Citation Nr: 0001445 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-10 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from April 1961 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio which denied the benefit sought on appeal. FINDINGS OF FACT 1. The veteran's claim is plausible and the VA has obtained all evidence sufficient to decide equitably this appeal. 2. The veteran's residuals of a superficial shrapnel wound, including a scar and his psychiatric disorder are respectively 0 percent disabling. 3. The combined evaluation for the veteran's nonservice- connected disabilities is 0 percent. 4. The veteran's disabilities do not constitute a total disability and are not sufficient to preclude the average person from following a substantially gainful occupation. 5. The veteran is 57 years old, has a 10th grade education and as of February 1999, the veteran was employed as a utility person at Host Marriott Airport. 6. The veteran is not unemployable by reason of his disabilities, age, education and occupational history. CONCLUSION OF LAW The requirements for entitlement to a permanent and total disability evaluation 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 The veteran contends that he is entitled to a permanent and total disability evaluation for pension purposes on an extra- schedular basis. He argues that he is unemployable due to disabilities caused by the residuals of superficial shrapnel wound in the epigastric area, including a scar and a psychiatric disorder. The initial question presented by this claim is whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted the veteran in the development of his claim. A "well-grounded" claim is one that is plausible, capable of substantiation or meritorious on its own. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board finds that viewing the veteran's contentions and evidence of record in the light most favorable to his claim, the veteran has presented a plausible claim, and that the evidence is sufficient to equitably decide his appeal. 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) (West 1991). There are three regulations upon which a finding of permanent and total disability for pension purposes may be based. First, pursuant to the VA Schedule for Rating Disabilities (rating schedule), a veteran may establish the presence of 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 each nonservice-connected disorder under the appropriate diagnostic code, and then combining the ratings to determine whether the veteran holds a combined 100 percent schedular evaluation for pension purposes. If a 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 for pension purposes. 38 C.F.R. § 4.15 (1999). Additionally, a veteran may be deemed permanently and totally disabled for pension purposes even in the absence of a 100 percent schedular evaluation, by establishing that 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. When establishing permanent and total disability in this manner, the Board must give full consideration to unusual physical or mental defects on a case by case basis. 38 C.F.R. § 4.15. However, if there is only one such disability, it must be ratable at 60 percent or more. If there are two or more disabilities, one of the disabilities must bring the combined rating to 70 percent or more. If the veteran is considered permanently and totally disabled under these criteria, he is awarded a 100 percent schedular evaluation for pension purposes. 38 C.F.R. §§ 4.16(a), 4.17. Finally, if the veteran's disability ratings fail to meet the aforementioned percentages, a permanent and total disability rating for pension purposes may be granted on an extra- schedular basis. To establish permanent and total disability on an extra-schedular basis the veteran must show that he 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). A. Residuals of superficial shrapnel wound in the epigastric area, including a scar A compensable rating for scars (other than burn scars or disfiguring scars of the head, face, or neck) requires that the scars be poorly nourished, with repeated ulceration; that they be tender and painful on objective demonstration; or that they produce limitation of function of the body part which they affect. See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, and 7805 (1999). A 0 percent evaluation is currently in effect for the veteran's residuals of a superficial shrapnel wound, including a scar, pursuant to Diagnostic Code (DC) 7805. Under this code, the disability is to be rated on limitation of function of the affected part. The veteran has not alleged any type of limitation of function of the epigastric area and the Board finds that the more applicable codes are DC 7803 and 7804. DC 7803 provides for a 10 percent evaluation for superficial scars, poorly nourished, with repeated ulceration. DC 7804 provides for a 10 percent evaluation for superficial scars that are tender and painful on objective demonstration. An August 1997 VA examination report does not reflect any findings regarding the veteran's scar. The examiner indicated that the general medical examination revealed no abnormality. VA treatment records dated December 1997 to January 1999 reveal that the veteran complained of epigastric pain sensations. In August 1998, the veteran's scar was described as well healed, non-tender with no masses. The veteran was afforded another VA examination in February 1999. During the examination, the veteran reported that on a rare occasion after eating, he experienced abdominal, or epigastric pain. The veteran denied that this pain was related to his scar. After a physical examination, the examiner remarked that no definite scar was found in the epigastric area except for a hyperpigmented skin area measuring 2/3 by 2/3 inches. The skin area was nontender and superficial. The veteran was diagnosed with the presence of a benign scar, hyperpigmented skin on the epigastric area. No abdominal pain or tenderness or abnormality was found on examination. The examiner indicated in an addendum to the report that the veteran's occasional epigastric or abdominal pain is not due to the shell fragment wound scar in the epigastric area. The examiner also noted in the report that the veteran was employed as a utility person at Host Marriott Airport. The examiner indicated that no disability was found on the examination. The most recent examination of record shows that the veteran's scar is nontender, and superficial. There is no evidence that the veteran's scar is poorly nourished with repeated ulceration, or that the scar is tender or painful. As the scar has not been shown to be symptomatic or to result in any functional impairment, the Board finds that there is no basis for the assignment of a compensable evaluation under any potentially applicable diagnostic code. B. Psychiatric disorder A noncompensable evaluation is currently in effect for a nonservice-connected psychiatric disorder pursuant to DC 9411. A 10 percent evaluation under DC 9411 is warranted where there is evidence of 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 evaluation is warranted with the presence of 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 applicable where there is evidence of 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 evaluation is assignable with evidence of 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is 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. VA inpatient records from October 1989 to January 1990 reflect that the veteran was hospitalized and diagnosed with substance abuse. He was given a GAF of 55. An August 1997 VA examination report reflects that the veteran had a normal general medical examination. The veteran denied having any type of psychiatric problem, although he indicated that he had been seeing a psychiatrist. The examiner noted that the veteran's behavior was appropriate and that he was competent. The veteran was diagnosed with episodic cocaine abuse and given a GAF of 75. A diagnosis of a psychiatric disorder was not made. VA treatment records dated December 1997 to January 1999 show that in December 1997, the veteran was diagnosed with cocaine and alcohol dependence (sustained full remission) with physiological dependence. The veteran was also diagnosed with an antisocial personality disorder with paranoid and schizoid features. He was assigned a GAF of 50. A February 1999 VA examination report reflects that the veteran's behavior was appropriate and that he was competent. The examiner noted that no history of mental illness was given. The veteran was not shown to have a psychiatric disorder and the examiner noted that no disability was found on examination. According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994 (DSM-IV), which the VA has adopted at 38 C.F.R. §§ 4.125, 4.130, a GAF score of 75 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Further, a GAF score of 51 to 55 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The veteran has not been shown to have a psychiatric disorder resulting in occupational and social impairment. Additionally, there is no evidence that the veteran currently experiences transient symptoms of a psychiatric disorder which decrease his work efficiency and ability to perform occupational tasks during periods of significant stress, or that he is currently controlling symptoms of a psychiatric disorder with continuous medication. While the veteran's most recent GAF score is reflective of serious to moderate symptomatology, the most recent evidence of record shows that the veteran is in fact employed. In the absence of evidence demonstrating that the veteran has been diagnosed with a psychiatric disorder and that he is disabled by associated symptomatology, the Board finds that the veteran is not entitled to a compensable evaluation for a psychiatric disorder. The ratings in effect for the veteran's disabilities comprise a 0 percent combined disability evaluation in accordance with the provisions of 38 C.F.R. § 4.25. This 0 percent rating represents the average wage-earning impairment caused by the veteran's disabilities. As previously discussed, entitlement to pension benefits may be found if the veteran has a lifetime impairment which would render it impossible for an average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15. In this case, none of the veteran's disabilities constitute a permanent and total disability. Moreover, a permanent and total disability rating is not warranted under applicable schedular criteria. The veteran's disabilities are not representative of total disability as contemplated by 38 C.F.R. §§ 4.16, 4.17. Rather, the veteran's combined ratings have been appropriately designated as 0 percent disabling. C. Entitlement to a Total Disability Rating Based on Extra- Schedular Criteria As the veteran's disabilities collectively do not meet the percentage requirements of 38 C.F.R. § 4.16, the Board must 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 is 57 years old, has a 10th grade education and as of February 1999, he was employed as a utility person at Host Marriott Airport. The veteran claims that his disabilities collectively inhibit his ability to maintain gainful employment. Specifically, the veteran asserts that his psychiatric disorder prevents him from working and that his shrapnel wound also bothers him. While the Board acknowledges that the veteran may have functional limitations, the veteran has not submitted any records to substantiate his claim that he is unable to maintain gainful employment as a result of his disabilities. Upon consideration of the combined effect 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. An allowance of pension benefits based on extra-schedular criteria is thus not warranted. As there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim, he is not entitled to the benefit of the doubt in the resolution of his claim. Based on the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to a permanent and total disability rating for pension purposes. ORDER A permanent and total disability evaluation for pension purposes is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals