BVA9501203 DOCKET NO. 92-16 151 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from September 1971 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO). It was the subject of a February 1993 Board remand decision and was returned to the Board in November 1994. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran is permanently and totally disabled for VA pension purposes. It is asserted that the veteran experiences constant pain in his feet which creates mental stress. It is further contended that these conditions are too severe for him to continue working. 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 a preponderance of the evidence is against the finding of a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran, who was born in October 1952, has reported three years of high school education and occupational experience as an assistant in home care service, a clerk, and as a bus driver. He has indicated that he last worked in October 1990. 3. The veteran's permanent disabilities are residuals of a fracture of the left heel, evaluated as 20 percent disabling, arthritis of the left ankle, evaluated as 10 percent disabling, residuals of a fracture of the right heel, evaluated as 10 percent disabling, residuals of a fracture of the right thumb, evaluated as noncompensably disabling, and a psychiatric disability, evaluated as 10 percent disabling. The combined rating for the veteran's disabilities is 50 percent. 4. The veteran's polysubstance abuse is a result of his own willful misconduct. 5. The veteran's disabilities which are not of misconduct etiology do not permanently preclude him from engaging in substantially gainful employment considering his age, education, and employment experience. CONCLUSION OF LAW The veteran is less than 100 percent disabled and he is not unemployable by reason of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The veteran's representative has requested that the appeal again be remanded to obtain the examinations requested in the February 1993 Board remand. The record reflects that the veteran was scheduled for a VA general medical examination and social and industrial survey in April 1993, but failed to report. He was again scheduled for VA orthopedic, neurology, and psychiatric evaluations and a social and industrial survey in January 1994, but again failed to report. During his November 1991 personal hearing before a hearing officer at the RO, he indicated that he had been denied Supplemental Security Income benefits, and an August 1992 VA hospital discharge summary indicates, in substance, that the veteran had been denied Social Security benefits. Reports of examinations for Social Security purposes, conducted in June 1992, have been obtained, as well as VA clinical records dated in 1977, 1989, 1991, and thereafter. This appeal has been remanded once for the purpose of accomplishing the examinations for which remand is again sought. The duty to assist is not a one-way street and since the veteran has failed to report for examinations for which he was scheduled, the VA has fulfilled, to the extent possible, its duty to assist. With respect to the contention that the Social Security examinations are not contemporaneous, the Board notes that the rating action which was appealed was in August 1991, and the reports of those examinations are dated in June 1992. The Board is satisfied that all relevant facts which may be developed have been, and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Olson v. Principi, 3 Vet.App. 480 (1992). Disabilities which have been identified clinically include residuals of a fracture of the left and right heels, arthritis of the left ankle, residuals of a fracture of the right thumb, borderline personality disorder, and reactive depression with chronic habitual polysubstance dependence. With respect to chronic habitual polysubstance abuse, a VA hospital discharge summary, relating to a period of hospitalization from late December 1989 to mid-January 1990, reflects that the veteran used marijuana occasionally. The report of a June 1992 private psychiatric examination states that the veteran acknowledged that he was imprisoned for two years for possession for sale, but denied the use of drugs and alcohol. An August 1992 VA hospital discharge summary includes the diagnosis of reactive depression with chronic habitual polysubstance dependence. None of the evidence indicates that the veteran's polysubstance abuse is other than of willful misconduct origin. Therefore, any disability relating to his polysubstance abuse may not be considered in determining his entitlement to a permanent and total disability rating for pension purposes. 38 C.F.R. § 3.301 (1993). The report of the June 1992 private psychiatric examination states that the veteran reported that he felt depressed constantly. He indicated that he had injured his heels and felt constant pain in his right foot. He stated that he had problems concentrating and felt drowsy from medication for pain such as Motrin. He acknowledged problems with concentration and memory, but denied panic attacks, obsessive-compulsive thoughts, audiovisual hallucinations, troubling thoughts, suicidal or homicidal ideation, eating problems, and paranoid ideation. He stated that he was not depressed all the time, but his energy was low. He indicated that he had no prior psychiatric inpatient treatment or outpatient treatment. He stated that his only medication was Motrin. On mental status examination, he was pleasant and cooperative and had good eye contact. He was oriented in all three spheres and his memory was intact. His concentration and mathematical abilities were intact, as were his insight and judgment. His similarities and proverbs were intact, and his intelligence was average based on his vocabulary and fund of knowledge. His mood was normal and affect was congruent with mood. His stream of thought was normal and there was no looseness of association, flight of ideas, or formal thought disorder or bizarre or unusual behavior. The diagnoses included no psychiatric diagnosis. The examiner stated that from a psychiatric standpoint, the veteran should be able to understand, carry out, and remember simple instructions. He should be able to respond appropriately to co-workers and supervisors, but possibly not to the general public. He should be able to respond appropriately to the usual work situation and deal with changes in a structured and supportive work setting. An August 1992 VA hospital discharge summary states that that was the first neuropsychiatric hospitalization for the veteran, who entered with a report of feeling that he had depression, based on viewing a television program on the subject. He was described as extremely hostile, intrusive and argumentative. He left, against medical advice, after 2 days. The diagnoses at the time of discharge included borderline personality disorder and reactive depression with chronic habitual polysubstance dependence. The RO has evaluated the veteran's psychiatric disability as 10 percent disabling. This would appear to be an accurate evaluation in light of the evidentiary record which indicates that the veteran may have some emotional tension or other evidence of anxiety which produces mild social and industrial impairment to an extent that he might not respond appropriately to the general public, but could respond appropriately in a work environment. Definite impairment has not been indicated in light of the June 1992 examination which indicates no psychiatric diagnosis. The veteran has testified that his August 1992 hospitalization was for major depression, but the clinical evidence does not support this assertion and his testimony is not competent because such a diagnosis requires medical expertise. Layno v. Brown, 6 Vet.App. 465 (1994). Therefore, 10 percent is the highest disability rating which may be assigned for any ratable psychiatric disability. 38 C.F.R. §§ 4.7, 4.132 (1993). With respect to the right thumb, a November 1988 VA hospital discharge summary states that the veteran was seen with a fractured right thumb which he incurred while attempting to strike an individual in the head. He was placed in a thumb splint. The discharge diagnosis was right thumb Bennett's fracture. The report of a March 1990 X-ray of the veteran's hands and wrists states that joint tissues and soft tissues appeared normal. There were no dislocations or fractures. The impression was unremarkable hands and wrists. The report of a June 1992 examination by a private neurologist does not indicate complaint or finding with respect to the veteran's right thumb. Therefore, as disability residual to a fracture of the right thumb is not indicated, the noncompensable evaluation has been appropriately assigned. 38 C.F.R. § 4.7, Part 4, Codes 5299-5224 (1993). During his testimony at personal hearings, the veteran has indicated that bilateral calcaneal fractures are his primary disabilities. The record reflects that in December 1989, he fell from the roof of a one-story building. At the time of his fall he was unemployed. A VA hospital discharge summary reflects that he was hospitalized for 20 days from late December 1989 until mid-January 1990. During that time, he underwent an open reduction and internal fixation of the right calcaneus fracture. The discharge diagnosis was bilateral calcaneal fractures. In April 1991, the veteran underwent a left subtalar fusion and VA clinical records reflect that the postoperative diagnosis was left subtalar arthritis, status post calcaneal fracture. The report of a June 1991 VA examination states that the veteran had a Fiberglas cast on the left ankle. Examination of the right foot indicated that pulses were two plus. Range of motion of the right foot was accomplished in pedal flexion to 35 degrees and dorsiflexion to 4 degrees. It was noted that the veteran was pending surgery to remove orthopedic hardware. X-rays of the veteran's left foot revealed status post screw fixation of the left calcaneus to the talus for subtalar joint arthrodesis. The fracture fragments appeared in anatomical alignment. X-ray of the chest revealed marked overexpansion of lungs. No diagnosis was offered with respect to the veteran's lungs. The diagnoses also included status post fracture of both calcanei with the left still in a Fiberglas cast and the right with minimum to mild flexion restriction. A June 1992 report of private X-rays of the veteran's feet states that with respect to the right foot, the veteran had placement of compression plates and screws for the fracture of the calcaneus and the talus, metatarsal bones, tarsal bones, and phalanges were normal. No fracture line was identified which was suggestive of complete healing. X-rays of the left foot revealed placement of compression screws for fusion of the talus and calcaneus. Sclerotic changes of the talocalcaneal joint were demonstrated without joint space identified. The metatarsal and tarsal bones were normal. The impression with respect to the left foot was that the findings were consistent with placement of compression screws for fusion of the talocalcaneal joint of the left foot. The report of a June 1992 private neurology examination states that the veteran complained of bilateral pain centered over the medial and lateral calcanei. He reported that the pain was worse on the right than the left and had electric-like pain with associated paresthesia over the lateral aspect of the left foot. He indicated that he had been using a cane since 1990 because pressure on the right heel caused increased pain. Without a cane, he stated could walk less than one block. With a cane, he had to rest after 2 to 3 blocks. The veteran indicated that he was not taking any medication. He stated that he last worked in 1989 as a clerk and that he spent his days sitting, watching television, listening to the radio, and doing some chores. He stood 5 feet 8 1/2 inches tall and weighed 145 pounds. Examination of his feet revealed mild bilateral hammertoe deformity. There was a 10-degree valgus deformity, bilaterally. Examination of the left ankle revealed a 3-centimeter surgical scar distal to the lateral malleolus. He complained of tenderness to palpation primarily over the surgical scar. Inversion was limited to 5 degrees, dorsiflexion to 10 degrees, and plantar flexion and eversion were normal. Examination of the right ankle revealed scars over the calcaneus with tenderness primarily over the lateral calcaneal scar. Inversion was 0 degrees, dorsiflexion 5 degrees, and plantar flexion and eversion were normal. He had a slight to moderate right leg gait antalgia. He could not toe and heel walk secondary to pain and his tandem gait was moderately impaired with a tendency to fall to the right. Upper and lower extremity strength was 5/5 and symmetrical. The veteran reported decreased sensation to pin and soft touch over the distribution of the right calcaneal nerve, but sensation was otherwise intact. The lower extremity reflexes were 2/4 and symmetrical, as were the upper extremity reflexes. His toes were downgoing, bilaterally. The impression was status post bilateral calcaneal fractures and probable right calcaneal neuropathy, secondary to the fracture. The examiner commented that he believed that the veteran's use of a cane resulted in less pain, but there was no weakness to necessitate the use of the cane. With a cane, the veteran could probably stand and walk 2 to 4 hours out of an 8-hour day in 15- to 20-minute intervals. He should not climb, balance, or work at heights. He would probably have difficulty operating foot controls. He could sit without limits and he could occasionally bend and stoop. The veteran had unrestricted use of his upper extremities. He could push and pull, manipulate objects, use tools and perform repetitive fine coordinated movements with his fingers. He could occasionally lift 30 pounds and frequently lift 15 pounds. The 10 percent evaluation for arthritis of the left ankle was apparently assigned on the basis of a May 1990 VA X-ray which states that there was narrowing of the ankle joint. Since some limitation of motion of the left ankle has been indicated, a 10 percent evaluation was assigned under the provisions of 38 C.F.R. § 5003 (1993). In order for a 10 percent evaluation to be assigned for the right ankle, arthritis of that ankle would have to be shown, or moderate limitation of motion would have to be exhibited, since neither ankylosis nor malunion have been shown. The record reflects that limitation of motion with respect to the right ankle is minimal to mild, not moderate. Nor has marked limitation of motion been shown with respect to the left ankle, or other applicable criteria which would warrant an evaluation greater than the 10 percent assigned. 38 C.F.R. Part 4, Codes 5270, 5271, 5272, 5273. The veteran's bilateral foot disability is most appropriately rated under Diagnostic Code 5284. Moderate residuals of foot injuries warrant a 10 percent evaluation and moderately severe residuals warrant a 20 percent evaluation. The left heel has been assigned a 20 percent evaluation and the right a 10 percent evaluation. X-rays reveal that, with respect to the right foot, no fracture line is identified which is suggestive of complete healing. Although the veteran has reported that pain is greater on the right, X-rays of the left foot identify sclerotic changes of the talocalcaneal joint without joint space being identified. Minimal paresthesia relative to the right foot has also been identified, but even with consideration of the veteran's complaints of right foot pain and paresthesia, more than moderate residuals of injury to that foot have not been substantiated on a clinical basis. Rather, complete healing is indicated. Therefore, moderately severe residuals are not shown, and even with consideration of the provisions of 38 C.F.R. §§ 4.7 and 4.40 (1993), an evaluation greater than 10 percent for disability associated with the right foot is not warranted. With respect to the left foot, a 20 percent evaluation has been assigned. With consideration of the clinical evidence supporting pathological change in the left foot, specifically X-rays, the 20 percent evaluation is warranted on the basis that moderately severe residuals have been shown to exist. 38 C.F.R. Part 4, Code 5284 (1993). In this case, the veteran does not meet the percentage requirements for disability pension benefits. That is, while he does have disabilities of the feet which are of a common etiology and which may be combined to a 40 percent rating, he does not have sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 4.16, 4.17. Further, the evidence does not establish that the veteran is unemployable by reason of his disabilities, age, occupational background, and other related factors. The veteran claims his primary disability is his feet, but he was unemployed even before he injured them. The evidence does not establish that disability of his feet, or any other disability, separately, or in combination, are so severe as to permanently prevent him from engaging in all types of substantially gainful employment. In particular, he experiences no deficit with respect to the upper extremities, can sit without limits, and can stand and walk 2 to 4 hours out of an 8-hour day. He would be able to respond appropriately to co-workers and supervisors. While he has somewhat limited vocational experience and an 11th grade education, he was born in October 1952 and his job skills involve fields which do not require that he perform strenuous activities or remain on his feet. It is apparent that his polysubstance abuse is a significant factor and it may not be considered in determining pension eligibility. Accordingly, under these circumstances, a permanent and total disability rating on the basis of either average impairment in earning capacity or on an extraschedular basis is not warranted. 38 C.F.R. §§ 3.321(b)(2), 4.15 (1993). The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to a permanent and total disability rating for pension purposes is not established. The appeal is denied. ROBERT D. PHILIPP 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.