BVA9501778 DOCKET NO. 93-06 940 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from April 1951 to March 1953. This appeal arises from a February 1991 Department of Veterans Affairs Regional Office San Juan, Puerto Rico (VARO) rating decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his nonservice- connected disabilities combine to render him unemployable. 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 of record supports entitlement to a permanent and total disability evaluation for pension purposes. FINDINGS OF FACT 1. The appellant served on active duty from April 1951 to March 1953. 2. The appellant was born on May [redacted] 1930. 3. He reported that he completed high school. 4. The appellant indicated that he last worked in October 1990 as a "construction worker-painter." 5. The appellant has residuals of a right ankle fracture, manifested by ankylosis of the right ankle in 15 degrees plantar flexion. 6. The appellant has hypertension with predominant diastolic pressure readings of 100. 7. The appellant suffers from degenerative osteoarthritis of the spine with spondylosis and lumbar paravertebral myositis residuals, which results in moderate limitation of motion with pain. 8. The appellant has nasal pterygium which does not result in a loss of vision. 9. The appellant has nephrolithiasis which is evidenced by x- ray. 10. The appellant suffers from benign prostatic hypertrophy, which is visible on x-ray with evidence of prostatic calcifications. 11. The appellant is status post exploratory laparotomy, which is manifested by a healed midline scar. 12. The appellant suffers from exogenous obesity, for which, he diets and attends counseling. 13. The appellant's umbilical hernia was surgically repaired without complication. 14. The appellant's combined disability evaluation is 40 percent. 15. The appellant is not employable by reason of his disabilities. CONCLUSION OF LAW The criteria for a permanent and total disability evaluation for pension purposes are met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.1, 4.2, 4.7, 4.10, 4.15, 4.16, 4.17, 4.20, 4.31, 4.45, 4.59 and Part 4, Diagnostic Codes 5270, 5003, 7101, 5021, 6034, 7508, 7527, 7805, 7999, 7903, 7339 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded." 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is also clear that the appellant's claim has been adequately developed for appellate review purposes by VARO, and the Board may therefore proceed to disposition of the matter. In evaluating the appellant's request for pension benefits, the Board considers all pertinent material and evidence of record. In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App 49 (1990). The appellant has filed a claim of entitlement to a permanent and total disability evaluation for pension purposes. In his claim for pension benefits, he indicated that he was born on May [redacted] 1930 and that he last worked in October 1990 as a self-employed "construction worker-painter." He reported that he completed high school. He claimed that he could not work due to high blood pressure, a right leg and ankle fracture, an umbilical hernia, hepatitis and a back condition. A claim to a permanent and total disability evaluation for pension purposes must be evaluated according to the following: Each nonservice-connected medical condition the appellant has must be separately rated based on the evidence of record and then a combined rating must be calculated. 38 C.F.R. § 4.25 (1991). If the appellant has any disabilities that are not properly included in the rating computation, i.e., disabilities caused by willful misconduct, then their exclusion must be explained and the amount of disability attributed to them quantified. See Talley v. Derwinski, 2 Vet.App. 282 (1992), Roberts v. Derwinski, 2 Vet.App. 387 (1992), Abernathy v. Derwinski, 2 Vet. App. 46 (1991), and Brown v. Derwinski, 1 Vet.App. 553 (1991). Following a complete listing and rating of the disabilities, the claim for pension must first be considered under the provisions of 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. 4.17 regarding unemployability, considering the percentage requirements of 38 C.F.R. § 4.16. The next step, if required, is to consider the pension claim under 38 C.F.R. § 3.321(b)(2). It is further noted that other total disability ratings are scheduled in the various bodily systems of the Schedule for Rating Disabilities. 38 C.F.R. §§ 4.16, 4.17 provide that a total disability rating may be assigned where there is one disability ratable at 60 percent or more, or where there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability too bring the combined rating to 70 percent or more. I. RESIDUALS OF A RIGHT ANKLE FRACTURE VA outpatient treatment entries dated from September 1988 to November 1991 reported that an open reduction of the appellant's right ankle was performed after he fractured it in October 1990 and was treated with immobilization but continued to complain of motion difficulty and right ankle pain when walking. The examiner observed foot edema with moderate tenderness over the right medial malleolus. The appellant had dorsiflexion to 5 degrees; plantar flexion to 12 degrees; eversion and inversion to 5 degrees with difficulty moving his toes. He received physical therapy until May 1991. He walked unassisted with mild limping and good tolerance. His range of motion improved to dorsiflexion to 15 degrees; plantar flexion to 20 degrees; eversion to 10 degrees and inversion to 5 degrees. His muscle strength was 70- 80 percent. He continued to complain of right leg swelling and walking difficulty in April 1991. The appellant was admitted for removal of medial malleolus screws in May 1991. A VA examination was conducted in May 1992. The appellant complained of swelling in his right ankle. He used a walking cane for ambulation and claimed to be receiving physical therapy. The examiner observed healed, adherent surgical scars in both lateral and medial aspects of his ankle with limitation of motion. There was ankylosis of the joint in 15 degrees plantar flexion. The examiner diagnosed status post surgery of a right ankle fracture with retained orthopedic hardware. The appellant's right ankle fracture residuals are rated pursuant to 38 C.F.R. Part 4, Diagnostic Code 5270. Diagnostic Code 5270 provides that ankylosis in plantar flexion of less than 30 degrees warrants a 20 percent disability rating; in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees, a 30 percent evaluation is warranted; and in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity, a 40 percent evaluation is warranted. After review of the above and consideration of 38 C.F.R. §§ 4.10, 4.45, and 4.59, which directs, in essence, that the functional impairment of the body as a whole resulting from the identified disabilities must be taken into account, including pain on movement, in arriving at the appropriate disability evaluation, the Board concludes that the right ankle fracture residuals, which include ankylosis in 15 degrees plantar flexion, are appropriately evaluated as warranting a 20 percent disability evaluation. II. HYPERTENSION A December 1989 treatment entry reported an assessment of essential hypertension treated with a low fat diet. The appellant's blood pressure reading was 170/110. A February 1990 entry noted that the appellant's blood pressure was under control. An April 1990 cardiology examination noted no significant heart disease. A January 1991 blood pressure reading was 120/90 and 120/90 in April 1991; 151/99 and 130/100 in October 1991; and 130/100 and 120/80 in November 1991. A May 1992 VA examination reported that the appellant had regular heart rhythm. His blood pressure was 160/100 and a diagnosis of hypertension was noted. The appellant's hypertension is rated under 38 C.F.R. Part 1.104 Diagnostic Code 7101. Diagnostic Code 7101 provides that diastolic pressure of predominantly 100 or more warrants a 10 percent disability evaluation; a 20 percent evaluation is called for if the diastolic pressure is predominantly 110 or more with definite symptoms; a 40 percent evaluation is called for if the diastolic pressure is predominantly 120 or more and moderately severe symptoms are present; and a 60 percent disability evaluation is called for if the diastolic pressure is predominantly 130 or more and severe symptoms are present. The evidence does support a diastolic pressure predominantly in the 100 range. The Board therefore concludes that the appellant's hypertension is appropriately rated at 10 percent disabling. III. LUMBAR MYOSITIS - DEGENERATIVE OSTEOARTHRITIS OF THE SPINE WITH SPONDYLOSIS A December 1989 radiology report indicated that there was sacralization of the left transverse process of L5 and spondylitic changes of some lumbar vertebrae. The appellant complained of lumbar pain during a May 1992 VA examination. The examiner observed a flattening of the lumbar lordosis. There was pain to pressure over the vertebral spinous processes and paravertebral muscles with evidence of severe spasms. The appellant had painful and limited movement. He had back flexion to 60 degrees; extension to 0 degrees; lateral flexion to 20 degrees; and rotation to 30 degrees left and right. The examiner diagnosed degenerative osteoarthritis of the spine with spondylosis and lumbar paravertebral myositis residuals. The appellant's lumbar myositis is evaluated pursuant to Diagnostic Codes 5003-5021. Diagnostic Code 5003 provides that where degenerative arthritis is established by x-ray findings, and a compensable limitation of motion is not found, a 10 percent rating is for application for each group of minor joints affected by limitation of motion objectively confirmed by findings such as painful motion. The appellant has reported painful motion in his spine. However, we are of the opinion that the disability now shown is more appropriately rated based on limitation of motion. Diagnostic Code 5292 calls for a 10 percent disability evaluation for a slight limitation of motion of the lumbar spine; a 20 percent disability evaluation for a moderate limitation; and a 40 percent disability evaluation for a severe limitation of motion of the lumbar spine. 38 C.F.R. 4.71a Diagnostic Code 5292. The limitation of extension of the lumbar spine is complete, and flexion is limited to 60 degrees whereas the normal range is to 95 degrees, with lateral flexion one-half of normal. With the application of 38 C.F.R. § 4.7 (1993), a 20 percent evaluation would be more appropriate. IV. NASAL PTERYGIUM (0 percent) Nasal pterygium of the right eye was noted on the appellant's May 1992 VA examination. The Diagnostic Code requires that the disability evaluation for nasal pterygium be based upon a loss of vision, if any. 38 C.F.R. 4.84a Diagnostic Code 6034. However, no loss of vision was noted and the Board finds that the appellant's nasal pterygium is appropriately rated as 0 percent disabling. V. LEFT NEPHROLITHIASIS (0 percent) A December 1989 VA treatment entry reported that the appellant complained of pain in the left side of his waist and that he had difficulty voiding. A December 1989 radiology report noted an approximately 2mm. calculus in his right kidney. A history of left nephrolithiasis was diagnosed during an April 1990 VA examination and reported on a June 1991 treatment entry. A May 1991 radiology report noted a minute calcification overlying the right renal shadow, representing nephrolithiasis in "most probability." The appellant's nephrolithiasis is rated as hydronephrosis. The diagnostic code calls for a 10 percent disability evaluation for mild manifestations, consisting of an occasional attack of colic, not infected and not requiring catheter drainage; a 20 percent evaluation is warranted for moderate manifestations, consisting of frequent attacks of colic, requiring catheter drainage; and a 30 percent disability evaluation is warranted for moderately severe manifestations, consisting of frequent attacks of colic with kidney infections and functional impairment. 38 C.F.R. 4.115a Diagnostic Code 7508, 7509 (1993). After review of the evidence, the Board finds that, based upon his lack of overt symptomatology, the appellant's nephrolithiasis does not meet the requirements for a compensable evaluation. VI. BENIGN PROSTATIC HYPERTROPHY (0 percent) A December 1989 radiology report noted prostatic calcifications. May 1991 abdominal x-rays revealed course calcifications in the region of the prostate that "might" represent prostatic calcification. The examiner's impression was prostatic calcifications. Prostate gland injuries, infections, hypertrophy and prostate post-operative residuals are rated as chronic cystitis, depending upon the functional disturbance of the bladder. 38 C.F.R. 4.116 Diagnostic Code 7527 (1993). Chronic cystitis calls for a 0 percent disability evaluation for mild symptoms; a 20 percent disability evaluation is warranted for moderate pyuria, with diurnal and noctural frequency; a 40 percent disability evaluation is warranted for severe symptomatology with urination at intervals of 1 hour or less and contracted bladder; and a 60 percent disability evaluation is warranted when incontinence exists, requiring constant wearing of an appliance. 38 C.F.R. 4.115a Diagnostic Code 7512 (1993). The appellant's prostatic hypertrophy is manifested by x-ray evidence of calcifications and is otherwise asymptomatic. Therefore, the Board finds that a 0 percent evaluation, for no more than mild symptoms is warranted. VII. STATUS POST EXPLORATORY LAPAROTOMY (0 percent) An April 1990 VA examination reported that the appellant gave a history of an exploratory laparotomy in 1968 after an automobile accident. The examiner noted a healed midline scar. He diagnosed status post exploratory laparotomy. The appellant's residuals of an exploratory laparotomy, which consist of a healed midline scar, are rated based upon the limitation of function of the part affected. 38 C.F.R. 4.118 Diagnostic Code 7805 (1993). As no limitation of function is noted, the Board concludes that a 0 percent disability evaluation is warranted. VIII. EXOGENOUS OBESITY (0 percent) A February 1990 VA treatment entry reported that the appellant and his wife received diet counseling. The appellant was diagnosed as having mild to moderate exogenous obesity. No gastrointestinal problems were identified that would interfere with his diet compliance and he received regular counseling. The appellant's exogenous obesity is rated by analogy to hyperthyroidism. 38 C.F.R. § 4.20 (1993). The schedular criteria for hyperthyroidism calls for a 0 percent disability evaluation for hyperthyroidism in remission; a 10 percent evaluation for moderate symptoms with fatigability; a 30 percent evaluation for moderately severe symptoms consisting of sluggish mentality and other indication of myxedema, decreased levels of circulating thyroid hormones; a 60 percent evaluation for severe symptoms under "pronounced", but somewhat less marked, with decreased levels of circulating thyroid hormones; and a 100 percent evaluation for pronounced symptoms with a long history and slow pulse and decreased levels of circulating thyroid hormones. 38 C.F.R. § 7903 (1993). The appellant's exogenous obesity which merely requires dieting for control, does not warrant a 10 percent disability evaluation for moderate symptoms with fatigue. IX. UMBILICAL HERNIA (0 percent) An umbilical hernia was diagnosed in December 1989. An April 1990 VA examination reported that the appellant gave a history of hernia with pain on sneezing. A May 1991 VA medical treatment entry reported that the appellant complained of pain and was to be hospitalized the following week. A VA hospitalization summary reported that the appellant received a reparation of umbilical hernia in November 1991. The surgery was performed without complication. The schedular criteria for a postoperative ventral hernia call for a 0 percent disability evaluation for healed postoperative wounds with no disability when no belt is indicated; a 20 percent disability evaluation is warranted for a small hernia, not well supported by a belt under ordinary conditions, or a healed hernia with weakening of the abdominal wall and indication for a supporting belt; a 40 percent evaluation is warranted for a large hernia that is not well supported by a belt under ordinary conditions; and a 100 percent disability evaluation is warranted for a massive, persistent severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall that is inoperable. 38 C.F.R. 4.114 Diagnostic Code 7339. As the appellant's surgery for umbilical hernia was successful and his post-operative wounds healed without noted difficulty, a 0 percent disability evaluation is warranted. ANALYSIS The appellant does not have a permanent and total disability identified in 38 C.F.R. § 4.15, or as provided in the Schedule for Rating Disabilities. The appellant's disabilities do not meet the criteria set forth in 38 C.F.R. § 4.15, or as provided in the Schedule for Rating Disabilities. Furthermore, although we have found that 20 percent is warranted for the low back disability, the appellant's disabilities do not meet the criteria set forth in 38 C.F.R. § 4.16, 4.17, since the combined disability evaluation is 40 percent, and there is no single disability which is ratable at 60 percent or more, or two or more disabilities with one ratable at 40 percent and sufficient additional disability to bring the combined rating to 70 percent or more. Pursuant to 38 C.F.R. § 3.321(b)(2), a permanent and total disability evaluation may be assigned where the evidence of record establishes that the appellant, for pension purposes, fails to meet the percentage standards of the rating schedule but is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors. The evidence indicates that the appellant is 64 years old and has a high school education. He is skilled as a laborer. The physical disabilities are considered to be significant, and the Board believes that in view of the appellant's age, educational and vocational background, more than marginal employment would not be feasible. In weighing the evidence of record, particularly the medical evidence regarding the appellant's right ankle ankylosis and low back pathology in light of his employment history as a construction worker, the Board concludes that the preponderance of the evidence warrants the appellant's claim for a permanent and total disability evaluation for pension purposes. ORDER A permanent and total disability evaluation for pension purposes is granted. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.