BVA9503670 DOCKET NO. 93-18 803 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board ATTORNEY FOR THE BOARD R. J. Rolfsen, Jr., Counsel INTRODUCTION The veteran served on active duty from January 1951 to January 1954. This appeal stems from a February 1993 decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is unable to work due to the severity of his multiple disabilities. He notes that his private physician has pronounced him unable to work. DECISION OF THE BOARD The Board of Veterans' Appeals (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 supports granting a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for the disposition of the veteran's appeal has been obtained. 2. The veteran served during the Korean Conflict. 3. The veteran was born in August 1932 and has reported completing two years of college. He last worked in 1979 and has reported occupational experience as an insurance salesman and as a car salesman. 4. The veteran's disabilities include coronary artery disease, a lumbar spine disorder, a hiatal hernia, a cervical spine disorder, left carpal tunnel syndrome, a right hand disorder and ureteral calculi. 5. The veteran's disabilities, in light of his age, education, and occupational background, preclude him from pursuing a substantially gainful occupation. CONCLUSION OF LAW The criteria for a permanent and total disability rating for pension purposes are met. 38 U.S.C.A. §§ 101(9), 1502(a), 1521(a), 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist the veteran in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. Some of the basic facts are not in dispute. The veteran was born in August 1932 and has reported completing two years of college. He last worked in 1979 and has reported employment experience as an insurance salesman and as a car salesman. The veteran's primary disabilities are coronary artery disease assigned a disability evaluation of 30 percent, a lumbar spine disorder assigned a disability evaluation of 20 percent, a hiatal hernia assigned a disability evaluation of 10 percent, a cervical spine disorder assigned a disability evaluation of noncompensable, left carpal tunnel syndrome assigned a disability evaluation of noncompensable, a right hand disorder assigned a disability evaluation of noncompensable and ureteral calculi assigned a disability evaluation of noncompensable. The combined evaluation is 50 percent. Under the statute, the Secretary shall pay to each veteran who served for ninety days of more during a period of war and who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct, pension at the rate prescribed by this section. 38 U.S.C.A. § 1521. Permanent and total disability for pension purposes is deemed to be present if a veteran's disabilities are productive of a total schedular rating under the "average person" standard of pension eligibility, or the disability ratings meet the schedular requirements for the assignment of a total disability rating under the "unemployability" standard of pension eligibility. 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 4.15, 4.16, 4.17. A permanent and total disability rating for pension purposes may also be granted on an extraschedular basis if the disability requirements based on the percentage standards of the rating schedule are not met, but the veteran is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors. 38 C.F.R. § 3.321(b)(2). The veteran served on active duty from January 1951 to January 1954. This period of service includes 90 days or more of service during a period of war. See 38 U.S.C.A. § 101(9). Thus, the threshold requirement of 90 days or more service during a period of war has been met. Accordingly, the Board will proceed to determine whether the veteran meets the permanent and total disability standards alluded to above. 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 4.15, 4.16, 4.17. As noted above, the veteran's primary disabilities are coronary artery disease, a lumbar spine disorder, a hiatal hernia, a cervical spine disorder, left carpal tunnel syndrome, a right hand disorder and ureteral calculi. The Board has reviewed the evidence as to these disabilities and finds that they are not productive of a total schedular rating under the "average person" standard of pension eligibility. 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15. Also, his combined disability rating does not meet the schedular requirements for the assignment of a total disability rating under the "unemployability" standard of pension eligibility. 38 C.F.R. §§ 4.16, 4.17. However, the Board finds that the veteran's disabilities, in light of his age and occupational experience, preclude him from pursuing a substantially gainful occupation and warrant an extraschedular granting of a permanent and total disability rating for pension purposes. 38 C.F.R. § 3.321(b)(2). In support of this finding the Board notes the May 1993 statement from Dale Russwurm, M.D., in which Dr. Russwurm reported treating the veteran for coronary artery disease. He also reported that the veteran was unable to work. The Board notes the veteran's positive cardiac history of myocardial infarctions and the extensive medical records showing treatment during recent years for the cardiac and the other disorders. With respect to this determination, where the evidence was so evenly balanced so as to raise doubt as to any material issue, such doubt was resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER A permanent and total disability rating for pension purposes is granted. JAMES R. ANTHONY 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.