Citation Nr: 0002335 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 93-10 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded this issue in October 1998 for further development. The RO, after readjudicating the claim based on the requested development continued its denial of the veteran's claim. The case has returned to the Board for appellate review. In compliance with the Board's remand, the RO attempted to contact the veteran in November 1998 and January 1999 with respect to his request for a hearing before a hearing officer at the RO. The RO also informed the veteran that he could submit additional evidence. The veteran, however, has not responded to the RO's correspondence. Therefore, the Board finds that no further development is in order. FINDINGS OF FACT 1. The ratings for the veteran's permanent non-service connected disabilities are: a 30 percent rating for an anxiety disorder with a history of a personality disorder, passive aggressive features and drug and alcohol dependence, alleged as post-traumatic stress disorder (PTSD); a 20 percent rating for chronic low back pain with mild degenerative changes; separate 10 percent ratings for hypertension; status post repair of the left knee posterior cruciate ligament and medial capsule, with degenerative joint disease and chronic pain; bilateral tinea pedis with onychomycosis; and status post first right metacarpal bone fracture and chronic hand pain with degenerative changes. Zero percent ratings have been assigned for a skin disorder of the beard, and pulmonary tuberculosis by history. The veteran is service connected for dermatophytosis of the thighs evaluated as zero percent disabling. The veteran's combined non-service connected disability rating for pension purposes is 60 percent. 2. The veteran was born in 1944; has a high school education and occupational experience working as a truck driver; and he is presently employed full-time as a receiver at a lawn furniture company. 3. The veteran's disabilities are not productive of total disability and are not sufficient to render the average person unable to secure substantially gainful employment. 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 a permanent and total rating for pension purposes have not been met. 38 U.S.C.A. §§ 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 Medical evidence provided by the Social Security Administration reveals that the veteran underwent a repair of the left posterior and medial cruciate ligaments in 1979. Extensive testing in July 1990 was negative for pulmonary tuberculosis and carcinoma of the lung. In February 1991, he complained of headaches. He reported a cough in May 1992. The lungs were clear to auscultation with a rare forced expiratory wheeze. He was treated for viral pharyngitis in August 1992. Treatment records were remarkable for complaints of chronic low back pain throughout. An Administrative Law Judge rendered a favorable decision in August 1992. VA treatment records indicate that the veteran was hospitalized in July 1990 for complaints of a non-productive cough, night sweats, fatigue, and lethargy. The general medical examination was essentially unremarkable except for the respiratory complaints. Physical examination revealed that the lungs were clear. Sputum for the acid-fast bacilli was negative, and bronchoscopy was negative for any bronchial obstruction. Testing was negative for fungus or malignant cells. An x-ray study revealed an upper left lobe lesion. The VA prescribed medication for pulmonary tuberculosis. An August 1990 VA outpatient record showed that he was still taking the medicine. In October 1990, an x-ray study revealed no cavity but just some streak marks. The lungs were clear at that time. He continued with the medication. In December 1990, the lungs were clear and the remainder of the physical examination was unremarkable. He complained of a non-productive cough, however, testing was negative for tuberculosis. A pulmonary function test was within normal limits. In February 1991, the RO denied entitlement to non-service connected pension. In December 1991, the veteran timely filed a substantive appeal. He cited left knee swelling with an inability to ambulate; respiratory distress with an inability to climb stairs; skin rashes on the lower half of his body; and back trouble. An October 1991 psychological evaluation by Kenneth R. Felker, Ph.D., revealed the appellant's primary disorder to be alcohol dependence. He was also observed to function with borderline intelligence. On VA examination in January 1992, the veteran was noted to show some scaling and hyperkeratosis of the feet. The examiner noted a history of tuberculosis, however, there were no clinical findings. A chest x-ray study was normal with no definite evidence of scarring or infiltrate. He complained of back pain, a torn ligament in the left knee, and an old fractured right thumb. An x-ray study of the right hand was normal. X-ray studies of the lumbar spine and left knee revealed arthritis. The diagnoses were dermatophytosis, bilateral tinea pedis, and onychomyosis of the toenails, status post inactive tuberculosis with no radiological evidence of any lesion, and labile hypertension. In February 1992, VAMC admitted the veteran for treatment due to alcohol and marijuana abuse. Treatment was provided for tinea pedis and low back pain. In March 1992, the veteran appeared before a hearing officer at the RO. He testified that he had a high school education. He also had some computer training and he went to truck driving school. His profession was truck driver. At the time of the hearing, he had been a truck driver for four years. He had to leave his last truck-driving job due to his back trouble. He experienced increasing back pain and leg weakness. He reported that several doctors had diagnosed him with disc problems of the lower back. He described intermittent back pain, although sometimes it would force him to stay in bed for up to three days. His neck, wrists and hands also reportedly hurt. He participated in physical therapy three times a week, and he exercised twice a day at his house. In 1987 he underwent left knee surgery, however, he continued to experience pain in the joint. He would use a cane because occasionally the left knee would give out on him. When the knee would swell, medical personnel would drain it, and as a result he would hobble. He did not like to walk, and he could no longer drive due to his physical problems. He took public transportation. In the last year potential employers rejected his applications due to his physical problems. He reported that the Social Security Administration had denied him benefits. He received his medical treatment from VA. His lungs no longer bothered him like they used to do. The veteran had a VA psychiatric examination in March 1992. He reported being anxious and having headaches, insomnia, memory problems, nightmares, flashbacks and hallucinations. He also admitted to a history of treatment for substance abuse. The diagnosis was chronic, delayed post-traumatic stress disorder (PTSD). According to VA treatment records, he was hospitalized at Brecksville Division from June to July 1992, for treatment of continuous drug and alcohol dependence. He attended an outpatient program from July to September 1992, and he participated in the inpatient program from September to December 1992. According to a December 1992 VA PTSD examination report, the veteran indicated that he could not work due to his back, and that he received Social Security benefits. On examination, the veteran appeared unconcerned about his drinking problem. Occasionally he slept well, but other times he did not. The examiner noted that there was no way to confirm his reported stressors. He showed an infantile, immature attitude without constriction of interest or lack of emotional reaction. He did not appear depressed and he was well oriented. He correctly answered mathematical equations and he knew the recent presidents of the United States. The examiner found him competent to manage his finances. The examiner diagnosed alcohol addiction that was in remission since June 1992; a personality disorder with inadequate, immature and passive- aggressive elements; a history of back and dermatological problems; and a global assessment of functioning score (GAF) estimated at 65 to 70. The examiner opined that any future GAF would depend on his ability to control his substance abuse problem. Also in December 1992, VA examined the veteran's skin, and back conditions. He complained of scaling and itching feet. Physical examination and color photographs revealed scaling on the plantar aspect bilaterally and hyperkeratotic rounded lesions on the plantar aspect bilaterally. The examiner observed no nervous manifestations. The physical examination of the spine showed forward flexion to 70 degrees; extension and rotation to 20 degrees bilaterally. Reflexes were 1 to 2+ and equal. The diagnoses were dermatophytosis (tinea pedis bilaterally and onychomycosis of the toenails) and lumbosacral strain. According to an August 1997 VA examination report, the veteran had been employed in utility work since February 1997. Any lost time was due to doctor visits. He reported chronic low back and left knee pain. Hypertension was controlled with medication. He participated in a continuing substance abuse treatment program. On examination, a fungal infection was noted on the toenails of both feet, and some pitted scars were seen in the beard area. Early cataracts were noted in both eyes. Extraocular movements were intact. Corrected visual acuity was 20/40 in the right eye and 20/30 in the left eye. Blood pressure readings were within normal limits sitting, recumbent, and standing. His lungs were clear to percussion and auscultation. A chest x-ray examination was normal. The lumbar spine was not tender or deformed. Range of motion of the lumbar spine was forward flexion to 82 degrees, backward extension to 14 degrees, bilateral lateral flexion to 27 degrees, and bilateral rotation to 28 degrees. An x-ray examination revealed mild degenerative changes at L4-5 and L5-S1, with narrowing between L5-S1. An x-ray examination of the right hand revealed an old fracture with slight deformity and degenerative changes at the base of the first metacarpal bone. Range of motion of that bone was flexion to 78 degrees, extension to zero degrees, and function was normal. Range of motion of the left knee was flexion to 119 degrees and extension to one degree. An x-ray examination was normal. Straight leg raising and Achilles reflexes were normal. Patella reflexes on the right were 1+ and on the left 2+. Laboratory findings were unremarkable. The diagnoses were chronic low back pain with mild degenerative changes; chronic left knee pain, status post injury, status post surgery; chronic right hand pain, status post remote first metacarpal bone fracture with degenerative changes at the bone base; essential hypertension; onychomycosis of the toenails; and folliculitis in the beard area. According to a February 1999 VA orthopedic examination report, the veteran worked full-time at "Metal Craft," a lawn furniture manufacturer, as a receiver. The veteran complained of pain in the low back that had been gradually increasing. However, he said that the back hindered activities only when he put too much stress on it. A CT scan from the 1990s of the lumbar spine showed no disk herniation and no spinal stenosis. There was no mention of arthritis except at L4-Sl. A bone scan dated October 1990 was normal. There was no history of paralysis of the lower extremities. On examination, his standing posture was normal. There was mild lumbar curve reversal. Renal angle sites were not tender. Forward flexion was to 90 degrees, and backward extension and lateral bending to 15 degrees, bilaterally. Rotation was easily possible to 30 degrees bilaterally. He complained of low back pain, but it was more like a myofascial pain, or it could be secondary to the underlying mild spinal arthritic changes, but there was no pain radiation. Straight leg raising test was negative. X-ray findings of the lumbar spine revealed degenerative disk disease at L4-S1. The examiner diagnosed chronic recurrent low back pain, dominantly mechanical type; and myofascial pain syndrome with accompanying mild degenerative changes L4- S1. Functional impairment because of pain and also the restricted range of motion, moderate to moderately significant. The February 1999 VA examination report also revealed that the veteran's blood pressure was 160/98 and 158/97. A physician was following him for his blood pressure. The veteran was also noted to have suffered a fracture of the base of the first metacarpal on the right in the 1960s. Open reduction was performed at that time. Later the hardware was removed. Now, although he can move it, it hurts whenever pressure or anything was applied like a sudden need to grasp or pull something, or if somebody hits it or just touches that area it hurts him. X-ray findings of the hand revealed an old fracture at the base of the first metacarpal with arthritic changes. The examiner diagnosed residuals of a fractured right, first metacarpal that was healed with arthritic changes at the base of the first metacarpal bone, with moderate functional impairment. The examiner stated the veteran had good strength in both lower extremities. His truncal balance was adequate, but his low back did get fatigued with too much bending, standing, and putting strain on his back because of arthritis in the back. In the upper extremity, there was a painful motion at the base of the thumb at the junction of the carpometacarpal joint area secondary to an old fracture. There was no incoordination, but the hand fatigued with use. There was no evidence of any joint flare-ups of any arthritis or any other kind of inflammation disorders. According to a VA eye examination dated February 1999, the veteran gave a history of seeing spots. He denied any problems except with reading. His bilateral corrected visual acuity was 20/20 for both near and far. The examiner stated that the veteran had large cup disk ratios and was told in the past that these may be glaucoma. Apparently that was what he was referring to as spots before his eyes. Everything else was negative. The Humphrey visual fields ruled out glaucoma. The examiner diagnosed that he had normal eyes. A February 1999 VA psychiatric examination reiterated the veteran's prior medical records indicated a history of alcohol addiction in 1992 and personality disorder with passive/aggressive features. He had a long history of drug and alcohol use. He was presently not under any psychiatrist or psychologists care. The examiner stated that the veteran worked full-time and had been on the job for two years. The veteran reported some anxiety on the job, and sometimes he would go overboard and lose his temper. He had no suicidal or homicidal ideations, hypervigilance or exaggerated startle response. The veteran was oriented times four, and his speech was at a regular rate and rhythm. His thought content was negative for suicidal or homicidal ideations, his thought process was coherent, and insight and judgment were fair. The examiner diagnosed alcohol dependence in remission; an anxiety disorder, not otherwise specified; a history of a personality disorder with passive/aggressive features. The examiner assigned a GAF of 60. In summary, the examiner stated that the veteran was able to manage his financial affairs, and he was able to obtain substantial gainful employment, as evidenced by the fact that he was working now. Analysis The Board finds that the veteran's claim for nonservice- connected pension is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The veteran has presented a claim that is not inherently implausible. A pension is available to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to non-service connected disabilities which are not the result of his own willful misconduct. 38 U.S.C.A. § 1521(a); 38 C.F.R. § 3.342(a). The Court has held that VA adjudicators, when considering a claim for entitlement to non-service-connected pension benefits, must consider whether the veteran is unemployable as a result of a lifetime disability, i.e., an "objective" standard, or if the veteran is not unemployable, whether there exists a lifetime disability which would render it impossible for an average person to follow a substantially gainful occupation, i.e., a "subjective" standard. 38 U.S.C.A. §§ 1502(a)(1), 1521(a); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, and 4.17. See also Talley v. Derwinski, 2 Vet. App. 282 (1992). Permanent and total disability for pension purposes is deemed to be present if a veteran's disabilities are productive of a total schedular rating under the "average person" standard of pension eligibility, or the disability ratings meet the schedular requirements for the assignment of a total disability rating under the "unemployability" standard of pension eligibility. 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 4.15, 4.16, 4.17. A permanent and total disability rating for pension purposes may also be granted on an extraschedular basis if the disability requirements based on the percentage standards of the rating schedule are not met, but the veteran is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors. 38 C.F.R. § 3.321(b)(2). The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment 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. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule. 38 C.F.R. § 4.15. 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. For the purpose of pension, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. 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 disability. 38 C.F.R. § 4.17. In denying entitlement to nonservice-connected pension benefits the RO assigned a 30 percent rating for an anxiety disorder with a history of a personality disorder with passive aggressive features and drug and alcohol dependence under 38 C.F.R. § 4.130 (1996) and 38 C.F.R. § 4.132 (1999); a 20 percent rating for chronic low back pain with mild degenerative changes under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999); separate 10 percent ratings for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101 (1999), chronic left knee pain with status post repair of the posterior cruciate ligament and medial capsule under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999), and chronic right hand pain under 38 C.F.R. § 4.71a, Diagnostic Code 5225 (1999); and zero percent ratings for a skin disorder of the beard under 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999), bilateral tinea pedis with onychomycosis under 38 C.F.R. § 4.118, Diagnostic Code 7806, pulmonary tuberculosis by history under 38 C.F.R. § 4.97, Diagnostic Code 6731 (1996); 38 C.F.R. § 4.97, Diagnostic Code 6731 (1999), and a bilateral eye disorder under 38 C.F.R. § 4.84a (1999). The veteran is service connected for dermatophytosis of the thighs evaluated as zero percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7813 (1999). Anxiety disorder with a history of a personality disorder with passive aggressive features and drug and alcohol dependence, alleged as PTSD The veteran has been diagnosed with various nonservice- connected psychiatric conditions. For rating purposes, the evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. 38 C.F.R. § 4.14 (1999). As a result, given that the same rating criteria are applied for the veteran's diagnosed psychiatric conditions, and they overlap to a great extent, the Board will rate them together as one psychiatric disorder. New rating criteria for psychiatric disabilities have been in effect since November 7, 1996. The Board has interpreted the claim liberally employing the decision by the United States Court of Appeals for Veterans Claims (the Court), in Karnas v. Derwinski, 1 Vet. App. 308 (1991), where a 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 veteran will apply. The Board will apply the version most favorable to the veteran. The veteran's anxiety disorder with a history of a personality disorder with passive aggressive features and drug and alcohol dependence, alleged as PTSD, was originally assigned a 30 percent disability rating in accordance with the "old" criteria, in effect prior to November 7, 1996, pursuant to 38 C.F.R. § 4.132, Diagnostic Codes 9410 and 9411. Under the "old" criteria, a 30 percent rating was assigned when there was a definite impairment in the ability to establish or maintain effective and wholesome relationships with people, or when psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. When the ability to establish and maintain effective or favorable relationships with people was considerably impaired and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment, a 50 percent rating was warranted. 38 C.F.R. § 4.132, Code 9410, 9411. 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 for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, the General Counsel of the 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." VAOGCPREC 9-93 (O.G.C. Prec. 9-93); 59 Fed. Reg. 4752 (1994). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). Under the "new" diagnostic criteria for psychiatric disorders, effective on and after November 7, 1996, the veteran's anxiety disorder, alleged as PTSD, was assigned a 30 percent disability evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Codes 9326, 9411, and 9413. Under the "new" criteria, a 30 percent evaluation is warranted when there is 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 normal conversation), 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 when there is 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. 38 C.F.R. § 4.130, Diagnostic Codes 9326, 9411, and 9413. In assessing the evidence of record, it is important to note that the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 51-60 represents 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). Here, the record shows that the veteran has had a long history of a substance abuse problem. It is ambiguous whether the veteran is currently receiving Social Security Administration benefits. Although, the record shows that the Social Security Administration granted him benefits in 1992, the veteran has consistently maintained in subsequent statements that he was not receiving Social Security Administration benefits. In any event, he is working full- time now and there is no objective evidence of record to demonstrate that the veteran's psychiatric conditions have caused him to lose employment or have kept him from obtaining employment. His lowest GAF score has been 60, which was assigned in February 1999. As noted, a GAF score of 60 represents moderate symptoms. Carpenter. Significantly, the February 1999 VA examiner found that the veteran was able to obtain substantial gainful employment, as evidenced by the fact that he was working at the time. In applying the evidence of record to the rating criteria, the Board finds that the veteran's current level of disability equates to a 30 percent rating under both the prior and amended regulations. The veteran's symptomatology certainly does not reflect a disability that is more than moderate based on the evidence of record. Nor does the veteran exhibit the aforementioned manifestations necessary to satisfy the criteria for a rating in excess of 30 percent. Chronic low back pain with mild degenerative changes Under 38 C.F.R. 4.71a, Diagnostic Code 5295, a 20 percent rating is warranted for a lumbosacral strain manifested by muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent rating requires severe impairment manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. In this case the medical evidence documents that the veteran has degenerative disc disease of the lower back at L4-S1. While the medical evidence of record cumulatively indicates that the veteran has moderate to moderately significant restricted range of motion and functional impairment due to pain, there is no evidence of severe impairment manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, or a marked limitation of forward bending in a standing position. Moreover, abnormal mobility on forced motion is not shown. The medical evidence thus does not objectively confirm symptomatology warranting a rating in excess of 20 percent under Diagnostic Code 5295. The Board also has considered whether a higher rating is warranted under other provisions or diagnostic codes. Because there is evidence that the veteran has limited lumbar spine movement, consideration under Diagnostic Code 5292 is appropriate. Under 5292 a 30 percent rating is warranted for severe limitation of motion and a 20 percent rating is warranted for moderate limitation of motion. The evidence discloses that the veteran exhibited forward flexion to 90 degrees, backward extension to 15 degrees, lateral bending to 15 degrees bilaterally, and rotation to 30 degrees bilaterally. These findings equate to no more than a moderate limitation of lumbar spine motion, and they clearly do not meet or approximate a severe limitation of lumbar spine motion. Therefore, a rating in excess of 20 percent under Diagnostic Code 5292 is not warranted. The Board notes that Diagnostic Code 5292 contemplates pain on motion. Therefore, a separate evaluation for pain is not applicable because the veteran's pain has been considered in the assignment of the current 20 percent evaluation. See 38 C.F.R. 4.40, 4.45, 4.59 (1997); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Moreover, even if the Diagnostic Code did not consider pain there is no disuse atrophy or incoordination on use to justify an increased rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45. Hypertension In this case, the RO evaluated the veteran under Diagnostic Code 7101, for hypertension. Effective January 12, 1998, the VA revised the criteria for evaluating hypertension. 62 Fed. Reg. 65207-224 (1997). The Board notes that the RO evaluated the veteran's claim under both the old and new rating criteria. Karnas v., 1 Vet. App. 312 - 330. Under the provisions of the Rating Schedule in effect prior to January 12, 1998, hypertensive vascular disease (essential arterial hypertension) manifested by diastolic pressure predominantly 110 or more with definite symptoms warranted a 20 percent evaluation. Diastolic pressure predominantly 100 or more warranted a 10 percent evaluation. A note provided that when continuous medication was necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent would be assigned. 38 C.F.R. § 4.104, Diagnostic Code 7101. Based on a thorough review of the evidence, the Board finds that a rating in excess of 10 percent for hypertension is not warranted. Although the medical records provide numerous blood pressure readings for the veteran these records are negative for diastolic readings predominantly 110 or greater. Accordingly, an evaluation in excess of 10 percent for hypertension, prior to January 12, 1998, is denied. Under the provisions of the rating schedule effective January 12, 1998, a 20 percent evaluation is assignable for hypertension when the diastolic pressure is predominantly 110 or more, or when systolic pressure is predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Based on a thorough review of the evidence, the Board likewise finds that a rating in excess of 10 percent for hypertension is not warranted pursuant to the amended regulations. As is evident from the medical records previously discussed the appellant's diastolic pressure levels preclude an increased rating under the new regulations, and as a systolic reading of 200 or greater has never been recorded, let alone recorded on a persistent basis, it follows that a rating in excess of 10 percent is not warranted. Chronic left knee pain with status post repair of the posterior cruciate ligament and medial capsule The veteran's chronic left knee pain with status post repair of the posterior cruciate ligament and medial capsule is currently rated as 10 percent disabling under Diagnostic Code 5257, which is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In a VA General Counsel precedent opinion with VAOPGCPREC 23- 97 (O.G.C. Prec. 23-97); 62 Fed.Reg. 63604 (1997), it was determined that where, as in the instant case, a knee disorder is already rated under Diagnostic Code 5257, a separate rating may be considered under Diagnostic Codes 5003, 5010 where limitation of motion under Diagnostic Code 5260 or 5261 meets the criteria for a zero percent rating. If the veteran does not at least meet the criteria for a noncompensable evaluation under either of those two codes, there is no additional disability for which a rating may be assigned. Under Diagnostic Code 5260, a 10 percent disability evaluation is available for flexion of a leg limited to 45 degrees; and a 20 percent evaluation is available where flexion is limited to 30 degrees. Under Diagnostic Code 5261, a 10 percent disability evaluation is available for extension of a leg limited to 10 degrees; and a 20 percent evaluation is available for extension of a leg limited to 15 degrees. 38 C.F.R. § 4.71a, 5260, 5261. With respect to the rating warranted for any instability of the left knee, the Board finds that an increased rating for instability of the right knee is not warranted because there is no medical evidence of moderate recurrent subluxation or lateral instability. Hence, an increased rating is not warranted under Diagnostic Code 5257. The Board finds, however, that because the VA outpatient x- ray studies have consistently shown degenerative joint disease of the left knee with complaints of pain and objective evidence of reduced flexion that the veteran is entitled to a separate 10 percent disability rating under Diagnostic Codes 5003 and 5060. 38 C.F.R. §§ 4.40, 4.45, see Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Hence, a separate 10 percent rating for painful arthritis is warranted for the left knee. Diagnostic Codes 5003 and 5060. The Board finds, however, that a rating in excess of 10 percent would not be warranted under Diagnostic Codes 5260 or 5261 because the left knee extension is not limited to 15, and the flexion is not limited to 30 degrees. Moreover, functional impairment due to pain does not warrant a rating in excess of 10 percent because there is no competent evidence of disuse atrophy, incoordination on use, or other objective pathology to justify an increased rating under 38 C.F.R. §§ 4.40, and 4.45. Chronic right hand pain One of the criteria used to determine the severity of the veteran's chronic right hand pain is listed at 38 C.F.R. § 4.71a, Code 5225. This code provides for a maximum 10 percent rating for ankylosis - meaning complete bony fixation of the joint of the finger in a stationary position (either favorable or unfavorable). Given that ankylosis is not shown, a rating in excess of 10 percent is not warranted. Furthermore, while the veteran contends that he experiences functional impairment due to right hand pain, the Board notes that the DeLuca standards do not apply when a veteran is at the maximum for limitation of motion and where a higher evaluation is based on ankylosis. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Hence, the Board finds that a rating in excess of 10 percent is not warranted. Skin disorder of the beard According to the Rating Schedule, disfiguring scars of the head, face or neck warrant a noncompensable evaluation if the disfigurement is slight. Moderate disfigurement warrants a 10 percent evaluation 38 C.F.R. § 4.118, Diagnostic Code 7800. Based on a thorough review of the record, the Board finds that the evidence is against a 10 percent evaluation for the veteran's a skin disorder of the beard as the competent medical evidence does not show that the scar results in moderate disfigurement. In this respect, there is no evidence of moderate disfigurement and no impairment of facial function has been demonstrated. Finally, there is no evidence that the scar is tender, painful, or poorly nourished. Indeed, the veteran himself reports that the scar is asymptomatic. Accordingly, a compensable evaluation for scar, residual tooth extraction and abscess is denied. Bilateral tinea pedis with onychomycosis When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). In this regard, the RO rated the veteran's bilateral tinea pedis with onychomycosis under 38 C.F.R. § 4.118, Diagnostic Code 7806 for eczema. Under the Rating Schedule, a noncompensable evaluation is warranted for eczema with slight, if any, exfoliation, exudation or itching, if on a non-exposed surface or small area. A 10 percent evaluation is warranted for eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area; and a 30 percent evaluation requires exudation or constant itching, extensive lesions, or marked disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7806. Based on a thorough review of the evidence, the Board finds that the evidence supports a 10 percent evaluation for bilateral tinea pedis with onychomycosis under Diagnostic Code 7806. According to the December 1992 VA examination report, physical examination and color photographs revealed scaling on the plantar aspect bilaterally and hyperkeratotic rounded lesions on the plantar aspect bilaterally. The veteran maintains that this condition continues to bother him. Therefore, the Board finds that a 10 percent evaluation is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. An evaluation in excess of 10 percent is, however, not warranted. In this regard, the Board notes that the evidence does not show that the disorder is manifested by exudation or constant itching, extensive lesions, or marked disfigurement, as required for a 30 percent evaluation under Diagnostic Code 7806. Pulmonary tuberculosis by history Historically, the veteran was found to have pulmonary tuberculosis. The veteran's service-connected pulmonary tuberculosis is evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6731. The Board notes that the evaluative criteria of Diagnostic Code 6731 were amended during the pendency of this claim. Therefore, the Board has considered both the criteria applicable when the veteran initiated his claim as well as the current criteria. The version must favorable to the evaluation of the veteran's claim will be applied. Karnas. At the time the veteran submitted his claim in 1991, and thereafter until October 7, 1996, Diagnostic Code 6731 provided a noncompensable evaluation for healed pulmonary tuberculosis lesions with minimal or no symptoms. If the residuals were definitely symptomatic with pulmonary fibrosis and moderate dyspnea on extended exertion, the disability would be rated at 10 percent. 38 C.F.R. § 4.97, Diagnostic Code 6731 (1996). Effective October 7, 1996, Diagnostic Code 6731 provides that residuals of chronic, inactive PTB will be rated as interstitial lung disease, restrictive lung disease, or, when obstructive lung disease is the major residual, as chronic bronchitis. 38 C.F.R. § 4.97 (1997). The general rating formulas for restrictive lung disease, chronic bronchitis, or emphysema (Diagnostic Codes 6600, 6603, 6840-6847) provide that a compensable, 10 percent evaluation, is warranted with Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted, or a ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. After considering the evidence, the Board is unable to find a basis for assigning a 10 percent rating at anytime. The preponderance of the evidence effectively shows that the veteran's respiratory condition has been inactive and with no symptoms. Extensive testing in July 1990 was negative for pulmonary tuberculosis. Although the veteran was hospitalized in July 1990 for complaints of a non-productive cough, night sweats, fatigue, and lethargy, and while VA prescribed medication for pulmonary tuberculosis at that time, there has been no showing of continued disability and there is no medical evidence of impairment of health, either in 1991 or at any other time during the pendency of this appeal, that is specifically attributable to the veteran's tuberculosis. Therefore, there is no basis for assigning a compensable rating. Eyes With respect to the veteran's claimed various eye disorders, the most recent VA eye examination in February 1999 showed corrected visual acuity was 20/20, bilaterally, which is considered normal. 38 C.F.R. § 4.84a. Examination did not reveal any visual defect. Without evidence of a current disability, there is no basis for a 10 percent rating. Service-connected dermatophytosis of the thighs The veteran's dermatophytosis is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7813. Under the Rating Schedule, a 10 percent evaluation is warranted for exfoliation, exudation or itching, if involving an exposed surface or extensive area. 38 C.F.R. § 4.118, Diagnostic Code 7813. Based on a thorough review of the evidence, the Board finds that the evidence does not warrant a 10 percent evaluation for dermatophytosis. The recent medical evidence of record does not show that the veteran has experienced exfoliation, exudation or itching of the thighs. Therefore, a 10 percent rating is not warranted. Conclusion With respect to making an objective determination of total disability for pension purposes the Board has undertaken the foregoing review and finds that the combined rating assigned in consideration of these disabilities is 60 percent. 38 C.F.R. § 4.25 (1999). Accordingly, a permanent and total disability rating under the provisions of 38 C.F.R. § 4.15 is not in order on an objective basis. In addition, the veteran is without a single ratable disability at 60 percent or more, and without at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Given the foregoing consideration (and even 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 does not satisfy the criteria provided by 38 C.F.R. §§ 4.16 and 4.17 for a permanent and total disability rating for pension purposes. Since the veteran's disabilities do not meet the threshold requirements of 38 C.F.R. § 4.17, as applied to pension cases through 38 C.F.R. § 4.16, the Board must further determine whether the veteran would be eligible for pension benefits on the basis of subjective criteria, see Brown v. Derwinski, 2 Vet. App. 444 (1992), including consideration of a claimant's age, education and occupational history, and unusual physical and mental defects. Such subjective standard mandate of 38 U.S.C.A. § 1521(a) is created by 38 C.F.R. § 4.17 and § 3.321(b)(2) being read together. See Talley. With respect to the subjective factors bearing on the veteran's possible entitlement to pension benefits, the Board notes that according to the DD 214, he was born in 1944. According to his testimony, he claimed to have completed high school, and he worked essentially as a truck driver. He also indicated that he could no longer drive a truck or do any other work in his profession due to back pain. It is important to note, however, that the VA examination reports of record are negative for any finding that the veteran was totally disabled or unable to work due to his disabilities. That is, no examiner has found that all jobs available in the national economy which are consistent with the appellant's age, education, and occupational experience are precluded because of the disabilities discussed above. Moreover, the veteran has been employed full-time for several years, according to the August 1997 and February 1999 VA examinations. Furthermore, he has not provided any evidence to dispute his employment or to suggest that he is currently anything other than substantially and gainfully employed. Accordingly, entitlement to a permanent and total rating for pension purposes is denied. 38 U.S.C.A. §§ 1502, 1521, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.342, and Part 4. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a permanent and total disability rating for non-service connected pension purposes is denied. DEREK R. BROWN Member, Board of Veterans' Appeals If there is only one such disability, this disability 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, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16.