Citation Nr: 0000914 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 90-02 798A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected pension benefits from October 24, 1989 to December 2, 1996. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from December 1961 to March 1966, November 1970 to April 1973, June 1980 to November 1983, and August 1986 to October 1987. His appeal comes before the Board of Veterans' Appeals (Board) from a December 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran had high school equivalency degree and training in urban forestry, tree care, heavy equipment operation, meat cutting, locksmithing, and small engine repair during the applicable period. 3. The veteran's service-connected disabilities between October 24, 1986 and December 1996 included prostatitis and scars of the right knee and left hand and thumb, both evaluated at zero percent disabling. His nonservice- connected disabilities during that time included residuals of a left ankle fracture, evaluated at 20 percent disabling; a psychiatric disorder, variously diagnosed as post-traumatic stress disorder (PTSD) and obsessive compulsive tendencies with depressive episodes, evaluated at 10 percent disabling; residuals of cervical spine injury, evaluated at 10 percent disabling; and headaches, evaluated at 10 percent disabling. He also had nonservice-connected disabilities at zero percent evaluations for sinus infection and allergies; skin condition; mid-lower spine injury; left leg numbness; bilateral hand numbness; chest pain; dyspepsia and irritable colon; history of inflammatory arthritic syndrome; ringworm; hearing loss; and deviated nasal septum. The RO evaluated his combined rating at 40 percent. 4. The veteran's disabilities are not shown to be of such severity as to have precluded the performance of all types of substantially gainful employment between October 24, 1989 and December 2, 1996. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits from October 24, 1989 to December 2, 1996 have not been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 4.15, 4.16, 4.17, 4.25, 4.71a, 4.96, 4.114, 4.115a, 4.118, 4.124a, 4.130, Diagnostic Codes 5003, 5290, 5292, 5293, 6100, 6502, 6510, 7099, 7307, 7319, 7399, 7804, 7805, 7806, 7527, 7899, 8100, 8512, 8520, 9410, 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The initial question before the Board is whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. Id. In this case, the Board finds that the veteran has presented a claim that is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that the VA has fulfilled the duty to assist him in the development of his claim and that the evidence of record is sufficient to equitably decide this appeal. Applicable Laws and Regulations A disability pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities not the result of his own willful misconduct. 38 U.S.C.A. § 1521(a). There are three alternative regulations upon which a finding of permanent and total disability for pension purposes may be based. First, by utilizing the VA Schedule For Rating Disabilities (rating schedule), a veteran may establish the presence of 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. Permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (1999). Each disability must be rated and combined under the appropriate Diagnostic Code (DC) to determine whether the veteran holds a combined 100 percent schedular evaluation for pension purposes. The rating is based primarily upon the average impairment in earning capacity; that is, upon the economic or industrial handicap which must be overcome and not from the individual success in overcoming it. Id. Alternatively, a veteran may establish permanent and total disability for pension purposes even absent a combined 100 percent schedular evaluation by proving that he has a lifetime impairment precluding him from securing and following substantially gainful employment. 38 U.S.C.A. § 1502; 38 C.F.R. § 4.17. Full consideration must be given to unusual physical or mental defects in individual cases. 38 C.F.R. § 4.15. However, if there is only one such disability, it must be ratable at 60 percent or more; if there are two or more disabilities, there must be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If the veteran is considered permanently and totally disabled under these criteria, he may be awarded a 100 percent schedular evaluation for pension purposes if he is unemployable. 38 C.F.R. §§ 4.16(a), 4.17. Even if the veteran's disability ratings fail to meet the aforementioned percentage standards, a permanent and total disability rating for pension purposes may be granted on an extra-schedular basis if the veteran is unemployable by reason of his or her disabilities, age, occupational background and other related factors. 38 C.F.R. §§ 3.321(b)(2), 4.17(b). In this case, the veteran's service-connected disabilities between October 24, 1989 and December 1996 included prostatitis and scars of the left hand and thumb. The RO evaluated his prostatitis and scars at zero percent disabling. His nonservice-connected disabilities during that time included residuals of a left ankle fracture, evaluated at 20 percent disabling; a psychiatric disorder, variously diagnosed as PTSD and obsessive compulsive tendencies with depressive episodes, evaluated at 10 percent disabling; residuals of a cervical spine injury, evaluated at 10 percent disabling; and headaches, evaluated at 10 percent disabling. He had zero percent evaluations for sinus infection and allergies; skin condition; residuals of a mid-lower spine injury; left leg numbness; bilateral hand numbness; chest pain; dyspepsia and irritable colon; history of inflammatory arthritic syndrome; ringworm; hearing loss; and deviated nasal septum. The RO assigned a combined disability evaluation of 40 percent. Prostatitis The RO service connected the veteran's prostatitis in March 1989 and assigned a noncompensable evaluation under DC 7527. That code provides that prostate infections should be rated as voiding dysfunction or urinary tract infection, whichever is predominant. In this case, voiding dysfunction is predominant because the veteran has reported frequent urination. Under 38 C.F.R. § 4.115a, a 10 percent evaluation is warranted for daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent evaluation is warranted for daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent evaluation, the maximum allowable, is warranted for daytime voiding interval less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. The rating schedule provides that in every instance where the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.20. In this case, the veteran underwent a VA examination in January 1988. He reported that he urinated two or three times per night, and he did not feel as though he could completely empty his bladder. He had hesitancy and difficulty beginning urination. He told the examiner that he was taking medication to reduce his symptoms. Outpatient treatment records dated August 1989 indicate that the veteran complained of urinary problems and frequent urination. The examiner reported that the veteran's bladder did not appear to be enlarged. The prostate was somewhat enlarged, boggy and tender on rectal examination. In October 1989, the veteran again complained of urinary frequency and urgency. The examiner felt that the veteran had chronic prostatitis. The veteran was again seen for voiding problems in November 1989. He related to the examiner that he had significant slowing of his urinary stream and increased urinary frequency. The veteran, however, apparently was uncomfortable with the examination and he left it before further testing was performed. A VA examiner in May 1990 indicated that the veteran likely had a history of prostatic hypertrophy with slow urinary stream and inability to finish urination. He stated that it was recommended that he should have a transurethral resection of the prostate. The examiner diagnosed the veteran with a history of benign prostatic hypertrophy. The veteran testified, albeit briefly, in April 1990 concerning his prostatitis during an RO hearing. He reiterated that he had a urinary problem and he stated it may have been annoyed by his involvement with heavy equipment. In light of the above medical evidence, the Board finds that the noncompensabe evaluation was proper for the period between October 24, 1989 and December 2, 1996. Although there is no evidence in the claims file concerning the veteran's daytime voiding interval, he has reported that at night he urinated two to three times soon before the applicable timeframe. However, there is no clinical evidence that this nighttime interval is the result of his prostatitis. The record does not contain further information concerning the veteran's urination interval, either in the day or the night. Thus, the requirements for a ten percent evaluation have not been met, and the Board will assign a noncompensable evaluation. The Board has also considered the veteran's disability under the voiding dysfunction provision of 4.115a. That provision provides that a 20 percent evaluation is warranted if the disability requires the wearing of absorbent materials which must be changed less than two times per day. The veteran has reported that he has difficulty in starting and stopping his urine stream; however, there is no evidence that he must wear absorbent materials as a result. Thus, a zero percent evaluation is warranted under this code pursuant to 38 C.F.R. § 4.20. The Board has also considered the veteran's prostatitis under the obstructed voiding provision. A zero percent evaluation is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. A 10 percent evaluation is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1) post void residuals greater than 150 cc., 2) uroflowmetry, markedly diminished peak flow rate (less than 10cc/sec), 3) recurrent urinary tract infections secondary to obstruction, and 4) stricture disease requiring periodic dilation every two to three months. However, although the veteran has complained of hesitancy and trouble finishing his urinations, his urinary problems did not require dilation one to two times per year between October 24, 1989 and December 2, 1996. Thus, the veteran does not meet the requirements for a zero percent evaluation under this provision. Scars The RO service connected the veteran's scars and assigned a zero percent evaluation under DC 7805. That provision directs that the evaluation should be based on limitation of function of the part affected, in this case the right knee and left hand (plus left thumb). 38 C.F.R. § 4.118. During a January 1988 VA examination, the veteran reported that he cut his knee in the past with a chain saw. However, he said that it was not a problem at that time. He also said the scars did not bother him during a May 1990 VA examination, either the right knee scar or scars from a wrench accident to his left hand and thumb. Thus, a zero percent evaluation for pension purposes for scars is warranted under 38 C.F.R. § 4.118 because there is no evidence of record that there is loss of function of the right knee or left hand and thumb, and the veteran does not contend as such. Rather, he has stated that it was not a problem and they did not bother him during the relevant time frame. The Board will also consider his scars under DC 7804, which provides a 10 percent evaluation for scars, superficial, tender and painful on objective demonstration. Again, this provision is inapplicable because the preponderance of the evidence does not reflect that the veteran suffers from pain as the result of his scars. Moreover, there was no objective demonstration as such. A psychiatric disorder, variously diagnosed as PTSD and obsessive compulsive tendencies with depressive episodes The RO evaluated the veteran's obsessive compulsive tendencies with depressive episodes at 10 percent for pension purposes under DC 9410. It also evaluated PTSD at zero percent. Diagnostic Code 9410 provides a zero percent rating for a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A rating of 10 percent is warranted for a mental condition causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or if symptoms are controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability evaluation is warranted for occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or the inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. In this case, an outpatient treatment report dated March 1990 reflects that the veteran telephoned the VA clinic and he sounded suicidal at the time. The examiner reported that the veteran was not suicidal at the time he was writing the treatment report. The veteran was taking Amitriptylline for his depression, according to a May 1990 VA examination report. The veteran underwent a psychiatric examination in June 1990. He complained of being depressed and isolated and having suicidal thoughts and frequent headaches. He was oriented as to time and place, and his recent and remote memory seemed to be fair. He denied having delusions or hallucinations, but the examiner reported the veteran had some paranoid ideas that people were trying to intrude into his affairs. His judgment was only superficially intact under very little stress. Although he did not offer a specific Global Assessment of Functioning (GAF) score, the examiner diagnosed recurrent major depression with suicidal thoughts and severe headaches. Outpatient treatment records dated February 1996 show that the veteran had obtained work cleaning a Drive-in parking lot, and he felt less depressed as a result. In May 1996, the veteran completed a depression measurement scale showing he had moderate to marked depression. A treatment record dated June 1996 reflects that the veteran had been off from work for a week; apparently, he was working as a tree trimmer during this period. The examiner recommended that he should not climb trees for his work for an additional week. The examiner also indicated that the veteran had mild to moderate depression. Records dated August 1996 show that both the veteran and examiner were frustrated over the rehabilitation system under which the veteran was attempting to improve on his life. The examiner stated that the veteran became very uptight and tense whenever bad news would come, and he was using a variety of medicines to control this problem and ease his pain. A medical note dated November 1996 suggests that the veteran was feeling depressed, tense, and anxious as the result of various nonmedical problems involving his financial status. Apparently, he had taken several telephone calls from creditors to whom he owed money, and he was not making much progress in his adult education classes. The examiner advised him not to use any of his money to keep a piece of property he had in South Dakota. The examiner indicated that the veteran had unresolved anger toward the government and government waste, and he suffered from tension and stress as a result. In December 1996, the veteran was apparently feeling better. An examiner stated at that time that the veteran had "been holding his own with the pain when I've gotten tough with him about not [giving him too much medication]." The veteran looked healthier, he was happier, and he was smiling. The claims file also contains numerous statements from friends, family members, and clients complementing the veteran on his hard work, dedication, and skills in the field of urban forestry. This evidence is probative of the veteran's ability to interact with other people and of his level of social and occupational impairment. The Board concludes that a 30 percent evaluation, and no more, is warranted for the period between October 24, 1989 and December 2, 1996. The Board is aware that he has contemplated suicide on several occasions during this time frame. However, the preponderance of the medical evidence is against a higher rating because the record does not show that he has a flattened affect, stereotyped speech, impaired memory, disturbances of motivation, and difficulty in establishing and maintaining effective work and social relationships. Rather, the veteran seems to interact with people at a fairly functional level based on the complementary statements from friends, family members, and clients. Although the June 1990 examiner diagnosed recurrent major depression, the veteran appeared to be significantly improved in December 1996. This evidence does not indicate that an evaluation in excess of 30 percent is warranted for the period between October 24, 1989 and December 1996. Residuals of cervical spine injury and history of inflammatory arthritic syndrome Although the Board will consider the veteran's residuals of cervical spine injury and history of inflammatory arthritic syndrome as separate disorders, it will discuss them in the same section for the sake of brevity because their symptomatologies largely overlap. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40; see also DeLuca v. Brown, 8 Vet.App. 202 (1995) (holding that when a veteran is rated under a code that contemplates limitation of range of motion, 38 C.F.R. §§ 4.40 and 4.45 must be considered, and any additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination must be noted). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and, (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45. The RO evaluated the veteran's residuals of cervical spine injury at 10 percent for pension purposes under DC 5290. That code provides a 10 percent evaluation for slight limitation of motion of the cervical spine. Moderate limitation of motion of the cervical spine warrants a 20 percent evaluation; severe limitation of motion warrants a 30 percent evaluation. 38 C.F.R. § 4.71a. The RO evaluated the veteran's history of inflammatory arthritic syndrome at zero percent for pension purposes under DC 5003. Under DC 5003, degenerative arthritis (hypertrophic or osteoarthritis) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DC's for the specific joint or joints involved (DC 5200, etc.). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC's, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under DC's 5013 and 5024, inclusive. 38 C.F.R. § 4.71a. A letter dated November 1989 from John F. Allenburg, D.C., reflects that the veteran needed to find some type of work, and probably training, in a field that would not be very stressful to the chronic spinal problems that he had at that time. Dr. Allenburg indicated that the veteran was interested in locksmith work and small engine or appliance repair, and that those types of employment were appropriate in his view. He reported, however, that that the veteran was no longer physically able to carry out the two types of work in which he had experience and special skills-tree trimming and heavy equipment operating. On physical examination, Dr. Allenburg reported that the veteran's trapezius muscles lateral to the base of the neck and scapulovertebral muscles were very hypertonic, as were thoracic spine extensors at mid and low thoracic levels. He elicited considerable tenderness on light pressure over either side of the cervical spine, especially at suboccipital levels, but also lower in the neck. Tender fibrous nodules were palpable within the hypertonic scapulae, especially on the left side. Dr. Allenburg said that the veteran had advanced cervical spine degenerative discopathy and chronic myofibrositis involving cervical and scapulovertebral muscles. During an April 1990 RO hearing, the veteran attributed the cervical spine injury to boxing while he was in the service and he said it was later aggravated by a car accident. He said he did not report this injury at the time of the boxing incident for fear of being separated from service on a medical discharge. The veteran said that he had been told that he had soft tissue damage plus complications from his boxing injury, and that arthritis had set in to the injury with some scarring which caused his headaches. But the veteran said that his back and neck never hurt; rather, the top of his shoulders and his head were in pain. The veteran corroborated this testimony during a May 1990 VA examination in which he told the examiner that he had pain radiating to his neck and shoulders since a boxing injury he sustained while in boot camp. When he was working it was better because he basically forgot about it. Outpatient treatment records dated January 1990 show that the veteran's neck had full range of motion. He touched his chest with his chin on forward flexion. He had rotation to 75 degrees bilaterally and lateral flexion was 45 degrees bilaterally. He had pain with palpation over his perispinal muscles and upper trapezius bilaterally. He had two trigger points that seemed to be causing the most pain. An X-ray of the cervical spine showed a little bit of lipping. The X-ray also revealed rather marked disc narrowing consistent with degenerative disc disease at the C5-6 level. The remaining bodies, posterior arches and disc spaces appeared normal. The veteran also had full range of motion of his neck in February 1990. He had palpable muscle spasm and tenderness in his trapezius and paraspinal muscles. The examiner assessed neck arthritis and muscle spasm. Outpatient treatment records dated March 1990 reflect that the veteran's range of motion of the neck was almost full. He flexed and touched his chin to his chest, 30 degrees of extension, 80 degrees of rotation, 30 degrees of head tilt. He was markedly tender in the low cervical spinous processes, C5 and C6, and minimally tender above and below. There was minor trapezial spasm bilaterally. A CT scan of the veteran's cervical spine in April 1990 showed that there were degenerative disc changes at the C5-6 level. There was slight generalized posterior protrusion as a result of the marginal spurring of the posterior margins of C5 and C6. This produced very minimal compromise of the spinal canal centrally; lateral recesses appeared adequate, although there could have been a marginal compromise of the interneural foramina on the left at that level. At the remaining visualized levels, there was minimal degenerative change and lateral recesses and neural foramina. The examiner's impression was that the veteran had some spurring posteriorly at the C5-6 level, with the potential for some compromise of the neural foramina, but he had no destructive lesions. The record contains medical evidence after December 2, 1996, but the Board will not consider this evidence because it is moot. The evidence before that time to October 24, 1989 shows that by a preponderance of the evidence, the veteran's residuals of a cervical spine injury do not warrant an evaluation in excess of 10 percent. The veteran has stated that he basically forgets about the pain in his neck during periods when he is working. Although he also stated that the pain is worse when he is not working, this statement seems to indicate that any neck pain he is feeling is due to stress, rather than residuals of an injury. As stated above, outpatient treatment records dated January 1990 showed that the veteran had full range of motion, and his neck also had full range of motion in February 1990. In March 1990 his range of motion was close to full, and the veteran was able to touch his chin to his chest with forward flexion. In light of all of these factors, the Board concludes that a 10 percent rating most appropriately approximates the symptomatology presented by the veteran's residuals of a cervical neck injury. Moreover, DC 5003 does not mandate that a higher evaluation is warranted for the veteran's disorder because the veteran does not have limitation of motion. The Board is also basing this decision on the fact that in this case, two or more major joints or two or more minor joint groups are not affected. Headaches The RO evaluated the veteran's headaches as 10 percent disabling for pension purposes under DC 8100. That code provides a 10 percent evaluation for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the maximum allowable, is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. During a January 1988 VA examination, the veteran reported that he did a lot of competitive boxing while he was in the service and he started getting headaches in 1963. He felt that these headaches were caused by his boxing, so he quit boxing. The headaches continued. He was told by a Navy corpsman that he would get kicked out if he talked about headaches, so "he got medicine under the table." He stated that he could get drugs from the corpsman, without going through the medical system and getting it on his record. He said that he was having a lot of trouble with headaches and he saw a chiropractor who told him that he had a neck injury. However, he said he was doing well with his headaches during this period. While he was in the Seabees from 1970 to 1973, he engaged in a fistfight with someone because of a loud radio that was causing him headaches, and his headaches began to be more severe at that point. He continued to take medicine from the corpsman without being formally seen in the medical clinic, and he reported that his headaches were constant and severe at this point. At the time of the January 1988 VA examination, the veteran reported that he could sometimes go for a few weeks without headaches bothering him, but quite often they were daily. He said he medicated himself with pills for his headaches, but not more than two or three times per week. According to an October 1988 letter from Le Ann M. Shea, D.C., the veteran was under treatment for chronic headaches. Treatment consisted of manual spinal adjustment, EMS, moist heat, cervical range of motion and manual traction, and myotherapy. His prognosis was fair, with some signs and symptoms persisting and exacerbations and remissions were to be expected which would require palliative care. Dr. Shea indicated that meat cutting and heavy machine operation required physical lifting and there should have been no question as to the unsuitability of these vocations for the veteran. Outpatient treatment records dated March 1990 suggest that the veteran's headaches were caused by his cervical disc problems. The examiner stated that there was a reasonable likelihood that his cervical disc problems were resulting in muscle spasm with tension headaches. However, the examiner told the veteran to have a neurologist evaluate his headaches further. The veteran reported in the April 1990 RO hearing that he could not finish locksmithing school because of his headaches. He said it increased the headaches to the point where he could not think or reason. He indicated that he would become irritable with other people because of his headaches. He did not indicate the duration of time between the onset of his headaches. Although there is a paucity of evidence available as to the duration of time between the onset of the veteran's headaches, the Board concludes that a 30 percent evaluation, and no more, is warranted. Apparently, loud noises aggravate the veteran's headaches. He has testified that he quit locksmithing school secondary to the headaches, and that they are causing him occupational impairment. However, the medical evidence of record does not show that his headaches are very frequently completely prostrating and prolonged attacks are productive of severe economic inadaptability. There has been no clinical finding that the veteran's headaches result in such impairment. Thus, the Board finds that a rating in excess of 30 percent is not warranted. Sinus infection and allergies The RO evaluated the veteran's sinus infection and allergies at zero percent under DC 6510. Under DC 6510, a zero percent evaluation is warranted for chronic pansinusitis detected by X-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation, the maximum allowable, is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.96. An incapacitating episode of sinusitis is defined as one that requires bed rest and treatment by a physician. See 38 C.F.R. § 4.96, Note following DC 6514. In a January 1988 VA examination, the veteran stated that he had sinus problems in the past, partially because of a broken nose and partially because of allergies. He also told the examiner that he had used an inhaler within the last year and that the inhaler had helped. A CT scan of the veteran's head in April 1990 was negative with paranasal sinuses normal. His ventricle system was normal in size and configuration. There were no masses or enhancing lesions present at that time. Because there is no medical evidence showing that the veteran was treated with antibiotics for an incapacitating episode lasting four to six weeks, the Board finds that a zero percent evaluation more closely approximates the veteran's symptomatology during the period between October 24, 1989 and December 2, 1996. Moreover, the record does not contain medical evidence that the veteran had three to six incapacitating episodes per year. Rather, the CT scan in April 1990 was negative. As a result of the lack of compensable symptomatology shown during the applicable time frame, the Board concludes that the zero percent evaluation was proper. Residuals of mid-lower spine injury The RO evaluated the veteran's residuals of mid-lower spine injury at zero percent for pension purposes under DC 5293. Intervertebral disc syndrome is noncompensably evaluated when it is postoperative and cured. A 10 percent evaluation is warranted for mild intervertebral disc syndrome. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks, with intermittent relief. A 60 percent evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. § 4.71a. In January 1988, the examiner noted that the veteran's back was straight. His gait was normal and his carriage was good. During a May 1990 VA examination, the veteran stated that his low back pain was not much of a problem and he denied a history of injury to his lower back. He stated that he mainly noticed it when he was climbing. On physical examination, there was no tenderness over the lumbosacral spine or paraspinal area. He was able to forward flex 80 degrees, right and left flex 30 degrees and extend 30 degrees. In light of the veteran's statement that his low back was not much of a problem for him, the Board concludes that a zero percent evaluation is warranted for his residuals of a mid- lower spine injury. Moreover, a medical progress note dated June 1996 suggests that the veteran was able to climb trees, and he stated that he mainly noticed his low back when he was climbing. The physical examination in May 1990 showed no tenderness over the lumbosacral area at that time, and a physical examination in January 1988 also did not reveal any low back problems. Considering this medical evidence, the Board concludes that an evaluation of zero percent is warranted under DC 5293. The Board will also consider the veteran's disorder under limitation of motion of the lumbar spine. Under DC 5292, slight limitation of motion warrants a 10 percent evaluation. A 20 percent evaluation is warranted with moderate limitation of motion, and a 40 percent evaluation is warranted for severe limitation of motion. 38 C.F.R. § 4.71a. Again, because there does not appear to be any limitation of motion of the veteran's lumbar spine, the Board concludes that a zero percent evaluation is warranted pursuant to 38 C.F.R. § 4.31. Left leg and bilateral hand numbness The RO evaluated the veteran's left leg and bilateral hand numbness at zero percent for pension purposes under DC's 8520 and 8512, respectively. Although there is no DC for left leg numbness, the RO rated the veteran's left leg numbness analogous to paralysis of the sciatic nerve pursuant to 38 C.F.R. § 4.20 because the symptomatology of the disorders is closely related. Under DC 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under DC 8512, a 20 percent evaluation is warranted for mild incomplete paralysis of the lower radicular group. A 40 percent evaluation is warranted for moderate incomplete paralysis of the lower radicular group. A 50 percent evaluation is warranted for severe incomplete paralysis of the lower radicular group. A 70 percent evaluation is warranted for complete paralysis of all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand). 38 C.F.R. § 4.124a. On neurological examination by Dr. Allenburg in November 1989, the veteran's upper extremity tendon reflexes and motor functions were normal. A VA neurological examination of the veteran's upper and lower extremities in March 1990 was also normal. However, the veteran reported in an April 1990 RO hearing that he had numbness in his legs and arms. Considering that the clinical evidence shows that the veteran's extremities were essentially normal, the Board concludes that the veteran does not suffer from either incomplete or complete paralysis of the left leg or hands to warrant an evaluation higher than zero percent under DC's 8520 or 8512. The record contains two neurological examinations, one by a private chiropractor and the other by a VA examiner, which did not detect any significant abnormality during the period in question. Thus, the Board finds that zero percent evaluations are warranted for the veteran's left leg and bilateral hand numbness. Chest pain The veteran reported in an April 1990 RO hearing that he had chest pains when he was under stress. He also reported during a May 1990 VA examination that he had chest pain that was stress-related, and he said he had no history of any problems with his activity even when he was doing exertional things such as lifting weights. He told the examiner that he had no history of hypertension and that the pain came and went with stress. The examiner diagnosed a history of chest pain. The RO evaluated the veteran's chest pain at zero percent for pension purposes. The Board finds that although the veteran has complained of chest pain, his symptoms do not fit any of the criteria for a cardiovascular disorder under the rating schedule. The examiner in May 1990 apparently believed that the veteran had chest pains during periods of stress, but the veteran himself has stated that he has no problems on physical exertion with regard to his chest. Thus, a zero percent evaluation is warranted for the veteran's chest pain. Dyspepsia and irritable colon The RO evaluated the veteran's dyspepsia and irritable colon at zero percent. The Board will evaluate the veteran's dyspepsia and irritable colon by analogy under DC's 7307 and 7319. See 38 C.F.R. § 4.20. Under DC 7307, a 10 percent evaluation is warranted for chronic hypertrophic gastritis (identified by gastroscope) with small nodular lesions and symptoms. A 30 percent evaluation is warranted for chronic hypertrophic gastritis (identified by gastroscope) with multiple small eroded or ulcerated areas and symptoms. A 60 percent evaluation is warranted for chronic hypertrophic gastritis (identified by gastroscope) with severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.114. Under DC 7319, a zero percent evaluation is warranted for mild irritable colon syndrome (spastic colitis, mucous colitis, etc.); disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent evaluation is warranted for moderate irritable colon syndrome (spastic colitis, mucous colitis, etc.); frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation is warranted for severe irritable colon syndrome (spastic colitis, mucous colitis, etc.); diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114. A VA examination report of January 1988 shows that the veteran complained of epigastric distress, a sharp knife-like pain off and on, diffuse lower abdomen pain, and diarrhea and constipation. He did not have blood in his stools, but he had black stools. During a May 1990 VA examination, the veteran complained of a nervous stomach, this being periumbilical discomfort. The examiner diagnosed a history of irritable stomach. An outpatient treatment record dated February 1996 shows that the veteran was taking Senekot to help control his bowels. Considering the above VA examinations and the treatment record dated February 1996, the Board concludes that the veteran's dyspepsia and irritable colon syndrome warrant a zero percent evaluation under the applicable schedular criteria. The veteran has reported at least one episode of sharp abdominal pain. He also has a history of an irritable stomach, although he has never had blood in his stools. Although the veteran is taking medicine to help control his bowels, the zero percent evaluation is warranted because there is no medical evidence that the veteran has small nodular lesions, or small eroded or ulcerated areas and symptoms. Moreover, the preponderance of the evidence does not show that the veteran had more than occasional disturbances of bowel function between October 24, 1989 and December 2, 1996. Thus, the Board finds that a zero percent evaluation appropriately accounts for the symptomatology presented by the veteran's dyspepsia and irritable colon syndrome. Hearing loss The severity of a hearing loss disability is determined by applying the criteria set forth in 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85(a),(d). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Code 6100; Table VI (1998); 38 C.F.R. § 4.85(b) and (e), as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). The amended regulations changed the title of Table VI from "Numeric Designations of Hearing Impairment" to "Numeric Designations of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination." See 64 Fed. Reg. 25202 (May 11, 1999). Moreover, Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). In this case, the veteran reported during an April 1990 RO hearing that he had diminished hearing, but he thought that was likely due to his age. In January 1988, the examiner noted that the veteran's hearing was normal to whisper. There is no other clinical evidence of record concerning the veteran's hearing during the period between October 24, 1989 and December 2, 1996. However, there is an audiogram dated August 1986 that shows the veteran's hearing is essentially normal. The August 1986 audiogram does not indicate the veteran's percent of speech discrimination, but his exact pure tone threshold scores, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 -5 40 40 LEFT 0 0 0 40 45 His pure tone decibel loss averaged 18 in his right ear and 21 in his left ear. Based on this examination and the January 1988 VA examination, the Board concludes that the veteran had level I hearing acuity bilaterally during the applicable period. See 38 C.F.R. § 4.85, Table VIa. Thus, the Board finds that the veteran's hearing loss is appropriately evaluated at zero percent. Deviated septum The only clinical evidence of record concerning the veteran's deviated septum is a January 1988 VA examination during which the examiner noted that the veteran's nasal septum was deviated to the right. The RO assigned a zero percent evaluation for the veteran's deviated septum under DC 6502. That code provides that deviation of the nasal septum warrants a 10 percent evaluation with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.96. However, because there is no clinical evidence that the veteran has the requisite obstruction, the Board concludes that a zero percent evaluation more appropriately characterizes the veteran's deviated septum. Residuals of a left ankle fracture The RO evaluated the veteran's residuals of a left ankle injury in December 1989 as 20 percent disabling under DC 5271. That provision provides that a 10 percent evaluation is warranted for moderate limitation of motion of the ankle and a 20 percent evaluation, the maximum allowable, is warranted for marked limitation of motion of the ankle. During a January 1988 VA examination, the veteran reported that when he was in the Seabees in 1982, he fell when he was running across a field and he was in a cast for six weeks. Since that time, the ankle would give on him if he stood up too quickly. The ankle did not hurt, but it did not support him as well as it did before he fell. He also had some tingling in the left leg whenever he crossed his knees, and this was not the case before the fall. During a May 1990 VA examination, the veteran stated that he fractured his left ankle while on active duty in 1972 and that he notices problems with it when the weather changes or when he stands up to walk. The examiner stated that the left ankle was basically nontender to palpation. The veteran had range of motion of 10 degrees dorsiflexion and 40 degrees plantar flexion without pain. There was no pain on inversion or eversion. The patient had a negative straight leg raise at 70 degrees bilaterally. Based on the May 1990 VA examination, the Board concludes that a 10 percent evaluation is warranted for the veteran's residuals of a left ankle fracture. The Board notes that the rating schedule indicates that normal ankle dorsiflexion is 20 degrees and normal ankle plantar flexion is 45 degrees. See Plate II, 38 C.F.R. § Part 4. Thus, the May 1990 VA examination shows that the veteran's limitation of ankle motion is not marked; rather, a 10 degree loss of dorsiflexion and a 5 degree loss of plantar flexion constitutes moderate loss of motion. Moreover, the examiner in May 1990 specifically reported that there was no pain on either dorsiflexion or plantar flexion, and the ankle was nontender to palpation. In light of this examination, the Board finds that the 20 percent evaluation for residuals of a left ankle fracture assigned by the RO in December 1989 more appropriately reflects the veteran's symptomatology. Discussion The new ratings in effect for the veteran's disabilities result in a 70 percent combined disability evaluation in accordance with the provisions of 38 C.F.R. § 4.25. Under this provision, the veteran's disability evaluations are not added together numerically; instead, the 70 percent rating represents a combined evaluation based on consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by the less disabling conditions, if any, in the order or severity. See 38 C.F.R. § 4.25. As previously discussed, entitlement to pension benefits may be found if the veteran has a lifetime impairment which would render it impossible for an average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15. In this case, none of the veteran's disabilities constitute a permanent total disability. Moreover, a permanent and total disability rating is not warranted under applicable schedular criteria. During the period between October 24, 1989 and December 2, 1996, his disabilities were not representative of total disability as contemplated by 38 C.F.R. §§ 4.16, 4.17. In particular, the veteran does not have any single disability which is 40 percent disabling. Although he has a combined disability rating for the period in question of 70 percent, no one disability is evaluated at 40 percent. Thus, he does not fulfill the schedular requirements under this provision for the applicable time period. Entitlement to a Total Rating Based on Extra-Schedular Criteria As the veteran's disabilities collectively do not meet the percentage requirements of 38 C.F.R. § 4.16, the Board must determine whether the veteran is entitled to pension benefits based on subjective criteria, including age, education and occupational history. 38 C.F.R. §§ 3.321, 4.15. In this regard, the Board notes that the veteran is 56 years old at the time of this decision and he has a high school equivalency degree. The veteran testified in April 1990 that he had gone to vocational school for meat cutting and heavy equipment operation. He was also a heavy equipment operator in the Navy Seabees. The record contains extensive evidence that the veteran has education, training, and experience as a tree trimmer and in urban forestry. However, the record also contains evidence that the veteran was unable to perform these tasks in light of his disabilities. Specifically, the November 1989 letter from Dr. Allenburg indicates that the veteran was no longer able to physically carry on as a tree trimmer or as a heavy equipment operator. The letter also reflects that the veteran should develop skills not stressful to his back, and that he seemed to be interested in locksmithing and small engine or appliance repair. Indeed, the veteran took correspondence courses in locksmithing and small engine repair. Moreover, the record contains a Performance Appraisal dated June 1986 for the veteran's work at the Postal Service which shows he received "Superior" or "Clearly Outstanding" evaluations in all 23 ratable categories on the appraisal. Clients of the veteran's tree trimming business submitted various letters commending him on his performance and work ethic. Apparently the veteran worked in nursery-related jobs in July 1991 and he worked for Dawson Construction and Landfill in the summer of 1991. The veteran's brother submitted a letter dated December 1995 in which he reports that the veteran had an "S Corporation" named Town and Country Tree Service since 1979. He reported in the letter that the veteran was a licensed arborist in Sioux Falls and Brookings, and that the veteran was able to stockpile cured firewood during the applicable period estimated at $6,000 (although it was stolen from him). The veteran also worked for Gopher State Scrap & Metal, Inc., as a crane operator in August 1994. The Board can discern from the record that the veteran has been making bona fide attempts to improve on his occupational endeavors despite roadblocks in life, many of them the result of physical disabilities. For example, the veteran took 30 hours of instruction in urban forestry and tree care from the Minnesota Extension Service's Master Gardener Program and he received a Certification of Completion for Pro-Hort Training in December 1994. The Board further observes that the veteran held an arborist license from the City of Sioux Falls between January 7, 1986 to December 31, 1986. Although the record contains evidence that the veteran's back condition limited his ability to maintain work in tree trimming, apparently the veteran continued his ambition to become a licensed arborist. The December 1995 letter appears to indicate that the veteran was active on at least some degree in the field of arbory, and a medical progress note dated June 1996 shows that the veteran injured himself while "climbing on one of his tree jobs." The veteran apparently disregarded the medical advice and continued to work in the field of arbory. More importantly, however, the veteran was capable of working in a field less strenuous physically than either tree trimming or heavy equipment operation, as suggested by Dr. Allenburg in his November 1989 letter. The sole fact that a veteran may be unemployed or have trouble finding employment is not sufficient for a showing of unemployability. The pertinent question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). Although the Board acknowledges that the veteran should not have been employed in physical labor during the period between October 24, 1989 and December 2, 1996, the veteran could have been employed in a more sedentary field. Based on the veteran's employment and disability picture, the Board concludes that the evidence of record does not show that he was unable to obtain substantially gainful employment as a result of his disabilities during the applicable period, and the criteria for a permanent and total disability rating for pension purposes at that time were not met. As a final matter, the Board notes that the RO alternatively evaluated the veteran's skin condition as not shown by the evidence and as zero percent disabling. After a thorough review of the medical evidence, the Board could find no evidence that suggests that the veteran had a skin condition between October 24, 1989 and December 2, 1996. The Board also did not find evidence of ringworm for the applicable period. ORDER Entitlement to nonservice-connected pension benefits from October 24, 1989 to December 2, 1996 is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals