results in a combined 70 percent evaluation. Pursuant to Brown v. Derwinski, 2 Vet.App. 444, 446 (1992), permanent and total disability can be shown in one of two ways, by means of an objective standard or a subjective standard. If a veteran is unemployable as a result of disability reasonably certain to continue throughout his life or is suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, provided it is reasonably certain the disability will continue throughout his life, he shall be considered permanently and totally disabled. See 38 U.S.C.A. § 1502(a)(1) (West 1991); 38 C.F.R. § 4.15 (1994). This is the objective, or "average person," standard, which may be met if the veteran meets certain stated criteria or if he has a total combined schedular disability rating. See 38 C.F.R. § 4.25. The subjective standard, on the other hand, requires that the veteran have served during a period of war and that he be permanently and totally disabled from non-service-connected disability not the result of his willful misconduct. See 38 U.S.C.A. § 1521; 38 C.F.R. § 4.17(a). The latter regulation must be read in conjunction with 38 C.F.R. § 3.321(b)(2), which allows pension to be awarded in special situations when the criteria in § 4.17(a) are not met. See Talley v. Derwinski, 2 Vet.App. 282, 288 (1992). With reference to the above standards, the Board finds that the veteran does not meet the criteria for the objective or "average person" standard, as he has no total schedular disability and does not meet the specific disability criteria of the regulation. On the other hand, he does meet the subjective standard. Under 38 U.S.C.A. § 1521 (West 1991), a pension may be paid a veteran of a period of war who is permanently and totally disabled from non-service-connected disabilities not the result of willful misconduct. See Brown v. Derwinski, 2 Vet.App. 444, 446 1992. Thus, the veteran must first be shown to have served during a period of war. The Board notes that the Vietnam Era is statutorily recognized as encompassing the time frame from August 5, 1964, through May 7, 1975. 38 C.F.R. 3.2(f) (1994). The veteran's service from December 1967 to November 1969 satisfies this requirement and qualifying service is not at issue. Moreover, although the record shows instances of alcoholic intake on the part of the veteran, he has not been treated for alcoholism or been given a diagnosis of alcoholism. There is no evidence that his disabilities are the result of willful misconduct. Veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reasons of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. 38 C.F.R. § 4.17 (1994). In employing this regulation, it must first be determined that the percentage requirements of 38 C.F.R. § 4.16 are met. This regulation requires that if there is only one such disability, it shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more. The total of the ratable disabilities must result in a combined rating of 70 percent or more. Then, pursuant to 38 C.F.R. § 4.17, it must be established that the veteran's disabilities are likely to be permanent. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disabilities. See 38 C.F.R. § 4.17. The Board finds that the requirements for this regulation have been met; it is unnecessary to consider an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(2). The veteran has been found to have a combined evaluation of 70 percent. Further, his disabilities are likely to be permanent. After unsuccessful conservative measures, surgery in 1991 failed to alleviate his back symptoms. The Board further notes that the veteran has been unable to work in the construction trades since approximately September 1989 when he was admitted to a VA hospital for severe back pain. Not only is he also physically limited from performing sedentary work, but his limited educational background reasonably precludes him from obtaining that type of work. Consequently, the Board concluded that his disabilities are of such severity so as to permanently prevent him from engaging in all types of substantially gainful employment. ORDER A permanent and total disability rating for pension purposes is granted. CHARLES E. HOGEBOOM 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.