Citation Nr: 1312928	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  10-41 963	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a permanent and total rating for non-service-connected pension benefits.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel

INTRODUCTION

The appellant had active military service from September 1968 to April 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  Jurisdiction was later transferred to the RO in St. Louis, Missouri.
 
In August 2011, the appellant testified during a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.


FINDINGS OF FACT

1.  The appellant's non-service-connected disabilities include the following: (1) hepatitis C, currently ratable at 40 percent; (2) mild depressive disorder, currently ratable at 10 percent; (3) asymptomatic skin disorder of upper and lower extremities, and trunk, and scarring on the arms, currently ratable as noncompensable; and, 4) defective visual acuity, hypertension; and arthritis, each currently ratable as noncompensable.

2.  The appellant was born in 1950 and, resolving all doubt in his favor, his non-service-connected disabilities combine to a rating that approximates a 50 percent rating. 

3.  The objective and credible medical and other evidence of record preponderates against a finding that the appellant is permanently and totally disabled due to his non-service-connected disabilities. 






CONCLUSION OF LAW

The criteria for entitlement to non-service-connected pension benefits have not been met.  38 U.S.C.A. §§ 1155, 1502, 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.321, 3.340, 3.342, 4.15, 4.16, 4.17 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, this Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that pertinent non-service-connected disabilities rendered the appellant unable to obtain or maintain gainful employment would be helpful in establishing the claim.  Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the appellant was sent a letter in November 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The November 2009 letter provided notice as to how VA assigns an appropriate disability rating or effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the appellant in the development of his claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  All reasonably identified and available VA and non-VA medical records were obtained.  A review of the appellant's Virtual VA electronic file does not reveal any additional evidence relevant to the claim for non-service-connected pension benefits on appeal.

The appellant was afforded a VA examination in September 2010 in conjunction with his claim and the examination report is of record.  The September 2010 VA examination report is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, examined the appellant, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination.  The records satisfy 38 C.F.R. § 3.326 (2012). 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the appellant's service treatment records, as well as post-service reports of VA treatment and examination.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim.  

The Board notes that, in considering the appellant's claim on appeal, the September 2010 statement of the case (SOC) properly provided him with the rating criteria to evaluate hepatitis C under 38 C.F.R. § 4.114, Diagnostic Code 7354 (2012).  However, the June 2011 supplemental statement of the case (SSOC) incorrectly provided him with the rating criteria under 38 C.F.R. § 4.114, Diagnostic Code 7345 (2012).

Diagnostic Code 7345 is assigned for chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C).  The Board notes that, not only does the rating schedule expressly provide that hepatitis C be rated under Diagnostic Code 7354, but Diagnostic Code 7345 explicitly excludes hepatitis C.  Therefore, Diagnostic Code 7354 is the most appropriate diagnostic code to evaluate the appellant's non-service-connected hepatitis C disability.  Notwithstanding these explicit provisions as to the diagnostic code under which to rate hepatitis C, the rating criteria under DCs 7345 and 7354 are essentially identical.  Thus, the appellant was not harmed by the RO's error and the Board may proceed to adjudicate his claim without prejudice to him.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


II. Factual Background and Legal Analysis

The appellant asserts that he is permanently and totally disabled due depression, hypertension, and arthritis (see October 2010 substantive appeal).  In his March 2009 claim, he reported that he completed 12 years of schooling and had work experience as a machine operator at the United States Post Office, from 1973 to 1983.  He said that he last worked in June 1989 (although a February 2007 rating decision shows that he reported that he last worked in 2006 for a personal and home care company).  In oral and written statements in support of his claim, the appellant asserts that he is unable to work due to his disabilities.

The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

A disability pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently or totally disabled due to non-service-connected disabilities not the result of his or her own willful misconduct.  38 U.S.C.A. § 1521(a).

A veteran of any war means a veteran who served in the active military, naval or air service during a period of war as defined in 38 C.F.R. § 3.2.  Under 38 C.F.R. § 3.2(i) , the Vietnam era is defined as the period beginning on February 28, 1961 and ending on May 7, 1975 inclusive, in the case of a veteran who served in the Republic of Vietnam during that period.  The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. 

'Permanent and total disability' will be held to exist when an individual is unemployable as a result of disabilities that are reasonably certain to last throughout the remainder of that person's life.  38 C.F.R. §§ 3.340(b), 4.15.  Pension cases must be adjudicated applying both 'objective' and 'subjective' standards.  Talley v. Derwinski, 2 Vet. App. 282, 285 (1992). 

A veteran may establish that he or she has 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(a)(1); 38 C.F.R. § 4.15.  A veteran who suffers the permanent loss of use of both hands and both feet, or of one hand and one foot, or of the sight of both eyes, or becomes permanently helpless or permanently bedridden, will be considered permanently and totally disabled for pension purposes.  38 C.F.R. § 4.15.

VA will consider a veteran to be permanently and totally disabled if he is a patient in a nursing home for long-term care due to disability, or determined to be disabled for Social Security Administration (SSA) purposes.  Pub. L. No. 107-103, Section 206(a), 115 Stat. 990 (Dec. 27, 2001).  Otherwise, a finding of permanent and total disability based solely on objective criteria requires rating each disability under the appropriate diagnostic code of the VA's Schedule for Rating Disabilities, to determine whether the veteran has a combined 100 percent schedular rating for pension purposes.  Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992).  Permanent and total disability evaluations for pension purposes will be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary, or familial conditions, as well as for disabilities that require indefinite periods of hospitalization.  38 C.F.R. § 3.342(b). 

Alternatively, a veteran may establish permanent and total disability for pension purposes even absent a combined 100 percent schedular evaluation by proving he or she has a lifetime impairment precluding him or her from securing and following substantially gainful employment.  38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. § 4.17. 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 ratable 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), 4.17. 

Finally, even if a veteran's disability ratings fail to meet the aforementioned percentage standards, a permanent and total disability rating for pension purposes may be granted, in an exceptional case, 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). 

Marginal employment shall not be considered substantially gainful employment.  For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a) (2012). 

While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides."  VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). 

Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a veteran's earned annual income.

Here, the appellant's DD-Form 214 reflects that he served on active duty from September 1968 to April 1972.  This period includes service during the Vietnam era.  Accordingly, the appellant "served for at least 90 days in a period of war," satisfying the service requirement for basic pension eligibility under 38 C.F.R. § 3.3. 

With respect to the permanent and total disability requirement, the appellant does not contend, and the evidence does not reflect, that he has permanent loss of use of both hands or both feet, or of one hand and one foot, or of the sight of both eyes.  In addition, the evidence does not reflect, and the appellant does not contend, that he is permanently helpless or bedridden or that he is a patient in a nursing home for long-term care.  There is no indication that the appellant is currently in receipt of SSA disability benefits. 

The remaining permanent and total disability criteria require the Board to assess the severity of each of the appellant's disabilities.  The evidence of record reflects his current disabilities as follows: (1) hepatitis C; (2) mild depressive disorder; (3) scarring of the arms and asymptomatic skin disorder of upper and lower extremities and trunk; and (4) defective visual acuity, hypertension, and arthritis.

The hepatitis C disability will be addressed first.  Under Diagnostic Code 7354, a 10 percent rating is warranted when there is serologic evidence of hepatitis C infection and the following signs and symptoms due to the hepatitis infection: intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12 month period.  38 C.F.R. § 4.114, Diagnostic Code 7354.

A 20 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms described above) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period.  Id.

A 40 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms described above) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  Id.

A 60 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms described above) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly.  Id.

A 100 percent rating is warranted with near-constant debilitating symptoms (such as the symptoms described above).  Id.

Note (1): Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae.  38 C.F.R. § 4.114, Diagnostic Code 7354. 

Note (2): For purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  38 C.F.R. § 4.114, Diagnostic Code 7354. 

For the purposes of evaluating conditions in § 4.114, the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.  38 C.F.R. § 4.112. 

The term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy.  "Baseline weight" means the average weight for the two-year- period preceding onset of the disease.  See 38 C.F.R. § 4.112 (2012).

Under the current criteria, Diagnostic Code 7312 provides ratings for cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis.  Cirrhosis with symptoms such as weakness, anorexia, abdominal pain, and malaise is rated 10 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7312 (2012).  

Cirrhosis with portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss, is rated 30 percent disabling.  Id.  Cirrhosis with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 50 percent disabling.  Id.

Cirrhosis with history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks, is rated 70 percent disabling.  Id.  Cirrhosis with generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 100 percent disabling. A Note to Diagnostic Code 7312 provides that, for rating under Diagnostic Code 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present.  38 C.F.R. § 4.114. 

Turning to the evidence of record, VA gastroenterology clinic reports dated in March 2008 show that the appellant was not considered a candidate for treatment because of his ongoing drug and alcohol use.  He used alcohol once a month and drugs weekly.  There was no evidence of cirrhosis, yet.  He was advised to stop using drugs and alcohol.

When examined by his VA primary care physician in April 2008, the appellant denied using cocaine for ten months and said he had a beer once every four or five days.  He used cream for dry skin that worked well.  He denied digestive problems and weighed 226 pounds.  It was noted that he had lost 6 pounds and felt good.

A March 24, 2009 VA psychiatry record indicates that the appellant currently weighed 215.4 pounds.  This record shows that he weighed 220 pounds on March 12, 2009; 226 pounds on April 23, 2008, and 225.4 pounds on March 25, 2008.

In August 2009, the appellant was evaluated in the VA gastroenterology clinic and reported that he was starting a temporary job at the Jefferson Barracks cemetery.  He was also applying daily to multiple jobs.  A biopsy was offered if he maintained his sobriety and was socially stable, to which he agreed.

In September 2010, the Veteran underwent VA general medical examination.  It was noted that he was 5 feet 10 inches tall and weighed 220 pounds.  The impression included hepatitis C 1B genotype, which was not being treated at that time.

A January 2011 VA gastroenterology clinic note shows that the appellant believed that he was doing pretty well and felt well.  He was not currently using any drugs or alcohol.  His mood was "OK" and depression was a problem for him but he felt he was doing well at present.  The appellant was working in a temporary job through the end of January but the business then closed.  He had no history of cardiovascular disease and had good stamina for exercise and work.  He weighed 233.9 pounds.  

On examination, the appellant's abdomen was soft, non tender, and not distended.  His liver was enlarged and firm but with no ascities and his spleen could not be palpated.  The impression was hepatitis C genotype 1b with consistent mild elevation in liver function tests, hepatomegaly on exam without stigmata of failure, and synthetic function intact though a single slightly low platelet was noted the previous month.  The appellant agreed to a liver biopsy that was scheduled in February when he was not working.

According to a February 2011 VA gastroenterology clinic note, the appellant's temporary job ended and he hoped to find another one.  He felt good and his mood was good.  Results of his recent liver biopsy revealed Grade 2 inflammation and Stage 4 fibrosis.  He was advised that there were severe fibrotic changes and he was considered in cirrhosis.  He weighed 234.6 pounds.  His abdomen was soft, non distended, and non tender.  The impression was hepatitis C, genotype 1, G2/S4 (cirrhosis).  The appellant agreed to proceed with treatment to slow progression of his liver disease.  He was started on Interferon treatment. 

When seen in the VA gastroenterology clinic in March 2011, the appellant reported no problems with taking his injected medications.  He felt pretty well.  He fell asleep if he sat for too long but felt good, and had good energy when he was up and around.  He denied any mood changes or depression.  He also denied nausea, vomiting, indigestion, or diarrhea.  He had a lot of itching.  The appellant took a shower and then used emollients that controlled it.

In April 2011, filgrastim was added to the appellant's medical regimen to treat his neutropenia.

In a May 2011 VA gastroenterology clinic record, the appellant reported that he was doing well.  His itching was under control, with no rashes or mood changes.  He felt sluggish in the mornings but, once he got up and started doing things, felt good.  He had no complaints.  He weighed 238.2.  It was noted that he had a good viral response though still detectable and was tolerating the treatment well.

During his August 2011 Board hearing, the appellant testified that his hepatitis C disability made him feel tired, particularly on weekends, as he took his shots on Friday and Monday.  See Board hearing transcript at page 13.  He purposely took his shots on Friday instead of during the week to enable him to be home and limited using his strength.  Id. at 14.

Based on the foregoing, and affording the appellant the benefit of the doubt, a 40 percent rating is warranted for his hepatitis C symtoms that have included daily fatigue, malaise and hepatomegaly.  The record also shows some minor weight loss (more a fluctuation) in that, from March 2008 to March 2009, the appellant lost approximately ten pounds, that he eventually gained back during 2011.  There is no evidence of incapacitating episodes (with symptoms described above) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  38 C.F.R. §  4.114, Diagnostic Code 7354.

There is also no evidence of symptoms that include daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms described above) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly such as to warrant a 60 percent rating under Diagnostic Code 7354.

There is also no clinical evidence of cirrhosis with a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis) such as to warrant a 50 rating under Diagnostic Code 7312.

The Veteran's depressive disorder is rated under the General Formula for Mental Disorders of 38 C.F.R. § 4.130 (2012).  Under Diagnostic Code 9434, that evaluates Major Depressive Disorder, a noncompensable rating is warranted for a mental disorder that has been formally diagnosed, but with symptoms that are not severe enough either to interfere with occupational and social functioning or which require continuous medication.  38 C.F.R. § 4.130, Diagnostic Code 9434.

A 10 percent rating is assigned for 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; symptoms controlled by continuous medication.  Id.

A 30 percent rating is assigned 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 conversation normal), 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, recent events).  Id.

A 50 percent rating 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; difficulty in establishing effective work and social relationships.  Id.

A 70 percent rating is appropriate when there is 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); inability to establish and maintain effective relationships.  Id.

A 100 percent rating 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; memory loss for names of close relatives, own occupation or own name.  Id.

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health- illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32).  A GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF score of 61 to 70 denotes mild symptoms or some difficulty in social and occupational functioning. 

While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130.  Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. 

When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). 

The VA outpatient psychiatry records, dated from March 2009 to June 2011, reflect that the appellant's mild depressive disorder was treated with prescribed medication.  Treating psychiatrists have assigned GAF scores that ranged from 51 (in March 2009) to 66 (in March 2011), indicative of moderate to mild social and occupational impairment.  

According to a March 2009 VA outpatient psychiatry note, the appellant last received psychiatric treatment in 2006.  He stopped taking prescribed medication in 2007 but now felt that he needed medication.  He experienced a relapse and used cocaine in January 2009 and felt suicidal then but not currently.  The appellant had difficulty finding a job and was anxious.  He was homeless and lived with friends and family.  On examination, he was oriented, with normal speech and mild dysphoria, no suicidal or homicidal ideations, and no hallucinations.  A mild, recurrent, major depressive disorder was diagnosed, and a GAF score of 51 assigned for which medication was prescribed.

December 2009 VA records indicate that the appellant was sober for eight months and was depressed because he was homeless and had no job.

The September 2010 VA general medical examination report reflects the appellant's history of a drug dependency issue, most recently with crack cocaine.  He was clean for 101 days, per his description.  The appellant was treated by VA with psychiatry and drug rehabilitation support.  The impression included depression and drug dependency.  The VA examiner found no significant disabilities that would adversely affect employment, either active or sedentary, at that time.

In December 2010, the appellant reported that his psychiatric issues were not improved, and he felt "so-so."  He was unable to find a job and was on the waiting list for the Compensated Work Therapy program.  Mental status examination revealed that he was casually dressed and oriented, with fair eye contact and normal speech.  His mood was "so-so" and his affect somewhat constricted with sequential thought process.  The appellant was not delusional or psychotic and denied suicidal or homicidal ideation.  He had fair judgment and insight.  The examiner noted that the appellant's psychosocial issues were not improved, that contributed to his depressed mood.  The appellant found prescribed medication somewhat helpful but was overall hopeful.  A GAF score of 59 was assigned.

When seen by his VA psychiatrist in early March 2011, the appellant reported feeling "fair."  He said he was starting hepatitis C treatment the following week and felt hopeful about it.  He denied alcohol or illicit drug use for over three months.  Upon examination, he was oriented, with normal speech and no delusions.  He had fair insight and better judgment.  A GAF score of 64 was assigned.  The examiner noted that the appellant had good insight about the possible side effects from the hepatitis C treatment including worsening depression and planned to follow him regularly during this period.  It was also noted that the appellant had orientation with the Compensated Work Therapy program that week and felt hopeful about finding a job in the future.  He planned to focus on his hepatitis C treatment at this time.

According to a March 15, 2011 Compensated Work Therapy/Vocational Rehabilitation Consultation record, the appellant expressed interest in Transitional Work Experience.  He was advised of the available services and schedule of weekly groups.  It was noted that the appellant would work with a Vocational Rehabilitation Specialist for the Transitional Work Experience.  An intake was to be scheduled as soon as the Transitional Work Experience caseload allowed.  This record shows that, in accordance with Compensated Work Therapy protocol, the appellant was required to be "medically cleared in order to participate and/or seek employment.  Since the [Veteran's] primary care [physician] has submitted the consult, this request is satisfied."

At the end of March 2011, the appellant told his VA psychiatrist that he was feeling "pretty good overall."  He was on hepatitis C treatment for one month and denied worsening of depressive symtoms.  He felt hopeful and his sleep and appetite were fair.  The appellant was oriented, his affect was less constricted, and he had no delusional or psychotic thoughts.  A GAF score of 66 was assigned.

In June 2011, the appellant contacted a program assistant in the Transitional Work Experience program about his position on the waitlist to receive services.  He was again advised of the delay in services and understood.  The appellant was encouraged to attend group meetings and use the Veteran Computer Lab to perform various Vocational Rehabilitation-related work (resumes, job search, internet-based applications, etc).  He understood and said he would try to attend.

Based on the foregoing evidence, the current rating of 10 percent is appropriate for the appellant's psychiatric disability.  The outpatient records essentially indicate that the appellant's psychiatric disability is reflective of no more than mild to symptomatology.  This is based on a showing that his impairment is due occupational and social impairment with mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 

The next higher 30 percent rating is warranted if the disability is productive of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  This disability picture is not currently demonstrated. 

The appellant testified that he had scars on his arms associated with medicine he took.  He also had an asymptomatic skin disorder of the upper and lower extremities and trunk and abdomen that is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012), pertaining to dermatitis or eczema.  Where less than 5 percent of the entire body or exposed body areas are affected, and no more than topical therapy is required during the past 12-month period, a 0 percent (i.e., noncompensable) rating is assigned.  Id.

In order for a 10 percent rating to be assigned, the evidence must show that at least 5 percent, but less than 20 percent, of the entire body or the exposed areas are affected, or it must show that intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period.  Id. 

Where 20 to 40 percent of the entire body or exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent rating is assigned.  Id. 

In April 2008, the appellant reported to his VA primary care physician that he used cream for dry skin that worked well.  The September 2010 VA examination report indicates that the appellant had a diffuse papular rash in the upper and lower extremities, trunk, and abdomen.  It was not erythematous and it was not raised.  The appellant reported that it had been present for many years and the VA examiner concluded that it was asymptomatic.

Here there is no finding that at least 5 percent of the entire body or exposed body areas are affected by the rash, and no systemic therapy was required during the past 12-month period.  Thus, a compensable rating is not warranted for the appellant's reported scarring on his arms or skin rash of the upper and lower extremities and trunk.

The Veteran also reported an inability to work due to hypertension, although records do not reflect treatment for such.  Notably, when seen in the VA primary care clinic in April 2008, the appellant's blood pressure was 137/78.  A March 2009 psychiatry note indicates that it was 154/86, but a March 2009 primary care note shows that his blood pressure was 140/82.  

However, when examined by VA in September 2010, the appellant's blood pressure was 118/72.  During his August 2011 Board hearing, he testified that he did not take prescribed medication for hypertension.  See Board hearing transcript at page 11.

Hypertensive vascular disease warrants a 10 percent rating when diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or when an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  The term hypertension means that the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90.  Id., Note 1 (2012). 

There is no clinical evidence of hypertension such as to warrant a 10 percent rating.  While the records reflect some elevated blood pressure readings, they do not meet or approximate the criteria for a compensable rating under Diagnostic Code 7101.  There is no clinical evidence of diastolic pressure that is predominantly 100 or more, systolic pressure that is predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more and requires continuous medication for control such as to warrant a 10 percent rating.

The appellant also reports an inability to work due to arthritis.  Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion.  In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups 

The September 2010 VA examiner noted first and second metacarpal changes, bilaterally, left greater than right.  There were no skin changes appreciated.  There was mild soft tissue swelling with no warmth or tenderness.  There was full grip strength appreciated.  The appellant's gait was unlabored and symmetrical without abnormalities noted.  X-rays of the right and left feet and left hand revealed no evidence of bone or joint abnormality.  X-rays of the right hand showed multiple metallic foreign bodies superimposed at the proximal end of the first metacarpal bone.  The clinical impression included arthralgias of the hands and feet, bilaterally, and possible degenerative joint disease.

Here, the record includes the appellant's complaints of joint pain (arthralgias) and assertion that he had arthritis, although the September 2010 VA examiner diagnosed only "possible" degenerative joint disease.  Nevertheless, there is no reported limitation of joint motion such as to warrant a compensable rating under Diagnostic Code 5003.  See e.g., Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (to the effect that a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant). 

Other physical issues mentioned during the September 2010 VA examination and in the more recent VA treatment records include defective visual acuity.  

A noncompensable rating is warranted for impairment of central visual acuity when the corrected visual acuity is 20/40 or better in both eyes and a 10 percent compensable rating is warranted when the corrected visual acuity is 20/50 in one eye and 20/40 or worse in the other eye.  38 C.F.R. § 4.79, Diagnostic Code 6066 (2012).

A July 2009 VA optometry record shows that the Veteran's uncorrected visual acuity was 20/40 in each eye and was correctable to 20/20 in both eyes.  A mild cataract not affecting his vision was also noted.  The September 2010 VA examiner did not report any vision problems.  Thus a compensable rating is not warranted under Diagnostic Code 6066.

The appellant also testified to having back pain and sinus drainage.  There is no indication in the medical records that these issues have a significant effect on his activities of daily living.  

To the extent that the appellant is disabled due to residuals of his cocaine and alcohol dependence, such disorders are due to his own willful misconduct.  38 U.S.C.A. § 1521(a).

In sum, the appellant's current disabilities are most appropriately rated (for pension purposes) as follows: hepatitis C (40 percent), psychiatric disorder (10 percent), and skin disorder of the upper and lower extremities and trunk, hypertension, arthritis, and defective visual acuity (non-compensable).  His non-service-connected disabilities do not equate to one disability ratable at 40 percent or more and additional disabilities with a combined rating that approximates at least 70 percent.  Therefore, these ratings do not satisfy the percentage requirements outlined in 38 C.F.R. § 4.17.  Nevertheless, in order to grant non-service-connected pension benefits, it must be found that the appellant is unemployable due to his disabilities. 

The September 2010 VA examiner specifically noted that he found no significant disabilities that would adversely affect the appellant's employment, either active or sedentary, at that time.

In fact, the VA records show that the appellant, who is 62 years old, was able to work in early January 2011, until that temporary job ended.  He then sought participation in the VA Compensated Work Therapy/Vocational Rehabilitation program and was medically cleared to participate in that program, as noted in the March 2011 record.

The appellant testified that he experienced sleep difficulty and back pain in the morning when he awoke.  See Board hearing transcript at page 4.  He last worked in January 2011 for approximately one month in a temporary job at a printing plant.  Id. at 6-7.  The job ended when the business moved away.  He relied on public transportation, had no other income and did not receive SSA disability benefits.  Id. at 8-9.  He had work experience at the Post Office and in a warehouse.  Id. at 11.  

Based on the type of employment and the types of disabilities shown on examination, it does not appear that the appellant's disabilities would preclude employment.  While he may no longer be capable of doing very strenuous physical labor, there is no indication that the appellant's future job requires activity that could not be accomplished given his physical and psychiatric limitations. 

Since the September 2010 VA examiner's opinion was based on a review of the pertinent medical history and clinical evaluations, and was supported by sound rationale, it provides compelling evidence against the appellant's claim.  The Board emphasizes that the September 2010 VA examiner provided valid medical analyses to the significant facts of this case in reaching his conclusion.  In other words, the VA examiner did not only provide data and conclusions, but also provided a clear and reasoned analysis that the Court has held is where most of the probative value of a medical opinion comes is derived.  See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).

In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the VA examiner who provided the written opinions in the September 2010 VA examination report.  This medical specialist had the opportunity to review all the appellant's medical records regarding his physical and psychiatric disorders and performed a clinical examination of the appellant.  The September 2010 VA examiner found that the appellant's depression, drug dependency, arthralgias of the hands and feet, and possible degenerative joint disease, and hepatitis C would not adversely affect active or sedentary employment, essentially concluding that the appellant was not permanently and totally disabled.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). 

Thus, the probative and objective medical evidence of record demonstrates that the appellant is not permanently and totally disabled due to his non-service-connected disorders.

Finally, a permanent and total disability rating for non-service-connected pension purposes may still be granted on an extraschedular basis if the Veteran is subjectively found to be unemployable by reason of his disabilities, age, background, and related factors.  Per the evidence of record, however, the appellant is 53 years old and the record indicates that he is in participating in the VA Compensated Work Therapy/Vocational Rehabilitation program.  Participation in that program requires medical clearance from the participant's primary care physician - which the appellant received in March 2011.

The appellant has informed VA clinicians that he worked part time in January 2011 for a printing company and, while his exact wages have not been submitted for the record, it appears that his job may earn less than the United States Department of Health & Human Services Poverty Guidelines for 2013 for one person, $11,490.  78 Fed. Reg. 5182-3 (Jan. 24, 2013).  This would seem to indicate marginal employment.  See Faust, supra.  However, he is also seeking Compensation Work Therapy/Vocational Rehabilitation assistance.  The Board recognizes his reports to VA clinicians in March and December 2009 that he was homeless, although he testified that he was currently living in an apartment but received food stamps.  See Board hearing transcript at pages 8, 10.  However, considering both the appellant's abilities and his employment history, there is nothing in the record that shows that the appellant is not capable of substantially gainful employment.  See Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991).

The competent (medical) evidence of record does not reflect that the appellant's non-service-connected disabilities prevent him from maintaining gainful employment. The 2010 VA examiner concluded that the appellant's non-service-connected disabilities did not preclude him from substantially gainful employment.  There is no medical opinion of record to contradict the VA examiner's opinion.

Given the individual ratings assigned to the appellant's disabilities, the combined ratings pursuant to 38 C.F.R. § 4.25 (2012), and the examiner's opinion regarding the Veteran's ability to maintain gainful employment, the totality of the evidence weighs against the claim.  Mindful of the appellant's disabilities, the evidence simply does not show permanent and total disability for pension purposes.  There is no doubt that the appellant has disability associated with his hepatitis C and psychiatric disabilities, along with his other notable disabilities, but these disabilities, singly and in combination have not been shown to be so severe as to prevent the appellant from being able to work.  The preponderance of the evidence is against the claim for a permanent and total rating; there is no doubt to be resolved; and non-service connected pension is not warranted. 38  U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.


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ORDER

Entitlement to a permanent and total rating for non-service-connected pension benefits is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs