BVA9507268 DOCKET NO. 90-47 890 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. D. Turano, Counsel INTRODUCTION The veteran served on active duty from October 1972 to September 1974. This matter came before the Board of Veterans Appeals (Board) from an August 1990 decision by the New Orleans, Louisiana, Regional Office (RO) which denied the veteran's claim for a permanent and total disability rating for pension purposes. A notice of disagreement was received in September 1990. The statement of the case was issued in September 1990. A substantive appeal was received in October 1990. The case was remanded by the Board in March 1991, October 1991 and May 1994. The record demonstrates that a 10 percent disability evaluation has been assigned for the right knee disorder. In the Board order of October 1991, the RO was requested to adjudicate the intertwined issue of entitlement to an increased rating for this disability. Consequently, in a rating action dated in July 1993, the RO denied an increased rating for this disability and notified the veteran of this decision and of his appellate rights. A timely notice of disagreement has not been submitted as to this issue and thus the issue listed on the title page of this decision is the only issue properly certified for review. However, in a written presentation dated in February 1995 the veteran's representative addresses potential issues, not in appellate status, and as such these statements are referred to the RO for any action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in substance, that entitlement to a permanent and total disability for pension purposes is warranted. It is asserted that the veteran is permanently precluded from obtaining or maintaining substantially gainful employment as a result of his service connected right knee disability and several non- service connected disabilities, including a low back disability and a psychiatric disorder. 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 permanent and total disability rating for pension purposes is not warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained, to the extent possible. 2. The veteran, who was born in March 1950, has completed four years of high school and reports that he last worked in March 1984. He has had occupational experience as a carpenter. 3. Service connection has been established for post operative medial lateral meniscectomy of the right knee, evaluated as 10 percent disabling. 4. The veteran's primary non-service connected disabilities consist of a psychiatric disorder, a low back disability, thrombocytopenia and tinea versicolor. 5. Alcohol and cocaine dependence, as well as marijuana abuse are disorders that are the result of the veteran's own willful misconduct. 6. The veteran's combined service connected and non-service connected disorders, when combined, are found to be evaluated at 50 percent. 7. The veteran does not meet the schedular criteria for pension purposes and is not precluded from substantially gainful employment due to the above disabilities not of willful misconduct origin. CONCLUSION OF LAW The veteran is not permanently and totally disabled as a result of disabilities not the result of his own willful misconduct. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.301, 3.340, 3.342 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds, initially, that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, we find that the claim presented is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply to the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Several attempts have been made to conduct a Department of Veterans Affairs (VA) examination but, in part, due to the veteran's incarceration, these attempts have been unsuccessful. As such, a determination of this appeal will be based on the evidence currently of record. A review of this record indicates that the veteran has been previously hospitalized due, in part, to alcohol and cocaine dependence as well as marijuana abuse. As a preliminary matter, it should be noted that the governing regulations provide that disability pension is not payable for any condition due to the veteran's own willful misconduct. 38 C.F.R. § 3.301(b) (1994). Additionally, the regulations set forth that the simple drinking of alcohol is not of itself willful misconduct. The deliberate drinking of a known poisonous substance will be considered willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol will not be considered of willful misconduct origin. Moreover, the isolated and infrequent use of drugs by itself will not be considered willful misconduct, though the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. The RO has established that the veteran's alcohol and substance dependence are of willful misconduct origin. However, it should be recognized that it appears that his alcohol and cocaine dependence may be in remission. In order to establish a basis for the determination that a claimant is permanently and totally disabled, the evidence must show that the veteran is unemployable. The United States Court of Veterans Appeals (Court) has rendered several opinions which affect the development and analysis of claims for permanent and total disability ratings for pension purposes. In Roberts v. Derwinski, 2 Vet.App. 387, 389 (1992), the Court found that each of the veteran's claimed disabilities must be identified and rated under the VA Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability. After identifying all the veteran's disabilities and assigning an evaluation it is then necessary to assess whether the veteran is unemployable as a result of a lifetime disability under 38 C.F.R. § 4.17 (1994), or if the veteran is not unemployable, whether he suffers from a lifetime disability which would render it impossible to the average person to follow a substantially gainful occupation, as contemplated by 38 U.S.C.A. § 1502(a) (West 1991) and 38 C.F.R. § 4.15 (1994). Brown v. Derwinski, 2 Vet.App. 444 (1992). The evidence indicates that the veteran was born in March 1950, has completed four years of high school and reports that he last worked in March 1984. Further, he reports that he has had occupational experience as a carpenter. Moreover, service connection has been established for post-operative medial lateral meniscectomy of the right knee. This is the veteran's only established service connected disability. The veteran's primary non-service connected disabilities consist of a psychiatric disorder, a low back disability, thrombocytopenia and tinea versicolor. As noted, alcohol and cocaine dependence, as well as marijuana abuse are found to be disorders that are the result of the veteran's own willful misconduct and as such, may not be considered in determining the total evaluation for assignment or the degree of industrial impairment which may be medically demonstrated. None of the disabilities identified, by their nature, require a finding of permanent and total disability under the provisions of 38 C.F.R. § 4.15 (1994). That is, the veteran does not have the loss of use of the hands or feet, and he is not blind. In regard to the veteran's service connected right knee disorder which is rated at 10 percent under 38 C.F.R.§ 4.71a, Diagnostic Code 5259 (1994), the Board notes that the veteran did not appeal the July 1993 RO denial of an increase so the issue of an increase in the 10 percent rating of the right knee for compensation purposes is not in appellate status. The Board is only evaluating this disorder for pension purposes and its determination has no effect on the compensation evaluation. In evaluating the veteran's service connected right knee disorder, the Board finds that this disorder is appropriately rated in accordance with 38 C.F.R.§ 4.71a Diagnostic Code 5259, (1994), which provides a 10 percent evaluation in cases in which the veteran underwent removal of the semi-lunar cartilage. Under Diagnostic Code 5260, a 10 percent evaluation is in order where there is limitation of flexion of a leg to 45 degrees; under Diagnostic Code 5261, a 10 percent evaluation is in order where there is limitation of extension of a leg to 10 degrees. A 20 percent evaluation would require that the limitation of motion of the knee approximate a limitation of flexion to 30 degrees or a limitation of extension to 15 degrees. The evidence available fails to demonstrate any significant limitation of motion of the veteran's right knee. As such, the Board finds that the 10 percent evaluation established for the veteran's service connected right knee disability is proper. In evaluating the veteran's non-service connected psychiatric disorder, the Board finds that this disability is properly evaluated in accordance with 38 C.F.R.§ 4.132 (1994). This disability has been diagnosed as major depression. The evidence fails to demonstrate that the veteran has any delusions or hallucinations and, apparently, the primary manifestation of this disorder is depression. On examination in July 1990, his insight and judgment were found to be limited. Based on the findings on this examination, as well as hospital and outpatient medical records, the Board finds that the veteran's major depression results in no more than definite social and industrial impairment. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.§ 4.132 Diagnostic Code 9405 (1994). Under the VA's Schedule for Rating Disabilities, psychoneurosis are evaluated in accordance with uniform criteria set forth in 38 C.F.R. § 4.132, Diagnostic Codes 9400-9411. According to this regulation a 30 percent rating is appropriate when this disability causes definite impairment in the ability to establish or maintain effective and wholesome relationships with people; and with psychoneurotic symptoms which result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment; a 50 percent rating is appropriate when the ability to establish or maintain effective or favorable relationships with people is considerably impaired; and in which by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. It should be noted that the Court has held that the term "definite" in 38 C.F.R.§ 4.132 (1993) was qualitative in character and invited the Board to construe the term in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for its decision. 38 U.S.C.A.§ 7104(d)(1) (West 1991); Hood v. Brown, 4 Vet. App. 301 (1993). In a precedent opinion dated in November 9, 1993, the General Counsel of the Department of Veterans Affairs concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board and the RO are bound by this interpretation of the term "definite." 38 U.S.C.A.§ 7104(d)(1) (West 1991). With respect to the veteran's claimed back disability, the Board recognizes that the veteran has received periodic outpatient treatment due to low back pain. VA outpatient treatment records dated in 1990 and 1991 indicate that the veteran had a limitation of motion of the low back due to chronic low back pain. On the latest VA examination report, dated in July 1990, the veteran had forward flexion of the low back to 45 degrees and backward extension to 12 degrees. Lateral flexion was to 40 degrees with rotation to 22 degrees. The motions of the back, at this time, were recorded as being painful. The Schedule for Rating Disabilities provides evaluation of the low back based upon the limitation of motion medically demonstrated. The governing rating criteria provide for a 20 percent disability evaluation for moderate limitation of motion and a 40 percent evaluation for severe limitation of motion of the lumbar spine. 38 C.F.R.§ 4.71a (1994). In this case, the Board finds that the veteran exhibits moderate limitation of motion of the lumbar spine. This determination is based on the range of motion studies available and includes consideration of the fact that the veteran has painful motion. Based on these clinical findings and the rating criteria, the evidence fails to demonstrate that severe range of motion is demonstrated or approximated. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.§§ 4.7, 4.40, 4.71a Diagnostic Code 5292 (1994). The evidence further reflects that the veteran has tinea versicolor and thrombocytopenia. These disabilities have not been shown to cause any appreciable impairment to the veteran's ability to engage in substantially gainful employment. Hospital records in 1988 indicate that after being treated with antifungal agents, there was some improvement in the overall condition of the tinea versicolor. During the course of this hospitalization laboratory tests showed platelet levels of 60,000 but on routine follow-up during the remainder of this hospitalization these levels significantly improved and were deemed to be stable. Tinea versicolor is rated by analogy to eczema as provided under 38 C.F.R.§ 4.20 (1994). This disorder, when as in this case, is shown to be slight warrants a non compensable disability evaluation. The most recent evidence fails to show any significant skin disorder to warrant a compensable evaluation. As well, thrombocytopenia is rated analogous to purpura hemorrhagica under 38 C.F.R.§ 4.117 Diagnostic Code 7705 (1994). However, in the absence of any evidence showing symptoms or impairment associated with this disorder, the Board finds that a non compensable evaluation is in order. Pertinent regulations provide that in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1994). As here, the requirements for a compensable evaluation for thrombocytopenia are not met or approximated. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.§§ 4.7, 4.31, 4.117 Diagnostic Code 7705 (1994). Upon review of all the evidence, the Board finds that the above mentioned disabilities represent the complete disability picture of the veteran for consideration of his claim. According to the provisions of 38 C.F.R. § 4.25 (1994), the evaluations assigned above result in a combined disability evaluation of 50 percent. Consequently, the Board concludes that the veteran does not meet the regulatory requirements related to pension benefits as set forth in 38 C.F.R. §§ 4.16, 4.17 (1994). He is not shown to have at least one disability rated as 60 percent disabling or at least one disability rated at least 40 percent with additional disability rated such that the combined evaluation is 70 percent or more. Further, the evidence of record does not support a finding that the veteran has disabilities not of willful misconduct origin of such severity that the average person would be precluded from engaging in substantially gainful employment. The disability picture presented does not demonstrate impairment to such a degree that would restrict one's activities or impede one's abilities to any significant extent. Moreover, the Board is unable to conclude that the veteran is unable to maintain or obtain substantially gainful employment. The disabilities shown are not so debilitating so as to render him unemployable. Given the veteran's relatively young age, and the degree of impairment shown by his disabilities not of willful misconduct origin, the veteran is not rendered permanently and totally disabled. The evidence fails to show that any significant limitations on his activities have been imposed or recommended. Moreover, according to the provisions set forth in 38 C.F.R. § 3.321(b)(2) (1994), where the evidence of record establishes that the veteran is basically eligible but fails to meet the disability requirements based on the percentage standards of the Schedule for Rating Disabilities, but is found unemployable, the veteran may be granted a permanent and total rating for pension purposes. However, as noted above, there is no support in the medical record for a finding that the veteran is unemployable as the result of disabilities not the result of his own willful misconduct nor have these disorders necessitated frequent periods of hospitalization. Accordingly, a determination on an extraschedular basis is not in order. In reaching these conclusions the Board finds that the evidence of record is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107 (West 1991). The evidence favorable to the veteran is far outweighed by the medical record showing that he is not so impaired as to be precluded from substantially gainful employment. ORDER Entitlement to a permanent and total disability rating for pension purposes is denied. E. M. KRENZER 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.