BVA9502657 DOCKET NO. 93-08 042 ) 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 evaluation for pension purposes. REPRESENTATION Appellant represented by: State Veterans Affairs Commission, Mississippi ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from January 18, 1946 to January 26, 1947, and from January 16, 1951 to December 11, 1952. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1992 rating decision of the Jackson, Mississippi, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his nonservice- connected disabilities combine to render him unemployable. 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(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim for entitlement to a permanent and total disability evaluation for pension purposes. FINDINGS OF FACT 1. The appellant served on active duty from January 18, 1946 to January 26, 1947, and from January 16, 1951 to December 11, 1952. 2. The appellant was born on March [redacted] 1928. 3. He reported that he completed the 10th grade of high school and had 20 years employment experience as a farmer. He reported that he last worked in 1990 as a farmer. 4. The appellant's combined disability rating is 20 percent. 5. The appellant's disabilities do not meet the schedular criteria for the benefit at issue, and whether considered singly or in the aggregate, are not permanently and totally disabling such as to prevent the average person from engaging in substantially gainful employment. 6. The appellant's disabilities are not of such severity as to preclude him from obtaining or retaining all forms of substantially gainful employment, particularly in vocations which require light manual or sedentary activity. CONCLUSION OF LAW The appellant is neither totally disabled nor unemployable because of permanent disability. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. § 3.321, and Part 4 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate review purposes by the VA, and that a disposition on the merits is now in order. I. Factual Background The record on appeal reflects that the appellant was born on March [redacted] 1928, and has a tenth grade education and work experience as a self-employed farmer. In March 1992, he reported that he last worked in 1990. See Veteran's Application for Compensation or Pension, VA Form 21-526 (March 31, 1992). He further reported at that time that he was disabled due "nerve damage in both legs, stomach, ulcers, catracts [sic] on both eyes, [and a] lung condition." He further reported a history of medical treatment for "nerve damage in both legs" at the VA Medical Center (VAMC), Jackson, MS, from December 1991 to the present. Medical records which postdate the appellant's last period of active duty (1951-52) consist entirely of outpatient treatment reports from VAMC, Jackson, MS, dated from October 1991 through November 1992, and the report of a VA pension examination (VAX) conducted in conjunction with his aforementioned claim for benefits in May and June 1992. Outpatient reports dated in October and December 1991 reflect treatment for the appellant's complaints of gait disturbance and lower extremity weakness. X-rays of the appellant's cervical spine taken in October 1991 revealed minimal degenerative changes in the mid and lower disc spaces (C5-6, C6-7). X-rays of his chest taken in October 1991 showed both lungs to be clear of any acute process but they appeared emphysematous with mild flattening of the diaphragms; otherwise, the cardiac silhouette and bony thorax were within normal limits. Neurologic consultation in December 1991 for evaluation of his gait complaints revealed essentially normal clinical findings except for a mild sensory deficit in the lower extremities. A four-limb electromyogram (EMG) study revealed the presence of mild myopathic features in the proximal muscles of right arm and leg. Outpatient reports dating from January through November 1992 reflect treatment for a variety of somatic complaints, to include a wart on the right thumb (removed by liquid nitrogen), blurred vision due to new eyeglasses prescription, insomnia, weight loss, stomach bloating, leg and arm stiffness, and episodes of confusion, general fatigue and weakness. A repeat x-ray examination of the appellant's chest taken in March 1992 showed no evidence of active disease. His complaints of insomnia, weight loss and stomach bloating were attributed to his use of cold/flu relief medications. His complaints of leg and arm stiffness were attributed to arthritis. In July 1992, a transcranial doppler (TCD) study was conducted for evaluation of his complaints of episodic positional dizziness. The results of that study revealed diffuse cerebrovascular disease with decreased mean velocities in most vessels, to a greater extent in the right anterior circulation. VAX conducted in May and June 1992 included ophthalmologic, general medical and neurologic evaluations. Ophthalmologic examination in May 1992 for evaluation of the appellant's complaints of blurred vision in both eyes, light sensitivity and poor balance resulted in a diagnosis of mild cataract, both eyes. The VA examiner offered the following concerning the extent of disability resulting from his bilateral cataracts: This patient has very early cataract change in both eyes at this time. It is not recommended that the patient have surgery due to the mild nature of his cataracts at this point. The patient's poor balance problems are probably either brain or inner ear related and the patient has already been evaluated for neurological problems and is seeking an opinion on his inner ear status and this is recommended to the patient. No further recommendations at this time on Mr. [redacted]. General medical examination in June 1992 revealed essentially negative findings. Skin evaluation showed seborrheic keratoses of the trunk; otherwise history was negative for any abnormal pathology. Evaluation of his lymphatic system revealed a negative history of pathology and there was no evidence of adenopathy. Evaluation of his head and neck was negative. Nose and throat evaluation revealed complaints of congestion in winter time, relieved with nasal spray. Ears evaluation revealed some earwax in his tympanic membranes and canals. Eye evaluation was deferred to special consultation, described above in this decision. Cardiac evaluation revealed a regular heart rate without murmurs, rubs or gallops. Pulses and respiration were normal, and blood pressure was 130/88, sitting, 134/84, reclining. Electrocardiogram (ECG) study was normal. There was no evidence of varicose veins. On respiratory evaluation, the appellant had some shortness of breath but stated that he could walk one mile symptom free. History was significant for cigarette use (two packs per day for 14 years, one pack per day last 3-4 months). His lungs were clear to auscultation and percussion with no rales, rhonchi or wheezes. Chest x-rays revealed a normal study. Evaluation of his digestive system on general medical examination was negative, notwithstanding his complaints of frequent indigestion, relieved with Rolaids. The appellant reported a history of right inguinal hernia repair 3-4 years ago; a well- healed scar in the area of the right inguinal hernia was noted. Evaluation of his genitourinary system was negative. On musculoskeletal evaluation, the examiner noted the appellant's complaints of left shoulder pain with radiculopathy into his left arm. The appellant reported relief of his symptoms with Nuprin. Range of motion of the left shoulder was nearly full at 170 degrees on elevation and abduction. X-rays of the left shoulder revealed a mild elevation of the head of the left humerus with possibility of a rotator cuff tear. Endocrine evaluation noted a negative history of complaints. Neurologic evaluation was deferred, as described below in this decision. Diagnoses established on the basis of the above included seborrheic keratoses, trunk; dyspepsia, etiology unknown; right inguinal herniorrhaphy; and, left shoulder arthralgia, rule out rotator cuff tear. In his Substantive Appeal dated in November 1992, the appellant requested another examination of his left shoulder on the basis that his left shoulder was not examined on VAX in June 1992. Although the report of the general medical examination indicated a "right" shoulder arthralgia in the section of the report titled "Diagnosis," this appears to have been a typographical error since the clinical findings clearly reflect an examination of the appellant's left shoulder. Accordingly, the Board does not believe that another examination of his left shoulder is necessary at this time. On special neurologic examination in June 1992, the appellant reported complaints of eye trouble and weakness of all four extremities; however, notwithstanding his complaints, clinical findings were entirely negative. The VA examiner proffered the following: At this time I am unable to make a neurologic diagnosis and he has no findings that are indicative of any significant peripheral neuropathy. This man's complaints may denote some underlying condition that is not diagnosable at the present time but the neurologic examination does not reflect it at this point. II. Analysis The appellant filed a claim in March 1992 seeking entitlement to a permanent and total disability evaluation for pension purposes. 38 U.S.C.A. § 1502 (West 1991). Initially, the Board notes that the appellant has met the basic eligibility criteria for claimed benefits. 38 U.S.C.A. § 1521(j) (West 1991) (veteran served in the active military, naval, or air service for ninety days or more during a period of war). A person shall be considered to be permanently and totally disabled if such a person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from - (1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by the Secretary to be such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. See 38 U.S.C.A. § 1502(a) (West 1991). In Brown v. Derwinski, 2 Vet.App. 444 (1992), the United States Court of Veterans Appeals (the Court) analyzed the law with respect to pension entitlement under 38 U.S.C.A. § 1502 and set up a two-prong test for pension eligibility. The Court indicated that permanent and total disability must be shown in one of two ways: Either (1) the veteran must be unemployable as a result of a lifetime disability (this is the "subjective" standard and is based on the veteran's individual work experience, training and disabilities), or (2) if not unemployable, he must suffer from a lifetime disability which would render it impossible for the "average person" with the same disability to follow a substantially gainful occupation (this is the "objective" standard). In order to make this determination, the Board must apply the percentage standards of 38 C.F.R. §§ 4.16 and 4.17, that is, the objective standard, and consider entitlement to extraschedular evaluations under 38 C.F.R. § 3.321(b)(2), that is, the subjective standard. Brown, 2 Vet.App. 444, 446 (1992). All veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated permanently and totally disabled. 38 C.F.R. § 4.17 (1993). For the purpose of pension, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. Ibid. Accordingly, pursuant to 38 C.F.R. § 4.16, total disability ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single nonservice-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional nonservice-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (1993). Claims of all veterans who fail to meet the percentage standards indicated above but who meet the basic entitlement criteria and are unemployable by reason of their disabilities, age, occupational background and other related factors, are entitled to consideration on an extraschedular basis. 38 C.F.R. § 3.321(b)(2) (1993). Initially, the undersigned notes that the appellant's disabilities are not permanently and totally disabling pursuant to 38 C.F.R. § 4.15; a total rating under section 4.15 would require the permanent loss of the use of both hands, of both feet, of one hand and one foot, or of the sight of both eyes as well as becoming permanently helpless or permanently bedridden. The undersigned further notes that the appellant's disabilities do not meet the percentage requirements for total disability under 38 C.F.R. § 4.16(a), such that they would prevent an "average person" from engaging in substantially gainful employment. In this respect, the Board concurs with the schedular evaluations assigned by VARO for the appellant's nonservice-connected disabilities. As indicated above, the appellant requested entitlement to a total disability rating for pension purposes due to multiple nonservice-connected disabilities. Those disabilities include cerebrovascular disease, rated 20 percent disabling, and five disabilities each rated noncompensably disabling (cataracts, bilateral; left shoulder arthralgia; right inguinal herniorrhaphy; seborrheic keratoses, trunk; and, dyspepsia, etiology unknown). See Rating Decision, VA Form 21-6796-1 (January 4, 1993). The current, combined disability rating is 20 percent. 38 C.F.R. § 4.25 (1993). The appellant's cerebrovascular disease is rated 20 percent disabling according to the schedular criteria under Diagnostic Code 7199-7114 of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). Code 7114 entitled "Arteriosclerosis obliterans" is rated in this case by analogy to code 7100 for arteriosclerosis, general, with a noncompensable evaluation assigned for an asymptomatic condition (without symptoms of renal, cardiac, or cerebral complications) and 20 percent disabling for "slight weakening of bodily vigor." Where, as shown here, the clinical findings of record reflect complaints of general body fatigue and weakness, the 20 percent maximum rating under code 7100 appears to accurately reflect the extent of his cerebrovascular disease. The appellant's other nonservice-connected disabilities, all rated noncompensably disabling, are appropriately rated according the pertinent schedular criteria. His bilateral cataracts are rated under code 6028 for impairment of vision for a preoperative condition. However, since his corrected vision in each eye was found on VAX in May 1992 to be 20/25, he is not entitled to a compensable rating. His left shoulder disability is rated under code 5299-5202 for impairment of the humerus. However, since the clinical findings of record show no evidence of ratable loss of motion (minimal loss would be at shoulder level, appellant's motion was nearly full at 170 degrees), malunion or nonunion of the humerus, deformity, or other significant impairment (ankylosis or dislocation), an evaluation in excess of the currently assigned noncompensable rating is not warranted. 38 C.F.R. § 4.31 (1993). Since there is no evidence of current impairment resulting from the appellant's right inguinal herniorrhaphy, the noncompensable rating now assigned for that disability appears correct. Code 7338 provides a 10 percent rating only for recurrent postoperative symptoms, readily reducible and well supported by a truss or belt. Similarly, since the clinical findings of record do not show any active dermatologic symptoms relative to his seborrheic keratoses, the noncompensable rating now assigned for that disability appears correct. Code 7813 provides a 10 percent rating by analogy under code 7806 only for symptoms of exfoliation, exudation or itching, if involving an exposed surface or extensive area. With respect to his dyspepsia, clinical findings of record do not suggest that this is a condition which according to the Rating Schedule would require findings of small nodular lesions and chronic symptoms of gastritis. Code 7307 provides a 10 percent rating for a chronic disability manifested by the aforementioned. In this case, the appellant reports occasional stomach indigestion, relieved by over-the-counter antacids (Rolaids), with clinical findings on evaluation of his digestive system on VAX in June 1992. Accordingly, a noncompensable evaluation pursuant to 38 C.F.R. § 4.31 appears to accurately reflect the extent of disability due to his dyspepsia. In view of the above, the Board concludes that the appellant is not unemployable according to the objective "average person" standard. He clearly does not meet the schedular criteria for a total rating under 38 C.F.R. §§ 4.16(a), 4.17, since the combined disability rating is only 20 percent. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease or injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1993). The appellant's combined 20 percent rating is therefore reflective of minimal to moderate impairment of earning capacity. Furthermore, the undersigned finds no evidence that he suffers from a lifetime disability which would render it impossible for the "average person" with the same disabilities to follow a substantially gainful occupation (this is the "objective" standard). As previously stated, a person with a 20 percent combined rating is considered minimally to moderately impaired; it therefore follows that such an individual has at least an 80 percent capacity to pursue a substantially gainful occupation. Pursuant to the two-step test set forth in Brown v. Derwinski, 2 Vet.App. 444 (1992), the Board has considered the provisions of 38 C.F.R. § 3.321(b)(2) which provide that an applicant for pension who fails to meet the percentage requirements but is found to be unemployable by reason of the nature of his disabilities, his age, occupational background or other related factors, may be granted entitlement to permanent and total disability status on an extraschedular basis. The evidence of record indicates that the appellant is approximately 66 years of age and has a tenth grade education. His work experience is in farming. Although he is advanced in years and has a limited occupational background, in view of the appellant's relatively mild extent of physical impairment due to his nonservice- connected disabilities, the undersigned does not believe all forms of employment have been precluded, certainly with respect to light manual or sedentary employment. The sole fact that the appellant is unemployed, or because he has difficult obtaining employment is not enough; the question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet.App. 361 (1993). The undersigned finds no exceptional factors in this case which would preclude all forms of employment, and accordingly, the preponderance of the evidence does not establish entitlement to a permanent and total disability rating for pension purposes on an extraschedular basis. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. C. P. RUSSELL 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.