BVA9505707 DOCKET NO. 93-10 447 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating for the postoperative residuals of a pilonidal cyst, currently evaluated as 10 percent disabling. 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disability. 3. Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from July 1952 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 1992 and October 1992 rating decisions of the Department of Veterans Affairs (VA) Denver, Colorado, Regional Office (RO). With respect to the instant appeal, the Board notes that the veteran has argued the merits of a claim for service connection for a back condition, for which service connection has previously been denied. As no appeal of that adverse decision was filed, the claim is presently in a final, disallowed status. Since the veteran has submitted no new and material evidence with respect to reopening that claim, most notably no medical evidence or opinion relating his present back condition to service, the Board shall limit its consideration to the issues certified on appeal. In this respect, the Board observes that the veteran has indicated his disagreement with the denial of VA Vocational Rehabilitation and Educational benefits. As neither of these issues are presently in appellate status, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service-connected pilonidal cyst is more severely debilitating than his current 10 percent evaluation reflects. He reports that he experiences constant pain in his lower spine, and alleges that he is unable to stand or sit for an extended period of time. The veteran essentially maintains that he is unable to work due to his physical disabilities. It is requested that the veteran be granted the benefit of every reasonable doubt. 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 preponderance of the evidence is against granting an increased rating for a pilonidal cyst, a total evaluation based on individual unemployability due to service-connected disability, and a permanent and total disability evaluation for pension purposes. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The veteran's residuals of a pilonidal cyst are manifested by a well-healed scar that is intermittently irritated with no evidence of ulceration or active drainage. 3. The veteran's service connected disability does not preclude him from holding substantially gainful employment. 4. The veteran's degenerative arthritis and degenerative disc disease of the lumbosacral spine are manifested by no more than slight limitation of motion and low back pain. 5. The veteran has a history of colon polyps, which are presently nonsymptomatic. 6. The veteran's nonservice-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 10 percent for the post-operative residuals of a pilonidal cyst have not been satisfied. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7804 (1994). 2. The veteran does not meet the initial criteria for entitlement to a total rating based on unemployability due to service-connected disability. 38 U.S.C.A. §§ 1502, 5107 (a) (West 1991); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.15, 4.16 (1994). 3 The requirements for entitlement to a permanent and total disability 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, 4.17 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased rating The veteran essentially contends that his service-connected residuals of a pilonidal cyst are more severely disabling than his current 10 percent evaluation reflects. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The rating schedule recognizes that a veteran's disability evaluation may require reratings in accordance with changes in his physical condition. It is thus essential, in evaluating a disability, that it be viewed in relation to its history. 38 C.F.R. § 4.1. The veteran was granted service connection for the postoperative residuals of a pilonidal cyst by rating action of June 1984. The decision was based upon evidence including testimony offered by the veteran at a personal hearing, photocopies of letters indicating that the veteran had been hospitalized while in service, a lay statement, and evidence of a related 1957 hospitalization. In support of the instant claim, the veteran has reported receiving treatment for his medical condition at a VA facility and from Dr. Merri L. Olinger, a chiropractor. Dr. Olinger provided a statement in April 1992, reporting that he had treated the veteran for several years, primarily with respect to a chronic low back condition. Outpatient medical records obtained from the Denver VA Medical Center (VAMC) reflect treatment for complaints relative to degenerative disk disease of the lumbosacral spine, with a noted history of colonic polyps. No complaints or treatment relative to the residuals of a pilonidal cyst is of record. The veteran underwent a VA examination in July 1992. The veteran related that he experienced intermittent discomfort and irritation in the area of his pilonidal cyst surgery which he treated with hydrocortisone, as necessary. He had not noted any drainage from that area. A three-centimeter, well-healed scar was noted in the veteran's perianal area, with no evidence of ulceration or active drainage. The veteran's service-connected disability has been rated pursuant to Diagnostic Code 7804, for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118. The maximum rating under that section is 10 percent, which the veteran is currently assigned. Although the veteran is seeking an increased rating for this condition, he has failed to report any specific complaint or symptom reflective of increased disability. The cyst has not necessitated his hospitalization, nor has it resulted in marked interference with employment. 38 C.F.R. § 3.321. As such, there is no basis upon which the Board may grant an increased rating on either a schedular or extra-schedular basis. Therefore, an increased rating for the postoperative residuals of a pilonidal cyst is denied. II. Total rating The law provides that a total disability rating based on individual unemployability due to a service-connected disability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history, Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991); impairment caused by nonservice-connected disabilities, Hatlestad v. Derwinski, 1 Vet.App. 164, 170; and the loss of use of work-related functions due to pain, Ferraro, 1 Vet.App. at 330. The veteran's sole service-connected disability is the postoperative residuals of a pilonidal cyst, which have been found to be no more than 10 percent disabling. As such, he does not currently satisfy the minimum percentage requirements for individual unemployability. See 38 C.F.R. § 4.16(a). However, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Where a veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). Total disability will be considered to exist where there is present any disability that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue through the life of the disabled person. 38 C.F.R. § 3.340(b). The Board must, therefore, evaluate whether there are circumstances in the veteran's case, apart from any nonservice-connected conditions, which would justify a total disability rating based on unemployability. See Van House v. Brown, 4 Vet.App. 361, 363 (1993). However, extra-schedular consideration is unavailing as there is no evidence of any impediment to the veteran's industrial ability resulting from his service-connected disability. Furthermore, factors such as the service-connected disability resulting in marked interference with employment or necessitating frequent hospitalizations are not present. 38 C.F.R. § 4.16(b). Therefore, a total rating based on individual unemployability due to service-connected disability is not warranted. III. Permanent and total rating The VA shall pay pension to a veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct. 38 U.S.C.A. § 1521(a). There are three alternative bases upon which permanent and total disability for pension purposes may be established. One way is to establish, by use of the appropriate diagnostic codes of the VA Schedule For Rating Disabilities, that the veteran has a lifetime impairment which is sufficient to render it impossible for the "average person" to follow a substantially gainful occupation. 38 U.S.C.A. § 1502(a)(1); 38 C.F.R. § 4.15. That is, each disability is rated under the appropriate diagnostic code, and then combined to determine if the veteran holds a combined one-hundred percent schedular evaluation for pension purposes. 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, will be considered to be permanent and total disability. 38 C.F.R. § 4.15. Where a veteran does not satisfy the criteria for a combined schedular one-hundred percent evaluation for pension purposes, he may qualify for a permanent and total disability rating for pension purposes if he has a lifetime impairment which precludes him from securing and following substantially gainful employment. 38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. § 4.17. Full consideration must be given to unusual physical or mental effects in individual cases. 38 C.F.R. § 4.15. However, if there is only one such disability, it must be ratable at sixty percent or more; if there are two or more disabilities, there must be at least one disability ratable at forty percent or more, and sufficient additional disability to bring the combined rating to seventy percent or more. If the veteran is considered permanently and totally disabled under these criteria, he is then awarded a one-hundred percent schedular evaluation for pension purposes. 38 C.F.R. §§ 4.16(a), 4.17 (1993). Finally, even if the ratings for a veteran's disabilities fail to meet the just described percentage standards, but the veteran is unemployable by reason of his or her disabilities, age, occupational background, and other related factors, a permanent and total disability rating for pension purposes is authorized to be granted on an extra-schedular basis. 38 C.F.R. §§ 3.321(b)(2), 4.17(b) (1994). The veteran's disabilities include the postoperative residuals of a pilonidal cyst, which has been found to be 10 percent disabling, as well as his two nonservice-connected disabilities, degenerative arthritis with degenerative disc disease of the lumbosacral spine and a history of colon polyps. His spinal disability has been assigned a 10 percent rating pursuant to Diagnostic Codes 5003-5292, for degenerative arthritis. 38 C.F.R. § 4.71. That code provides that a 10 percent evaluation is to be assigned with X-ray evidence of involvement of two or more major joints or minor joint groups. A 20 percent rating is warranted with evidence of the same criteria, with occasional incapacitating exacerbations. However, that section also provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code. VA outpatient treatment records document that in February 1990 the veteran denied having any acute problems. In April 1990 he presented for a follow-up evaluation for degenerative joint disease. He reported experiencing back pain that varied in relation to activity; however, he denied having any problems, and took Motrin as needed. The veteran's sole complaint offered at his next evaluation in December 1990 was of back pain; he denied having any other problems. It was documented that an April 1989 colonoscopy had been negative for gastrointestinal problems. The examiner indicated that the evaluation had been negative for abnormalities. The veteran next presented for general care in March 1991. He reported having mild back pain, for which he continued to take Motrin, with good relief. No other complaints were offered, and the examination was normal. He was assessed with stable back pain, and a history of colonic polyps. He was next seen in November 1991. At that time, he reported he was doing well, with no complaints, and had taken medication for high cholesterol which had lowered his level. After examination, the veteran's back condition was assessed as stable. Dr. Olinger reported that he had treated the veteran for a chronic low back condition for several years. He stated that the veteran demonstrated a structural weakness of the lumbosacral spine, and required structural support to prevent acute exacerbation or possible orthopedic intervention. At the time of a VA examination in July 1992, it was noted that radiological examination in 1984 had revealed degenerative arthritis as well as degenerative disc disease. The veteran complained of experiencing daily low back pain without radiculopathy. He reported that he was unable to be as active as he had once been because of the pain, and that Motrin relieved the pain somewhat. The veteran reported receipt of chiropractic care, and that he took a warm bath twice daily to help alleviate the pain. He indicated that prolonged walking or standing appeared to exacerbate his back symptoms. When examined, decreased ranges of motion of the lumbosacral spine were noted. The veteran had flexion forward to 85 degrees, extension backward to 25 degrees, lateral flexion to 40 degrees bilaterally, and rotation to 35 degrees, bilaterally. Neurological examination was within normal limits, and the veteran was able to heel and toe walk. Deep tendon reflexes in his lower extremities were two plus and brisk, with full strength in all muscle groups tested. The relevant diagnosis was of degenerative arthritis and degenerative disk disease of the lumbosacral spine with residuals of discomfort and decreased range of motion. An X-ray report of that date noted that the veteran had minimal osteoarthritis at the facet joints at the lumbosacral junction, as well as small osteophytes identified at the second, fourth and fifth interspaces. Given that degenerative arthritis has been established by radiological studies, the veteran is appropriately rated pursuant to Diagnostic Code 5292, for limitation of motion of the lumbar spine. A 10 percent rating is warranted with slight limitation, 20 percent for moderate limitation, and 40 percent for severe limitation of motion. The Board uses the Veterans Administration's Physician's Guide for Disability Evaluation Examinations, (March 1, 1985), Chapter 2, Section VII, subsection 2.23 for guidance as to the average normal ranges of motion of the lumbar spine. See Allin v. Brown, 6 Vet.App. 207, 214 (1994). The Physician's Guide indicates that the average normal lumbar flexion forward is 95 degrees, extension backward is 35 degrees, lateral flexion is 40 degrees and rotation is 35 degrees. On recent examination, the veteran demonstrated limitation of motion in only two ranges of motion, forward flexion and extension backward. In the two ranges in which limitation was manifested, the veteran was only lacking 10 degrees of full flexion forward and extension backward. The Board observes that, in both instances, the veteran's affected ranges of motion were diminished by less than one-third. The veteran was able to heel and toe walk, had full strength with intact deep tendon reflexes, and manifested no neurological deficits. Therefore, it cannot be said that the limitation of motion manifested by the veteran was more than slight, and his currently assigned rating of 10 percent is appropriate. In this regard, it is noted that the veteran has only required outpatient treatment on a biyearly basis, and has offered no complaints other than mild back pain, with no radiculopathy. The veteran has recently been assessed by VA treating physicians as having a stable back condition. With respect to the veteran's history of colonic polyps, there is no evidence that the veteran currently has any polyps, or that they are symptomatic. He has offered no gastrointestinal complaints nor reported any related symptomatology, and treatment records only note polyps by history. As there is a complete dearth of evidence that the veteran suffers from any residuals of his colonic polyps, there is no evidence of any current disability, and the veteran is appropriately evaluated a noncompensably disabled. See 38 C.F.R. § 4.114, Diagnostic Code 7343. As the veteran has two disabilities which the Board finds are each 10 percent disabling, he has a combined rating of 20 percent. See 38 C.F.R. § 4.25. Therefore, he does not have a total schedular rating, nor does he satisfy the criteria for a schedular permanent and total evaluation. 38 C.F.R. §§ 4.16(a), 4.17. The veteran was born on July [redacted] 1934, and is presently 60 years old. He has reported that he has a high school education, and first became too disabled to work full-time in July 1991. The veteran reported in an April 1984 examination report that he had worked as a press operator at International Business Machines Corporation (IBM) for almost 12 years, and then in purchasing for almost 13 years. In a September 1992 Application for Increased Compensation Based on Unemployablity, the veteran reported that he had last worked as a buyer for IBM. He indicated that he had not attempted to obtain employment since that time. The veteran stated that he was unable to stand, sit or walk for prolonged periods, and that there are some days that he was unable to get out of bed. However, in his November 1992 notice of disagreement, the veteran expressed a desire to enroll in a saddle school as a saddle-maker. Interestingly, in a March 1992 Income-Net Worth and Employment Statement, he reported that he had already been working as a saddle-maker for six out of the last 12 months, indicating that he had lost six months due to illness. In reviewing the medical evidence of record, the Board finds an absence of objective medical evidence reflecting the severe degree of back disability alleged by the veteran. Although he has reported that he is unemployable due to his back condition, the sole manifestations of his back condition are pain and minimal limitation of motion of his lumbar spine. The Board observes that the 10 percent evaluation presently assigned the veteran for his nonservice-connected degenerative arthritis and disc disease of the lumbosacral spine contemplates compensation for pain. See 38 C.F.R. § 4.59. The veteran has never needed emergency treatment, hospitalization, or surgery for his back complaints. His VA treatment has consisted of scheduled visits with rather conservative care, and his back pain has been consistently assessed as stable. The data of record do not reflect that the veteran's activity would be so limited as to render him unable to follow substantially gainful employment consistent with his occupational history. Limitation of function to the extent that the veteran would be rendered unemployable is not clinically substantiated in the record, as illustrated by the maximum 20 percent evaluation that all of the veteran's disabilities would warrant, combined, which appropriately reflects his overall impairment. It is noted that no examiner has ever found the veteran to be unemployable, or severely disabled. Upon consideration of the combined effect of the veteran's disabilities, in addition to his age, education and occupational history, the Board is not persuaded that the veteran is permanently and totally disabled. An allowance of pension benefits, therefore, is also not warranted based upon subjective criteria. 38 C.F.R. §§ 3.321, 4.15. As such, the record does not present an approximate balance of positive and negative evidence with respect to the merits of the veteran's claim, and the benefit of the doubt is not for application in this case. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER An increased rating for the postoperative residuals of a pilonidal cyst is denied. A total rating based on individual unemployability due to service connected disability is denied. A permanent and total disability evaluation for pension purposes is denied. WARREN W. RICE, JR. 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.