Citation Nr: 0001194 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 95-14 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case was previously remanded by the Board on several occasions, most recently in February 1999. The requested development has been completed. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's left shoulder disability is properly rated as 20 percent disabling. 3. The veteran's psychiatric disability is shown to be properly rated as 10 percent disabling. 4. The veteran's cervical spine degenerative disc disease is shown to be properly rated as 10 percent disabling. 5. The veteran's lumbar spine degenerative disc disease is shown to be properly rated as 10 percent disabling. 6. The veteran's chronic obstructive pulmonary disease (COPD) is shown to be properly rated as 10 percent disabling. 7. The veteran's hypertension, eczema, history of headaches, sinusitis, and high cholesterol, and dyspepsia are shown to be properly rated as noncompensable (0 percent disabling). 8. The veteran's substance abuse was the result of his own willful misconduct. 9. The veteran is 52 years old, has a 12th grade education, and has experience in maintenance and as a laborer. 10. The veteran's permanent disabilities do not prevent him from securing or maintaining substantially gainful employment consistent with his education and work experience. CONCLUSION OF LAW The veteran is not permanently and totally disabled for VA disability pension purposes within the meaning of governing law and regulations. 38 U.S.C.A. § 1155, 1502, 1521, (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.321, 3.323(b)(2), 3.340(b); 3.342, 4.7, 4.15, 4.16(a), 4.17, 4.17a, 4.18, 4.19, 4.20, 4.25, 4.27 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for pension benefits is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). He has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The Board notes that the veteran meets certain basic eligibility requirements for VA pension benefits. First, he served on active duty for a period of ninety days or more during a period of war. 38 U.S.C.A. §§ 101(11), (29); 1521(a), (j) (1) (West 1991). Second, based on his own statements regarding his income or other assets, he appears eligible for pension under the statutory income and net worth criteria applied to VA pension benefits. 38 U.S.C.A. §§ 1521, 1522 (1991). Therefore, the issue is whether the veteran is permanently and totally disabled for VA pension purposes within the meaning of governing law and regulations. 38 U.S.C.A. §§ 1155, 1502, 1521, (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.321, 3.323(b)(2), 3.340(b); 3.342, 4.15, 4.16(a), 4.17, 4.17a, 4.18, 4.19, 4.20, 4.25, 4.27 (1999). In Brown v. Derwinski, 2 Vet. App. 444 (1992), the United States Court of Veterans Appeals (Court) observed that permanent and total disability for pension purposes can be shown in two ways under VA regulations which provide a combination of "objective" and "subjective" standards. Brown, 2 Vet. App. at 446; Talley v. Derwinski, 2 Vet. App. 282 (1992); 38 U.S.C.A. § 1502(a)(1), (2) (West 1991); 38 C.F.R. §§ 3.321(b)(2); 4.17 (1999). The two ways that permanent and total disability can be shown under the law are as follows: (1) the veteran must be unemployable as a result of a lifetime disability (the "subjective" standard which is based on the disabilities, age, occupational background, and other related factors of the individual veteran whose claim is being adjudicated) or, even if not unemployable, (2) the veteran must suffer from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation (the "objective" standard which is based on the percentage ratings assigned for each disability from the Schedule for Rating Disabilities, 38 C.F.R., Part 4; the minimum percentage rating requirements for total ratings based on unemployability in 38 C.F.R. § 4.16(a); and the permanence of those percentage ratings for pension purposes required by 38 C.F.R. § 4.17). 38 U.S.C.A. § 1502(a)(1), (2) (West 1991); 38 C.F.R. §§ 3.321(b)(2); 3.340(b); 3.342, 4.15, 4.16(a), 4.17, 4.18, 4.19 (1999); Brown, 2 Vet. App. at 446. In making a determination of permanent and total disability for pension purposes, the RO must first apply the percentage standards of 38 C.F.R. § 4.16(a) and the other requirements of 38 C.F.R. § 4.17 (the objective standard). If a permanent and total disability rating is not warranted under the objective standard and the veteran is unemployable, the RO should refer the claim to the adjudication officer for consideration of entitlement to a permanent and total disability rating on an extra-schedular basis under 38 C.F.R. §§ 3.321(b)(2), 4.17(b) (the subjective standard). See Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992) (whether a permanent and total disability rating could have been assigned on an extra-schedular basis under 38 C.F.R. § 3.321(b)(2) should have been considered). It is important to note that, in applying the objective standard, the reductions in the minimum percentage requirements of 4.16(a) based on age were rescinded in an amendment to 38 C.F.R. § 4.17. 56 Fed. Reg. 57,985 (1991). In addition, the Board notes that in the course of adjudicating a claim for pension, the RO must also make determinations as to whether any of the disabilities in question are the result of the veteran's willful misconduct. 38 U.S.C.A. § 1521(a) (West 1991 and Supp. 1999); 38 C.F.R. § 4.17a (1999). Finally, the Board observes that evaluations for service-connected disabilities may be combined with evaluations for disabilities not shown to be service connected and not the result of the veteran's willful misconduct or vicious habits. 38 C.F.R. § 3.323(b)(2) (1999). In this case, the RO properly evaluated the veteran according to the "objective" or "average person" standard. 38 U.S.C.A. § 1502(a)(1) (West 1991); 38 C.F.R. §§ 4.16(a), 4.17 (1999). The RO assigned a rating for each disability in accordance with the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999); Roberts, 2 Vet. App. at 390, citing 38 C.F.R. §§ 3.340(a), 4.15, 4.17 (1991) (before a determination can be made as to whether a total and permanent disability rating for pension purposes is warranted, "an evaluation must be performed under the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability."). In March 1999 the RO contacted the veteran and requested that he list all of the disabilities that he claimed rendered him permanently and totally disabled for pension purposes. Later that same month the veteran replied "everything that I have filed a claim for. I am still suffering from those complaints. Cervical and lumbar spine disorders. Psychiatric disorder. PTSD. Agent Orange exposure during service. Pulmonary tuberculosis. Left shoulder extreme pain. Lower back pain." The Board notes that the veteran's claims for service connection for these disorders have been previously denied. Moreover, the RO has rated these veteran's disabilities including ones that do not appear on the veteran's list of alleged disabilities. In June 1995 the veteran presented sworn testimony before a RO hearing officer. Much of this testimony was related to the veteran's other claims for service connection for various disabilities. However, the veteran also testified about the symptoms of disabilities which the RO rated with respect to his claim for nonservice connected pension benefits. With regard to the veteran's psychiatric disability, the RO assigned a 10 percent rating under 38 C.F.R. Part 4, Code 9410 (1999), for an unspecified neurosis. The 10 percent rating contemplates "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 rating contemplates "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 rating contemplates "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 rating contemplates "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 worklike setting); inability to establish and maintain effective relationships." Finally, a 100 percent disability rating contemplates " 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." 38 C.F.R. Part 4, § 4.130, Diagnostic Code 9410 (1999). Where regulations change during the course of an appeal, the Board must determine, if possible, which set of regulations, the old or the new, is more favorable to the claimant and apply the one more favorable to the case. Karnas v. Derwinski, 1 Vet. App. 308 (1991); VAOPGCPREC 11-97 (Mar. 25, 1997). At the time the veteran filed his claim for a nonservice- connected pension, the applicable regulations in effect with respect to rating a psychiatric disorder provided a 50 percent evaluation where the ability to establish or maintain effective or favorable relationships with people was considerably impaired; where, by reason of psycho-neurotic symptoms, the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. A 30 percent rating was assignable with definite impairment in the ability to establish or maintain effective and wholesome relationships with people; where the psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 10 percent was warranted in a situation where there was less than the criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Codes 9400-9411 (1996). It does not appear from the record that the veteran was provided the old regulations for rating his psychiatric disorder. When the old regulations were in effect, prior to November 7, 1996, the veteran did not have a diagnosis of a ratable acquired psychiatric disorder, but showed personality pathology and substance abuse. A ratable disorder, anxiety, was not shown until 1998, at which time the new regulations were in effect, and the RO rated him under these regulations and provided the regulations to the veteran. The Board does not find that he will be prejudiced by the Board considering his disability under the old set of criteria because, given the level of severity of the disability as reflected in the medical evidence of record, the results of such rating will not alter the outcome of the determination as to whether he is permanently and totally disabled for pension purposes, as will become clear in this decision. See Bernard v. Brown, 4 Vet. App. 384. The veteran has been diagnosed with an anxiety disorder, and an intermittent explosive disorder and anti-social personality disorder. There is also a large volume of medical evidence of record which reveals that the veteran is also diagnosed with substance abuse including cocaine and alcohol. In July 1998 the most recent VA psychiatric examination of the veteran was conducted. Mental status examination revealed a mildly anxious and irritable mood. The veteran's affect was frequently dramatic. He denied having hallucinations and no delusions were noted. The veteran was oriented with good memory and recall. Insight was poor. The examining psychiatrist reviewed the prior medical evidence of record and concurred with prior evaluations that the veteran had a long history of drug abuse, a sociopathic personality and was malingering in an attempt to secure VA compensation. The examining psychiatrist ordered psychological testing but stated that the veteran had a Global Assessment of Functioning (GAF) scale score of 60 and that the veteran was "employable with mild to moderate impairment." The Board notes that a GAF score of 51-60 is defined as "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)." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, 31 (4TH ed. rev., 1994). In October 1998 the VA psychological testing of the veteran was conducted. However, the examiner noted that the veteran response style suggested that he was attempting to exaggerate his symptoms. The RO found that the veteran's alcohol abuse was the result of his own willful misconduct. Thus, it may not be included in the combined disability rating. 38 C.F.R. § 3.323(b)(2) (1999). The veteran's psychiatric disorder is properly rated as 10 percent disabling. The medical evidence of record reveals that the veteran does have anxiety and anti-social personality disorders along with a substance abuse disorder. However, the competent medical evidence of record reveals only mild to moderate impairment resulting from all of these psychiatric disorders. Moreover, the medical opinion expressed by numerous psychiatrists is that, on examination, the veteran attempts to exaggerate his symptoms for the sole purpose of obtaining compensation. More importantly, the medical opinion expressed in the most recent VA psychiatric examination was that the veteran was employable. With respect to the old regulations, requiring "definite" impairment to warrant a 30 percent evaluation, the General Counsel of VA concluded that "definite" was to be construed as "distinct, unambiguous, and moderately large in degree." VAOPGCPREC 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." However, as reported above, the medical evidence shows no more than a mild to moderate impairment due to the veteran's psychiatric disorders, warranting a rating no higher than 10 percent. Under the new regulations, the veteran's psychiatric problems do not warrant a rating in excess of 10 percent. He does not manifest panic attacks, chronic sleep impairment, or memory loss. He did report depression and anxiety was diagnosed. While the Board concludes that the veteran's psychiatric problems are no more than 10 percent disabling under either set of rating criteria, it is worth noting that, even if the symptoms were found to warrant a 30 percent disability rating, it would change the result. The psychiatric examiner specifically found the veteran to be employable. Moreover, a 30 percent evaluation for this disability would not result in a combined disability evaluation such as to meet the percentage requirements of 38 C.F.R. § 4.16(a) (1999). See 38 C.F.R. § 4.25 (Combined Ratings Table) (1999). In April 1995 a decision by the Social Security Administration (SSA) found the veteran to be disabled for the purpose of SSA benefits. The SSA determination of disability indicated that the veteran's psychiatric disorders where what rendered him disabled. Specifically, the veteran's substance abuse disorder was one of the major disorders noted to cause the veteran's disability. The SSA's determination does not control VA adjudication of the case. Importantly, the SSA determination was based in part on the veteran's substance abuse. That condition is the result of the veteran's own willful misconduct and is therefore not properly considered by the Board in evaluating the veteran's ability to work. Additionally, the SSA decision was made prior to the recent VA psychiatric examinations which indicated that the veteran was both employable and exaggerating his symptoms to obtain compensation. The VA pension criteria require a finding that the veteran have disabilities, permanent in nature, that would preclude all forms of gainful employment. The Board is bound by the above-referenced federal regulations in rendering its decision. With regard to the veteran's lung disability, the RO assigned a 10 percent rating under 38 C.F.R. Part 4, § 4.97, Diagnostic Code 6604 (1999), for chronic obstructive pulmonary disease (COPD). A 10 percent rating is warranted for COPD manifested by FEV-1 of 71 to 80 percent predicted, or, FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66 to 80 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6604 (1999). In June 1999 a VA examination of the veteran was conducted. Pulmonary function tests were also conducted. These tests revealed that the veteran's FEV-1 was 79 percent predicted and his DLCO was 96 percent predicted. As such, the veteran's COPD is properly rated at a 10 percent disability rating. With regard to the veteran's cervical spine disability, the RO assigned a 10 percent rating under 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5293 (1999), for degenerative disc disease of the cervical spine. The 10 percent disability rating contemplates mild degenerative disc disease. To warrant assignment of the next higher, 20 percent, disability rating, the evidence must show moderate disc disease with recurring attacks. A 40 percent rating contemplates severe disc disease with recurring attacks with intermittent relief. Finally, a 60 percent rating, the highest rating assignable, contemplates pronounced disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5293(1999). Which has not been shown in this case. In April 1999 a VA examination of the veteran was conducted. The veteran complained of neck pain in the left side of his neck running down into his left shoulder. Physical examination of the neck was unremarkable, but there was some tenderness over the left trapezius muscle. Motor and sensory examinations were essentially normal. X-ray examination revealed narrowing of the disc spaces at C4-5, C5-6, and C6- 7. Range of motion testing was of the neck was conducted and revealed flexion to 28 degrees; extension to 10 degrees; left flexion to 12 degrees; right flexion to 19 degrees; left rotation to 15 degrees; and right rotation to 15 degrees. However the examiner "questions the accuracy of range of motion secondary to significant guarding with all movements." The evidence of record reveals that the veteran's degenerative disc disease of the cervical spine is properly rated as 10 percent disabling. He has mild symptoms which are confirmed by x-ray evidence of disc space narrowing. With regard to the veteran's lumbar spine disability, the RO assigned a 10 percent rating under 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5293 (1999), for degenerative disc disease of the lumbar spine. The 10 percent disability rating contemplates mild degenerative disc disease. To warrant assignment of the next higher, 20 percent, disability rating, the evidence must show moderate disc disease with recurring attacks. A 40 percent rating contemplates severe disc disease with recurring attacks with intermittent relief. Finally a 60 percent rating, the highest rating assignable, contemplates pronounced disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5293(1999). Which has not been shown in this case. In April 1999 a VA examination of the veteran was conducted. Physical examination of the low back revealed some mid point tenderness without any swelling. Straight leg raising was negative. There was no evidence of muscular atrophy, and motor and sensory examination were essentially normal. X-ray examination revealed minimal disc space narrowing at L5-S1. Range of motion testing was of the neck was conducted and revealed flexion to 45 degrees; extension to 20 degrees; left flexion to 5 degrees; right flexion to 5 degrees; left rotation to 20 degrees; and right rotation to 18 degrees. However the examiner "questions the accuracy of range of motion secondary to significant guarding with all movements." The evidence of record reveals that the veteran's degenerative disc disease of the lumbar spine is properly rated as 10 percent disabling. He has mild symptoms which are confirmed by x-ray evidence of disc space narrowing. With regard to the veteran's left shoulder arthritis, the RO assigned a 10 percent rating under 38 C.F.R. Part 4, § 471a, Diagnostic Code 5003(1999). Diagnostic code 5003, degenerative arthritis, requires rating under limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1995). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). In April 1999 a VA examination of the veteran was conducted. Examination of the left shoulder revealed pain to palpation with no swelling. X-ray examination revealed minimal arthritic changes in the left shoulder. The veteran was noted to be right handed. Range of motion testing of the left shoulder revealed flexion to 65 degrees; abduction to 42 degrees; and, external rotation to 12 degrees. Limitation of motion of the shoulder (arm) is rated under diagnostic code 5201. A 20 percent rating is warranted for limitation of motion of the minor arm to shoulder level and to midway between the side and shoulder. The highest possible rating of 30 percent is warranted for limitation of the minor arm to 25 degrees from the side. The ranges of motion of the left shoulder exhibited on the 1999 VA examination reveal that the veteran's left shoulder has motion limited to the extent that a 20 percent rating is warranted. The RO has listed a number of other disabilities and rated them each as noncompensable (0%). These include: hypertension, tuberculosis, eczema, sinusitis, high cholesterol, headaches, and dyspepsia. There is no evidence of any active tuberculosis. The Board finds no competent medical evidence of record showing any diagnosis of hypertension. There are prior treatment record showing a history of occasional sinusitis and headache, but there is no evidence of current disability. There is also no evidence of current high cholesterol or dyspepsia. As such these disabilities are properly rated as 0 percent disabling. After rating each disability, the Board has determined that the proper combined disability rating is 50 percent. 38 C.F.R. § 4.25 (1999). In accordance with 38 C.F.R. § 4.17 (1999), the disability evaluations must be compared with the minimum rating requirements for a total disability rating found in 38 C.F.R. § 4.16(a) (1999). That regulation provides that total disability ratings may be assigned where there are two or more disabilities, provided that one disability is rated at 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (1999). Because the combined rating in this case is only 50 percent, the requirements for a total rating based on the objective standard in the regulations are not met. At this point, the Board notes that, if the veteran's psychiatric disorder warranted a 30 percent evaluation, which we have determined it does not, the combined evaluation would only be 60 percent, and there would still be no disability rated at 40 percent or higher with additional disability bringing the combined rating to 70 percent. The Board concludes, therefore, that the veteran's claim for a permanent and total disability evaluation for pension purposes cannot be granted on this basis. In compliance with the law, the regulations, and the rulings of the Court, the RO then considered whether it should refer the claim to the adjudication officer for consideration of entitlement to a permanent and total disability rating on an extra-schedular basis under 38 C.F.R. §§ 3.321(b)(2), as it is required to do under 38 C.F.R. § 4.17(b) for "veterans who fail to meet the percentage requirements [under § 4.16(a)] but who meet the basic entitlement criteria and are unemployable . . . ." 38 C.F.R. § 4.17(b) (1999) (emphasis added). The RO decided that the evidence did not show that the veteran had disabilities, permanent in nature, that would preclude all forms of gainful employment. In light of this determination, the RO decided that the claim did not warrant further referral for consideration on an extra schedular basis of a permanent and total disability rating for pension purposes. For the reasons and bases which follow, the Board concludes that the RO's determination as to the veteran's unemployability was appropriate in this case. Section 3.321(b)(2) of the regulations reiterates the requirement of 38 C.F.R. § 4.17(b) that a veteran be "unemployable" before the RO may refer the case to the adjudication officer. In addition, that regulation requires the RO to consider the issue of unemployability in the context of the veteran's disabilities, age, occupational background, and other related factors. 38 C.F.R. § 3.321(b)(2) (1999) (where a veteran is "found to be unemployable by reason of his or her disability(ies), age, occupational background and other related factors," the adjudication officer is authorized to approve a permanent and total disability rating for pension purposes on an extra- schedular basis). In this regard, the Board notes that the veteran is 52 years old, that he has a 12th grade education, and that his occupational background includes work as a dishwasher and a maintenance man. The Board also notes that the veteran reported having to leave his last job not due to any disability, but because he was caught stealing. The opinion of the VA psychiatrist is that the veteran is not unemployable as a result of his psychiatric disorders, but that the veteran apparently exaggerates his symptoms in an attempt to obtain disability compensation. Much the same was noted on physical examination where accurate ranges of motion could not be obtained because of over guarding on the part of the veteran. The evidence of record reveals that the veteran's inability to maintain employment is the result of his own willful misconduct of substance abuse and criminal activity on the job. Thus, it may not be included in the combined disability rating. 38 C.F.R. § 3.323(b)(2) (1999). In short, the evidence does not demonstrate that the veteran's disabilities are so severe or his educational level so deficient as to preclude all forms of gainful employment. The Board notes with regard to the veteran's disabilities that the descriptions in the medical reports of the degree and extent of the veteran's disabilities contrast significantly with descriptions of the kinds of disabling conditions contemplated by the regulations as permanently and totally disabling. See, e.g., 38 C.F.R. §§ 4.15, 3.340(b) ("permanent loss or loss of 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 bedridden . . . ."). The Board also notes that the descriptions of the veteran's disabilities in the medical examination reports neither provide an overall impression of a severely incapacitated individual nor reflect that the disorders which the RO rated were reasonably certain to continue at the same degree of impairment throughout the veteran's lifetime. 38 U.S.C.A. § 1502 (West 1991). Therefore, the Board concludes that the preponderance of the evidence is against the veteran's claim that he is permanently precluded from securing substantially gainful employment by reason of his disabilities even when those disabilities are assessed in the context of subjective factors such as his age, occupational background, and education. As such, the veteran's claim for a permanent and total disability rating for pension purposes cannot be granted. ORDER A permanent and total disability rating for pension purposes is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals