BVA9504156 DOCKET NO. 93-11 119 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. D. Hayden, Counsel INTRODUCTION The veteran performed active duty from May 1965 to May 1968. This matter has come before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1991 decision by the Department of Veterans Affairs (VA), North Little Rock, Arkansas, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL Essentially, it is asserted that the veteran is unemployable because of permanent disabilities. 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 veteran's application for a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The evidence necessary for an equitable disposition of the appealed issue has been obtained by the RO and is of record. 2. The veteran, who was born in November 1946, has more than ninety (90) consecutive days of service during the Vietnam Era. 3. He has completed high school and has approximately 1 1/2 years of college. 4. His military occupational specialty was missile crewman; there is no related civilian occupation given. 5. He has civilian occupational experience manufacturing dry- wall panels and as a laborer. 6. The veteran's disabilities assigned by the RO are: Chronic lumbosacral strain, rated 20 percent disabling; hypertension, rated 10 percent disabling; schizoid personality disorder, bronchitis, hemorrhoids, pes planus, residuals of a sprain of the right ankle, a left ankle disorder, a left hip disorder, a left knee disorder, residuals of a benign tumor from the right lung, septic arthritis of the right knee and burn scars, each of which is rated zero percent disabling. In addition, service connection is in effect for residuals of a fracture of the mandible which is also rated zero percent disabling. He has spurring in the lumbar spine with limitation of motion. 7. The veteran's combined disabilities are not totally disabling and would not render it impossible for the average person to follow a substantially gainful occupation. 8. The veteran's disabilities preclude him from engaging in a substantially gainful occupation. CONCLUSION OF LAW The veteran is less than 100 percent disabled but is unemployable by reason of permanent disabilities. 38 U.S.C.A. §§ 101(11)(12)(29), 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.3(a)(ii), 3.321, 3.340, 3.342, 4.15, 4.16, 4.17, 4.20, 4.25, 4.31, 4.71a, 4.97, 4.104, 4.118, 4.130, 4.132, 4.150, Diagnostic Codes 5003, 5250, 5257, 5271, 5276, 5292, 5295, 6600, 6820, 7101, 7336, 7805, 9904 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has submitted a well-grounded claim. The VA has examined him and has evaluated him during a period of sheltered employment. The VA has fulfilled its duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a). A veteran who has the requisite service and who is permanently and totally disabled, from disorders which are not the result of his or her own willful misconduct, may be paid disability pension. 38 U.S.C.A. § 1521. The appellant has qualifying service, having served for more than ninety (90) days during the Vietnam Era. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.3(a)(ii). All veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. When there is a single disability ratable at 60 percent or more or two or more disabilities, with at least one disability ratable at 40 percent or more, and sufficient additional disability(ies) to bring the combined rating to 70 percent or more and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran was found to be unable to secure and follow substantially gainful employment by reason of such disability(ies). Marginal employment, for example, as a self-employed farmer, while employed in his or her own business, or at odd jobs or while employed at half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment is due to disability. Marginal employment may also be held to exist, on a facts-found basis, in situations where employment is in a protected environment such as a family business or sheltered workshop even if earned annual income exceeds the poverty threshold. Claims of veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable will be considered under 38 C.F.R. §§ 3.321(b)(2), 4.16(a), 4.17. To establish permanent and total disability, the veteran must be unemployable as a result of disability(ies) which are not the result of his or her own willful misconduct which can reasonably be expected to last throughout the remainder of his life or he must have disability(ies) which would render it impossible for an average person with the same disability(ies) to obtain and retain substantially gainful employment and it must be reasonably certain that such disability(ies) will remain throughout his life. Brown v. Derwinski, 2 Vet.App. 444, 446 (1992). This tandem combination of an objective (average person) and subjective (individual case) standard implements 38 U.S.C.A. §§ 1502(a)(1) and 1521. Talley v. Derwinski, 2 Vet.App. 282, 284 (1992). Permanent and total disability pension ratings will be authorized for congenital, developmental, hereditary or familial conditions, provided the other requirements for entitlement are met. 38 C.F.R. § 3.342. The objective standard of review of an average impairment in earning capacity is an "[I]mpairment 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. 38 C.F.R. § 4.15. If the veteran meets this objective standard, entitlement to pension is established. Talley, at 285 and 287-288. Initially, the Board must ascertain that all disabilities which are likely to be permanent have been considered and that the currently assigned evaluations are correct. 38 C.F.R. §§ 3.321(b)(2), 4.16(a), 4.17. Disability evaluations are intended to measure the average impairment of earning capacity attributable to recognized disabilities. They are primarily established by comparing objective examination findings with the criteria set forth in the Schedule for Rating Disabilities (hereinafter Schedule). 38 C.F.R. § 4.1 (1993). Lumbosacral strain is rated 40 percent disabling when severe; with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. It is rated 20 percent disabling with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. It is rated 10 percent disabling with characteristic pain on motion. It is rated 0 percent disabling with slight subjective symptoms only. 38 C.F.R. § 4.71a, Diagnostic Code 5295. Arthritis is rated on the basis of limitation of the affected joint(s). 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion of the lumbar spine is rated 40 percent disabling when severe, 20 percent disabling when moderate and 10 percent disabling when slight. 38 C.F.R. § 4.71a, Diagnostic Code 5292. In every instance where the minimum schedular evaluation requires residuals and the Schedule does not provide a zero percent evaluation, a zero percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. Hypertensive vascular disease (essential arterial hypertension) is rated 60 percent disabling when diastolic pressure is predominantly 130 or more and there are severe symptoms. It is rated 40 percent disabling when diastolic pressure is predominantly 120 or more and there are moderately severe symptoms. It is rated 20 percent disabling when diastolic pressure is predominantly 110 or more with definite symptoms. It is rated 10 percent disabling when diastolic pressure is predominantly 100 or more. When continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent will be assigned. 38 C.F.R. § 4.104, Diagnostic Code 7101. Third degree burn scars exceeding 1 square foot (0.1 m.) in area are rated 40 percent disabling. In area or areas exceeding one-half square foot (0.05 m), they are rated 30 percent disabling. In area or areas exceeding 12 square inches (77.4 cm.) they are rated 20 percent disabling. In area or areas exceeding 6 square inches (38.7 cm.) they are rated 20 percent disabling. Actual third degree residual involvement is required. Scars on different extremities are separately rated and combined. 38 C.F.R. § 4.118, Diagnostic Code 7801. Second degree burn scars approximating 1 square foot (0.1 m.) are rated 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802. Superficial scars which are poorly nourished, with repeated ulceration are rated 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7803. Superficial scars which are tender and painful on objective demonstration are rated 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars are rated on limitation of function of part affected.. 38 C.F.R. § 4.118, Diagnostic Code 7805. Chronic bronchitis which is pronounced; with copious productive cough and dyspnea at rest; severe degree of chronic airway obstruction; shown by pulmonary function testing with symptoms of associated severe emphysema or cyanosis and findings of right sided heart involvement is rated 100 percent disabling. When severe; with severe productive cough and dyspnea on slight exertion and pulmonary function tests indicative of severe ventilatory impairment, it is rated 60 percent disabling. When moderately severe; persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout chest, beginning chronic airway obstruction, it is rated 30 percent disabling. When moderate; with considerable night or morning cough, slight dyspnea on exercise, scattered bilateral rales, it is rated 10 percent disabling. When mild; slight cough, no dyspnea, few rales, it is rated 0 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6600. Motion of the temporomandibular articulation from 0 to 10 mm. is rated 40 percent disabling; motion from 11 to 20 mm is rated 30 percent disabling motion from 21 to 30 mm is rated 20 percent disabling and motion from 31 to 40 mm is rated 0 percent disabling. 38 C.F.R. § 4.150, Diagnostic Code 9905. During a January 1980 VA examination, it was recorded that the veteran had been employed manufacturing dry-wall panels but had to quit three months before, because of back pain; it was not recorded how long he had been employed. X-ray studies found scoliosis and spurring in the lumbar spine; clinical examination of the musculoskeletal system was normal. Examination found chronic sinusitis, polyps and bronchitis. A dental examination found that the jaw movements appeared normal. The vertical opening between the incisal edges of the anterior teeth was 45 millimeters(mm); an opening of more than 40 mm is zero percent disabling. 38 C.F.R. §§ 4.31, 4.150, Diagnostic Code 9905 (1994). A July 1991 VA examination report shows that the veteran was 5 feet, 5 inches tall and weighed 126 pounds. He had many missing teeth and burn and knife wound scars on both shoulders. His joints, gait and sensory system were described as abnormal. He had difficulty following directions and remembering instructions. He was referred to a VA vocational rehabilitation specialist where it was recorded that he had approximately 13 1/2 years' education. He was seen by the VA counseling psychologist in mid-July 1991. At that time, it was recorded that he had held various labor-level jobs since service, none for longer than one year. He was unemployed at the time of the interview. He had been diagnosed as having schizophrenia and a history of substance abuse. During the interview, he reported that the longest job he had held during the past 10 years was for one week doing construction work. The VA vocational rehabilitation specialist was consulted about the veteran's Incentive Therapy (IT) job performance; it was his opinion that competitive employment or vocational rehabilitation was not feasible for the veteran. It was felt that the veteran might be able to perform adequately in the sheltered workshop employment setting in which the environment was supportive and understanding of persons with mental health problems. The veteran was admitted to the VA Homeless Chronically Mentally Ill (HCMI) program in late July 1991. A July 1991 VA social work assessment and plan shows diagnoses of schizophrenia and alcohol abuse in remission. His job history showed short periods of employment averaging one week; his longest period of employment was in 1977 when he worked as a laborer for seven months. Following an August 1991 VA psychiatric examination, the diagnoses were schizoid personality disorder and alcohol abuse, present course uncertain. An August 1991 VA dental examination found that the veteran's mandible (jaw) had normal lateral excursions and 42 mm vertical excursion. There were several replaceable missing teeth. Both dental disorders are zero percent disabling. 38 C.F.R. §§ 4.31, 4.150, Diagnostic Codes 9905, 9913. An August 1991 VA physical examination found that the veteran's back had 60 percent of the average normal range of flexion and 75 percent of the average normal range of motion in the other planes. There was some back pain on straight-leg raising at 90 degrees. Reflexes were intact and no sensory deficits were noted. These findings do not indicate more than moderate limitation of motion and no muscle spasm or loss of lateral spine motion. The degree of the burn scars was not specified. The scars were not tender and there was no loss of function in the involved areas. There was a scar where a benign tumor had been removed from the right lung. Breath sounds were clear and distinct without rales, rhonchi or wheezing. Septic arthritis of the right knee had resolved. Hypertension was described as "controlled". He had chronic bronchitis and lumbosacral strain. A November 1991 VA evaluation report by the VA-HCMI Outreach Social Worker shows that the veteran was very guarded about any disclosures to acquaintances or to staff. He experienced nervousness in social situations, was generally reserved and would generally disclose something only when cued or prompted. He displayed some impairment in speech and, at times, inappropriate verbal content. He reported that he had difficulty in achieving and maintaining close interpersonal relationships. It was noted the veteran wished to work but was unable to maintain a long-term work history because of his psychiatric status. He had maintained sobriety during his VA contract placement with the HCMI program. He was enrolled in a counseling psychology program where he functioned in a marginal capacity. Although his effort was good, he required ongoing and structural supervision in tasks which were repetitive and did not require decision making. He could not lift more than 10 pounds. The "Counseling Psychology Service" had deemed the veteran unemployable because of impaired emotional health. It was recorded that his longest period of employment had been in 1977 when he worked for seven months as a laborer. A February 1992 VA note shows that the veteran's performance in IT had consistently been at a level which required continued supervision and support. He had performed adequately in a sheltered setting but could not meet the demands of a competitive work environment. An examiner who had performed psychological testing concurred that the veteran was disabled and unemployable although testing only supported a diagnosis of schizoid personality. One test performed in February 1992 indicated that the veteran was not malingering. He would put forth his best effort but could not maintain employment in the competitive work world. In April 1992 it was noted that the veteran had been followed by the VA HCMI program since June 1991. The VA HCMI staff reported that the veteran continued to display marked impairment of functioning and remained extremely guarded and socially isolated. He could only function marginally in a highly structured work or living arrangement and was unable to use good judgment or make independent decisions. He required intensive supervision at tasks that did not require decision making. He continued to demonstrate grandiosity regarding his vocational abilities; he believed that he was much more vocationally competent that what he actually demonstrated. The prognosis for improvement was poor. The veteran does not appear to have significant physical disabilities or a psychiatric disease. With the exception of the schizoid personality disorder which will be discussed below, the ratings assigned by the RO appear adequate. 38 C.F.R. §§ 4.31, 4.71a, 4.97, 4.104, 4.118, 4.130, 4.132, 4.150, Diagnostic Codes 5250, 5257, 5271, 5276, 5295, 6600, 6820, 7101, 7336, 7805, 9904, 9913. The clinical manifestations of the veteran's combined disabilities are not totally disabling and would not render it impossible for the average person to follow a substantially gainful occupation. The reported diagnosis of schizophrenia was not confirmed by the August 1991 VA psychiatric examination which found schizoid personality disorder. However, VA professional personnel who have evaluated him have concluded that he can only function in a highly structured setting with intense supervision such as exists in a sheltered workshop and that he is not able to function in a competitive employment situation requiring initiative, minimal supervision and the ability to make decisions. Although the veteran apparently had a problem with alcohol abuse in the past, he had maintained sobriety during his VA contract placement with the HCMI program. It appears that is no longer a problem and there is no indication that his current problems are the result of alcohol abuse or other willful misconduct. 38 C.F.R. § 3.301(b) (c)(2) (1994). Since he does not appear to be able to function in anything but a sheltered environment, he is totally disabled as that term is used with regard to VA disability pension. 38 U.S.C.A. § 1521. Although the records cover a relatively short period of time, it does not appear that the veteran has had any significant employment since he left service and the opinion of those who have evaluated him intensely during the period in question was that there was a poor prognosis for recovery. Accordingly, it seems likely that his impairment will last throughout the remainder of his life. ORDER A permanent and total disability rating for pension purposes is granted. RENÉE M. PELLETIER 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.