BVA9501661 DOCKET NO. 93-10 496 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran served on active duty from May 1966 to December 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal of a September 1992 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied a permanent and total disability rating for pension purposes. The veteran testified at a hearing before a member of the Board in August 1993. A that time the issue of entitlement to service connection for lumbar disc disease, including the issue of clear and unmistakable error in an October 1982 RO rating decision, was raised. That issue has not been developed for appellate review, is not inextricably intertwined with the issue before the Board, and is referred to the RO for consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that she is unable to obtain or retain substantially gainful employment due to her disabilities. It is pointed out that she has a significant low back disorder and that she has been found to be unemployable by the Social Security Administration. 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(s). 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 preponderance of the evidence supports the claim for a permanent and total rating for pension purposes. FINDINGS OF FACT 1. The veteran, who served during the Vietnam era, is 50 years old, has a high school education and one year of nursing school, and has occupational experience as a cashier and a licensed practical nurse. 2. The veteran's permanent disabilities, when considered with her individual background, render her unemployable. CONCLUSION OF LAW The criteria for a permanent and total disability rating for pension purposes have been met. 38 U.S.C.A. §§ 1502, 1521, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4. REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Factual Background Review of the record shows that the veteran was born in July 1944 and has a high school education plus one year of nursing school. She was a licensed practical nurse and has occupational experience in that field, but the record shows that she is no longer licensed. In her most recent application for pension benefits, received by VA in May 1992, she indicated that she had also worked as a cashier and last worked in December 1991. A statement, dated in August 1992, was received from P. James Ridella, M.D. He reported that an MRI study showed that the veteran had a bulging disc at the L5-S1 level, compromising the right S1 nerve root, and a smaller midline protrusion at L4-L5. A copy of this study, dated in March 1992, is also in the record. An examination was performed by VA in July 1992. The veteran gave a 20 year history of low back pain that has been exacerbated in the last 5 years. The pain was located in the lower lumbar sacral area and radiated down the right leg. She suffered some paresthesia, numbing, tingling, and weakness. On objective examination, she walked with an antalgic gait. There was no apparent tenderness of the paravertebral muscles and no evidence of spasm. Forward flexion was to 30 degrees, backward extension was to 5 degrees, lateral flexion was to 10 degrees, bilaterally and rotation was to 10 degrees, bilaterally. Deep tendon reflexes were symmetrically decreased in both knee and ankle joints. Strength seemed to be a little bit decreased and there was a bilateral positive straight leg raising. X-ray studies were felt to show minimal changes of the lower lumbar vertebra that might be consistent with degenerative joint disease. She denied any cardiovascular symptoms and cardiovascular examination was essentially normal. The diagnoses were no evidence of cardiovascular disease, and chronic low back pain suspected degenerative joint disease. In a statement dated in October 1992, Robert L. Rundorff, M.D. indicated that he had treated the veteran for left lateral epicondylitis. A report of a work capacity evaluation, dated in November 1992, has been received. The report indicates that the veteran's most significant limiting factor was her lumbar pain. The test results were interpreted as placing the veteran into the sedentary level category of work, defined as 10 lbs. or less for infrequent lifting, and 0 lbs. for frequent lifting. In treatment notes of Dr. Ridella, dated in December 1992, he indicated that a work capacity study had indicated that the veteran could perform sedentary work, but he was of the opinion that she was not operative and was disabled and unable to work. Outpatient treatment records of Jeanmarie Koh, M.D., dated from January to March 1993, show that the veteran was treated for a fall on some ice in January 1993. She had increased pain in her back, although physical findings were reported to be about the same as prior to the accident. After an evaluation in March 1993, the assessments were chronic lumbosacral pain, secondary to degenerative disc disease, possible signs of sciatica, bilateral lateral epicondylitis, possible peripheral vascular disease of the right lower extremity and muscle cramping. In a March 1993 letter, Dr. Koh opined that the veteran was disabled and unable to perform any substantial gainful employment. In a July 1993 decision, an administrative law judge of the Social Security Administration, found that the veteran was totally disabled by reason of degenerative disc disease of the lumbar spine as of January 1993. A hearing was held before a member of the Board in August 1993. The veteran testified that, in addition to the disability of her low back, she also had numbness and tingling in her hands and feet, for which she was taking medication, as well as frequent headaches. She stated that she could not go shopping or do housework and could not walk more than one block. It was noted that she used a walker to ambulate. II. Analysis It is initially noted that the veteran's claim on appeal is well grounded; that is, it is not inherently implausible. 38 U.S.C.A. § 5107(a). It is also found that the facts relevant to the issue on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of her claim has been satisfied. Id. A veteran who has served for 90 days or more during a period of war is entitled to VA non-service-connected pension if he or she is permanently and totally disabled from non-service-connected disability. 38 U.S.C.A. § 1521(a), (j) (West 1991). A veteran is permanently and totally disabled if he or she suffers from a disability which would render it impossible for the average person to follow a substantially gainful occupation, and it is reasonably certain that such disability will continue throughout the life of the veteran. 38 U.S.C.A. § 1502(a) (West 1991). VA regulations describe the requirements for permanent, total disability. 38 C.F.R. § 3.340(b) (1993). Additional rating criteria for permanent and total disability ratings for pension purposes appear in 38 C.F.R. § 3.342 (1993). Block v. Brown, No. 92-0633 (U.S. Vet. App. Dec. 23, 1994). The veteran's primary disability is the degenerative disc disease from which she has little intermittent relief. I consider this disability to be 60 percent disabling, on the basis of sciatica, diminished reflexes, limitation of motion, MRI demonstration of disc pathology, and measured impairment of lifting capacity. 38 C.F.R. Part 4, Code 5293. While this does not qualify her for a total rating based upon the "average person" test, it does meet the percentage requirements of 38 C.F.R. § 4.16 (1993). The preponderance of the medical evidence favors a finding that her disability renders her unemployable in fact. Under such circumstances, she is found to be permanently and totally disabled for pension purposes. (CONTINUED ON NEXT PAGE) ORDER A permanent and total disability evaluation for pension purposes is granted. J. E. DAY 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.