Citation Nr: 0003997 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-04 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran served on active duty from July 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) from a January 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claim of entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The veteran's low back disorder is productive of severe limitation of motion of the lumbar spine. 2. The veteran was born in June 1955, has a 12th grade education, and employment experience as a machine operator and a welder. 3. The veteran's disabilities are not productive of total disability and are not sufficient to preclude the average person from following a substantially gainful occupation. 4. 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 requirements for entitlement to a permanent and total disability rating for pension purposes have not been met. 38 U.S.C.A. §§ 1155, 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.342, 4.15, 4.16, 4.17 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the veteran has submitted a claim that is well grounded. A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board is also satisfied that its duty to assist has been met and that all reasonable efforts to develop the record have been made. In this regard, the RO denied the veteran's claim in January 1998. In December 1998, the Board remanded the claim for additional development. In its remand, the Board requested inter alia that the RO contact the veteran and obtain all offices through which he has received vocational training, followed by an attempt to obtain all identified records, to include records from the Ohio Bureau of Vocational Rehabilitation (Ohio BVR). In December 1998, the RO sent the veteran a letter requesting that he provide the information requested by the Board, as well as a list of all relevant medical treatment. In addition, the RO sent a request to the Ohio BVR to provide them with all of the veteran's medical records. However, there is no record of a response from either the veteran or Ohio BVR. In this regard, in July 1999, the RO sent the veteran a second letter and informed him that a reply had not been received from the Ohio BVR, that he may be required to pay certain Ohio BVR fees for copying, and that he should be sure to submit this evidence within 30 days. There is no record of a response from the veteran. Finally, although the RO scheduled the veteran for examinations in April 1999, the veteran failed to report. In May 1999, the RO notified the veteran that he could contact them within 30 days to request for rescheduled examinations. However, there is no record of a response. Based on the foregoing, the Board finds that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a); see also 38 C.F.R. § 3.655 (1999). A disability pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities not the result of his own willful misconduct. 38 U.S.C.A. § 1521(a). There are three alternative regulations upon which a finding of permanent and total disability for pension purposes may be based. The veteran may seek to establish, by utilizing the VA Schedule For Rating Disabilities, that he has a lifetime impairment which is sufficient to render it impossible for the "average person" to follow a substantially gainful occupation. 38 U.S.C.A. § 1502. This requires rating, and then combining each disability under the appropriate diagnostic code to determine whether the veteran holds a combined one-hundred percent schedular evaluation for pension purposes. If the veteran suffers the permanent loss of the use of both hands or both feet, or of one hand and one foot, or of the sight of both eyes, or becomes permanently helpless or permanently bedridden, he will be considered permanently and totally disabled. 38 C.F.R. § 4.15. Alternatively the veteran may establish permanent and total disability for pension purposes, absent a combined 100 percent schedular evaluation, by proving he has a lifetime impairment precluding him from securing and following substantially gainful employment. 38 U.S.C.A. § 1502; 38 C.F.R. § 4.17. However, if there is only one such disability, it must be ratable at 60 percent or more; and if there are two or more disabilities, there must be at least one disability rated at 40 percent or more and the combined rating must be 70 percent or more. If the veteran is considered permanently and totally disabled under these criteria, he is then awarded a 100 percent schedular evaluation for pension purposes. 38 C.F.R. §§ 4.16(a), 4.17. Even if the 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 or her disabilities, age, occupational background and other related factors. 38 C.F.R. §§ 3.321(b)(2); 4.17(b). The medical evidence of record shows that the veteran has been diagnosed with low back pain, degenerative joint disease (DJD) of the lumbar spine (at L5-S1), and degenerative disc disease (DDD) at L5-S1. In January 1998, the RO assigned a 20 percent evaluation for (nonservice-connected) "lumbar strain with dorsal scoliosis and DDD at L5-S1." Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Under DC 5292, a 40 percent disability rating is warranted for a severe limitation of motion of the lumbar spine. The 40 percent rating is the maximum rating provided for under DC 5292. In this case, a review of a VA clinical examination report, dated in October 1997, shows that the veteran reported that he took 375 milligrams of Naproxen on a daily basis (q. 12 hours). The report also noted that a September 1997 electromyograph (EMG) showed normal lower extremities with the exception of a prolonged reflex indicating possible old left S1 radiculopathy. On examination, he had lumbar flexion to 15 degrees, lumbar extension to 5 degrees, right and left lateral flexion of 10 degrees, and right and left lumbar rotation of 15 degrees, with all motion accompanied by guarding and complaints of pain. Gross muscle testing produced shaking, ratchy movement and give away. However, there was no muscle atrophy in the lower extremities. The examiner further noted that the veteran had exaggerated pain behavior, a "voluntarily abnormal" gait, and questionable cooperation during the examination. The examiner also noted the veteran's straight leg raise test results and his ability to function prior to, and during, the examination. The examiner stated that the veteran's guarding and pain complaints were inconsistent with his observed ability to function. The relevant impression was lumbar spine DDD at L5-S1. VA outpatient treatment reports, dated between 1997 and 1998, show treatment for back pain with diagnoses that included low back pain, and DJD and DDD of the lumbar spine, and use of a TENS (transcutaneous electrical nerve stimulation) unit. An EMG study of the spine, performed in September 1998, was normal. The veteran's most recent VA examination report shows that he has severe limitation in the range of motion in his back. However, the report contains significant evidence of guarding and exaggeration of pain, which the examiner stated were inconsistent with the veteran's observed ability to function. VA is required to take pain symptoms and weakness into account, to the extent they are supported by adequate pathology. 38 C.F.R. § 4.40; see also DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995). In this case, the Board has noted the evidence of exaggeration in the veteran's reported pain symptoms and his guarding. However, the radiographic evidence shows DJD and DDD of the lumbar spine (both of which were termed "severe" in August 1997 VA X-ray reports, as well as in a March 1998 VA outpatient treatment report), and the veteran has been diagnosed with chronic low back pain. He is also shown to have been using a TENS unit. The Board finds that when this evidence is combined with the noted limitation in the ranges of motion of the lumbar spine in the October 1997 VA examination report, that there is sufficient pathology to warrant a conclusion that the veteran has functional loss due to pain to warrant a rating of 40 percent. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The Board has considered the possibility of a rating in excess of 40 percent under other potentially applicable diagnostic codes. Under DC 5293, a 60 percent disability evaluation is warranted for pronounced intervertebral disc syndrome, 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, little intermittent relief. The Board notes that an EMG studies of the spine, performed in September 1998, were normal. Furthermore, the October 1997 VA examination report shows that the veteran's deep tendon reflexes were described as equal and intact, although diminished at the knees, at 1+/4+. Sensation and strength were also described as intact. There was no evidence of muscle atrophy. A March 1998 VA outpatient treatment report shows there was some evidence of muscle spasms. In light of the most recent findings, the Board must conclude that there is insufficient evidence of neurological findings appropriate to the site of the diseased disc, and that the preponderance of the evidence is against a 60 percent evaluation under DC 5293. With respect to the veteran's entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an evaluation in excess of 40 percent could be assigned on the basis of functional loss due to the veteran's subjective complaints of pain. See DeLuca, supra; VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). However, while the October 1997 VA examination report shows a limitation of motion in the lumbar spine, as well as pain on motion, the previously mentioned evidence does not show functional loss due to pain to warrant a rating in excess of 40 percent at this time. Briefly stated, the evidence shows that the most recent EMG study was normal, that there is evidence of exaggerated pain and guarding, that there is no muscle atrophy, strength is intact, and that reflexes are diminished but intact and equal. As for other Diagnostic Codes, in order to warrant an evaluation in excess of 40 percent under Diagnostic Codes 5286 or 5289, the veteran would have to demonstrate that his spine was ankylosed (complete bony fixation) at an unfavorable angle. However, there is no evidence of ankylosis of the lumbar spine. The Board notes that the diagnoses in the October 1997 VA examination report included status post right foot fracture, no residual, history of drug abuse, and possible myocardial infarction in the past. The veteran has also claimed that he has right drop foot, and VA outpatient treatment reports shows that he received treatment for pain in his right upper extremity and cervical region, and that he has been diagnosed with alcohol abuse. The Board finds that a rating for these disabilities is not warranted. With regard to alcohol and drug abuse, an August 1997 VA outpatient treatment report shows that the veteran received Axis I diagnoses of alcohol and cocaine dependence. The Board notes that, to the extent that the veteran's alcohol and substance abuse influence his psychiatric capacity, his alcohol and substance abuse are the result of his own willful misconduct, and are not ratable for pension purposes. See 38 U.S.C.A. § 1521 (West 1991); 38 C.F.R. § 3.301(c)(2)-(3) (1999). With regard to status post right foot fracture, and a possible heart condition, although the veteran reported having a heart attack in 1988, there is no record of treatment for this in the claims file. In addition, the veteran denied having any residuals or limitations from these disabilities during his October 1997 VA examination. In this regard, a VA electrocardiogram report, dated in September 1997, was normal, and VA outpatient treatment reports, dated in March and April of 1998, show that the veteran reported "complete relief of neck and shoulder symptoms," with full AROM (active range of motion), return of strength, and "pain no longer limiting." A VA outpatient treatment report, dated in March 1998, indicates that the veteran's case was closed due to lack of participation. An EMG study of the upper extremities, dated in November 1998, shows that it was an essentially normal study without evidence of active left cervical radiculopathy, and no evidence of generalized upper extremity peripheral neuropathy, brachial plexopathy or myopathy, although there was evidence of a "very mild" left radial sensory radiculopathy. Therefore, even assuming they exist, the record does not contain findings sufficient for rating any heart, cervical spine, shoulder or right foot conditions. Also of note, in December 1998 the Board remanded the claim in order to afford the veteran an examination so that his heart condition and status post right foot fracture could be evaluated. However, he failed to report for his scheduled examinations. With regard to the diagnosis of elevated blood glucose, although the veteran was diagnosed with elevated blood glucose during his October 1997 VA examination, this condition is not ratable as there is no objective medical evidence showing that this condition is productive of actual disability or is a manifestation of a specific disease or injury. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, although the veteran has asserted that he has right drop foot, he has not been diagnosed with this condition. Of particular note, the veteran's September 1997 EMG test results were normal, and a review of the VA examination report, dated in October 1997, shows that the examiner specifically stated that there was no muscle atrophy to support the claimed foot drop. It is also again pertinent to note that, pursuant to the Board REMAND in December 1998, VA pension examinations were scheduled in April 1999 to evaluate the current severity of the veteran's disabilities, but he failed to report for those evaluations. As the veteran does not have a disability rated at 60 percent or higher, or one disability rated at 40 percent with the combined rating at 70 percent, the veteran's disabilities do not meet the percentage requirements of 38 C.F.R. § 4.16(a), 4.17. The Board must therefore determine whether the veteran is entitled to pension benefits based on subjective criteria, including age, education and occupational history. 38 C.F.R. §§ 3.321, 4.15. In this regard, the Board notes that the veteran was born in June 1955. A review of his claim, received in October 1997, shows that he stated that he has not been employed since he became disabled in July 1997. He further indicated that he did not have to quit this job due to his physical condition, and that his last employment was as a machine operator, for 69 months. He reported that his highest level of education was 12th grade. Review of a VA mental disorders examination report, dated in November 1997, shows that he stated that he worked for about five years for a margarine manufacturer as a machine operator, and that this company went out of business. He further reported that he worked the first six months of 1997 at the Sawbrook Steel Company. A review of the transcript from the veteran's hearing, held in June 1998, shows that he testified that he had been fired at his last job (at the Sawbrook Steel Company) due to absenteeism because of his back disorder. He stated that he was not receiving Workers' Compensation as a result. He also stated that he was currently working at a temporary job as a laborer at a printing company through the Ohio Bureau of Vocational Rehabilitation. Finally, the veteran stated that he had dropfoot, that he had been issued a cane, and that he took pain medication on a daily basis. The veteran contends, in summary, that his low back disability, to include dropfoot, precludes employment. However, the most recent medical evidence does not support his assertion. Specifically, it is the Board's judgment that although the medical evidence shows functional loss in the lumbar spine equivalent to a severe limitation of motion, this disability does not preclude employment, and that there is no medical evidence of any other conditions that are productive of any appreciable industrial impairment. The veteran is not shown to require frequent hospitalization or an inordinate quantity of medication for his low back disability. The record does not contain a medical opinion that relates the veteran's employment status with his low back disorder or any other physical or mental condition. While his low back disability may limit his employment options, the medical evidence does not show that it precludes all kinds of substantially gainful employment, particularly given the veteran's age (44 years old), his high school education, and his testimony in June 1998 that he was currently employed with a printing company. Upon consideration of the veteran's disabilities, as well as his age, education, and occupational history, the Board is not persuaded that the veteran is permanently and totally disabled. Accordingly, the veteran is not entitled to a permanent and total disability rating for pension purposes and his claim for that benefit is denied. As a final matter, the Board points out that under 38 C.F.R. § 4.16(b) the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (1998). However, in this case service-connection is not currently in effect for any of the veteran's disabilities, and the Board is unable to find that a basis exists for favorable action on the pension claim under the provisions of 38 C.F.R. § 3.321(b)(2). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for a permanent and total disability rating for pension purposes must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a permanent and total disability rating for pension purposes is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals