Citation Nr: 1315410	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  09-12 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD).

2.  Entitlement to non-service connected pension.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

E. I. Velez, Counsel


INTRODUCTION

The appellant had active military service from October 1967 to April 1968.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia and Huntington, West Virginia. Jurisdiction has since been transferred to the Jackson, Mississippi RO. 

In July 2010, the appellant testified in front of the RO.  A transcript of the hearing is of record. 

The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The appellant's non-service-connected disabilities currently include the following: (1) depression, mood disorder and posttraumatic stress disorder (PTSD), currently ratable at 50 percent; (2) degenerative joint disease of the lumbosacral and thoracic spine, ratable at 20 percent; (3) degenerative joint disease of the left and right hips, ratable at 20 percent each; (4) degenerative joint disease of the right and left knees, ratable at 10 percent each; (5) erectile dysfunction, ratable as noncompensable; (6) hyperlipidemia, ratable as noncompensable, (7) gastroesophageal reflux disease (GERD), ratable as noncompensable; (8) wool allergies, ratable as noncompensable; and (9) bilateral hearing loss, ratable as noncompensable.

2.  The appellant was born in 1949 and his combined rating is 70 percent with one disabilities rated at 50 percent. 

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

The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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). 

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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This 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). 

The record reflects that, over the course of this appeal, the RO provided the appellant with notice as to how he can prevail on his claim for non-service-connected pension benefits, and of his and VA's, respective duties for obtaining evidence by way of a letter dated in February 2007.  The appellant was also asked to submit evidence and/or information in his possession to the AOJ.  As the Board has determined that the preponderance of the objective and credible evidence of record is against the claim for non-service-connected pension benefits, any questions regarding the appropriate disability rating or effective date to be assigned are rendered moot.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The record establishes that the appellant had a full and fair opportunity to participate in the adjudication of his claim.  Moreover, the evidence submitted by the appellant since the beginning of this claim, along with his testimony at the July 2010 RO hearing, establishes that he received notice of each element required to substantiate the claim for non-service-connected pension benefits.  The Board concludes that the appeal may be adjudicated without a remand for further notification.

Additionally, a review of the record indicates that the appellant's service treatment records were associated with the claims file and his known VA and non-VA treatment records have been obtained, to the extent available, and included in the claims file.  Social Security Administration (SSA) records have also been associated with the claims file.

As well, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A (d) (West 2002 & Supp. 2011).  The record reflects that, in conjunction with this claim, the appellant underwent VA medical examinations in March 2009 and August 2010, and the examination reports are contained in the claims folder.  A review of those examination reports reveals that thorough examinations of the appellant were accomplished and the opinions provided were supported by sufficient rationale.  Therefore, the Board finds that the VA examinations are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 

During the course of this appeal, the appellant proffered documents and statements in support of his claim.  In sum, VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. 

Hence, 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, supra.

II.  Legal Criteria and Analysis

The appellant asserts that he is permanently and totally disabled due to his non-service connected disabilities.  In oral and written statements in support of his claim, the appellant asserts that he has been unable to work since 2000 primarily due to his musculoskeletal 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 Board's 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.  

'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 or 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 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 record reflects the appellant served on active duty from October 1967 to April 1968.  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.  The Board also notes that SSA records show he was denied SSA disability and therefore is not in receipt of SSA 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) depression and mood disorder, (2) degenerative joint disease of the lumbosacral and thoracic spine, (3) degenerative joint disease of the left and right hips, (4) degenerative joint disease of the right and left knees, (5) erectile dysfunction, (6) GERD, (7), wool allergy, (8) status post fracture of the right hand, fourth and fifth metacarpal, and (9) bilateral hearing loss.

The musculoskeletal disabilities are addressed first.  When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. 

Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

The appellant's osteoarthritis of the thoracic spine/thoracolumbar strain (residuals of compression fractures of the spine) is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  Diagnostic Code 5243 evaluates lumbosacral or cervical strain pursuant to the General Rating Formula for Diseases and Injuries of the Spine.  The general rating formula provides for the following disability ratings for diseases or injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 

Ratings are assigned as follows: 

1) 10 percent - Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; 

2) 20 percent - Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 

3) 40 percent --Forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 

4) 50 percent -- Unfavorable ankylosis of the entire thoracolumbar spine; and 

5) 100 percent -- Unfavorable ankylosis of the entire spine. 

Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 

Under Diagnostic Code 5243 (2012), that evaluates intervertebral disc syndrome (IVDS), Note 6 directs that IVDS is to be evaluated under the General Rating Formula for Disease and Injuries of the Spine or under the formula for rating based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  A 10 percent evaluation is warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent evaluation is assigned with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 evaluation is warranted.  A 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. 

Note (1): An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 

Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. 

Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 

Normal range of motion of the thoracolumbar spine includes flexion from zero to 90 degrees; and extension, bilateral lateral flexion, and bilateral rotation, all from zero to 30 degrees.  38 C.F.R. § 4.71a, Plate V (2012).  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id. 

Under Diagnostic Codes 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints.  When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Codes 5003 (2012).  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, however, arthritis is rated as 10 percent disabling when shown by x-ray evidence of the involvement of two or more major joints or two or more minor joint groups, or as 20 percent disabling when show by x-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012), if flexion of the knee is limited to 45 degrees, a 10 percent rating is assigned.  If flexion of the knee is limited to 30 degrees, a 20 percent rating is in order. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012), if extension of the knee is limited to 10 degrees, a 10 percent rating is assigned.  If extension of the knee is limited to 15 degrees, a 20 percent rating is in order. 
In a precedent opinion by the VA General Counsel, it was held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 09-04; 69 Fed. Reg. 59, 990 (2004).  The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable.  Id.  

In a separate precedent opinion, the VA General Counsel held that separate compensable ratings may also be assigned in cases where the service-connected disability includes both arthritis and instability, provided, of course, that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997).  In this regard, under Diagnostic Code 5257, impairment of the knee, manifested by recurrent subluxation or lateral instability, will be rated 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent when severe.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 

The knee is considered a major joint.  38 C.F.R. § 4.45(f).  The normal range of motion of the knee is from zero to 140 degrees.  38 C.F.R. § 4.71, Plate II (2012). 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2012), provide a 10 percent disability rating is warranted where extension of the thigh is limited to 5 degrees.  Diagnostic Code 5252 provides for a 20 percent rating where flexion is limited to 45 degrees.  A 20 percent disability rating is assigned where flexion is limited to 30 degrees; a 30 percent disability rating is assigned where flexion is limited to 20 degrees; and a 40 percent disability rating is assigned where flexion is limited to 10 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5252 (2012). 

A 10 percent disability rating is also warranted for limitation of rotation of the thigh if the affected leg cannot toe-out more than 15 degrees; a 10 percent rating is warranted where adduction is limited such that legs cannot be crossed; and a 20 percent rating is assigned for limitation of abduction of the thigh with motion lost beyond 10 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5253 (2012). 


Normal ranges of motion of the hip include hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II. 

Where limitation of motion of either hip is noncompensable under Diagnostic Codes 5251, 5252, or 5253, a rating of 10 percent may be assigned where there is limitation of motion objectively confirmed by findings such as satisfactory evidence of painful motion. 

Regarding the Veteran's lumbosacral and thoracic spine disability, the March 2009 VA examination showed that forward flexion was, at it's worse after repetitive use, to 50 degrees.  Left lateral flexion and bilateral rotation were within normal limits; right lateral flexion was to 15 degrees.  At the August 2010 VA examination range of motion was noted as follows: forward flexion to 70 degrees, extension to 20 degrees, bilateral lateral flexion to 16 degrees, and bilateral lateral rotation to 14 degrees.  The examiner noted that part of the forward flexion was being accomplished by the hips and the true forward flexion of the spine was to 50 degrees.  

Given the findings above, the Veteran's lumbosacral spine disability warrants a 20 percent rating as range of motion is to 50 degrees and there is no clinical evidence of forward flexion to less than 30 degrees or favorable or unfavorable ankylosis of the thoracolumbar spine.  The 20 percent rating assigned for the thoracolumbar spine disability is based on limitation of motion of the thoracolumbar spine applied to the general rating formula pursuant to 38 C.F.R. § 4.71a.  Higher ratings are not assignable because the criteria are not met. 

As such, a rating higher than 20 percent is not assignable for the lumbosacral and thoracic spine disability.  Moreover, because the record contains no evidence of an intervertebral disc syndrome, consideration of a rating under the alternative rating criteria of Diagnostic Code 5243 based on incapacitating episodes is not an option.  Nor is there evidence of neurologic manifestations of the thoracic spine disability that would warrant a separate compensable evaluation.

Regarding the Veteran's degenerative joint disease of the bilateral knees, the March 2009 VA examination showed no swelling or tenderness with full extension in both knees.  Flexion was to 120 degrees with grunting from 60-120 degrees bilaterally.  After repetitive use, both knees had full and nonpainful extension.  Flexion remained to 120 degrees with grunting from 40-120 degrees.  While the Veteran reported occasionally giving way of the knees, physical examination showed there was no ligamentous instability on either knee and McMurray's test was negative bilaterally.  

At the August 2010 examination range of motion on the knees was noted to be extension to zero without pain and flexion to 106 degrees on the right knee and to 110 degrees on the left knee with  no pain and no change after repetitive use.  There were no objective findings of instability.  Lachman and drawer tests were normal.  X-rays showed narrowing of the medial compartment and slight spurring of the tibial spines bilaterally.  He was diagnosed with very mild traumatic arthritis of the knees.  

Based on limitation of motion, the Veteran's bilateral knees warrant a noncompensable rating.  Moreover, there were no objective findings of instability.  Therefore, a compensable rating based on limitation of motion is not warranted.  However, as there is x-ray evidence of degenerative joint disease of the bilateral knees, a 10 percent based on limited noncompensable motion is warranted for each knee.  

Regarding the Veteran's hip disability, at the March 2009 VA examination showed no tenderness to palpation of the groin and trochanteric area.  Flexion was to 100 degrees bilaterally with some grimacing at the end of range of motion.  Extension was normal with no pain.  Adduction was to 20 degrees with no pain.  Abduction was to 45 degrees with grimacing at end of range of motion.  External rotation was to 40 degrees with grimacing at end of range of motion.  And internal rotation was to 40 degrees without any pain.  After repetitive use, there was no change in range of motion of the hips except for abduction on the left which was reduced to 20 degrees.  

At the August 2010 VA examination there was no pain on palpation noted on the hips.  Range of motion was forward flexion to 94 degrees; extension to 6 degrees; abduction to 16 degrees; adduction to 20 degrees; external rotation to 44 degrees; and internal rotation to 16 degrees all without any change on repetitive use.  There were no objective signs of pain on motion.  There were subjective signs of pain on motion with extension and at the end of forward flexion.  X-rays showed degenerative changes.  

Based on the findings noted above, the Veteran's bilateral hips each warrant a 20 percent disability rating under Diagnostic Code 5253.  Indeed, abduction at the August 2010 VA examination was noted to be to 16 degrees.  With normal abduction being to 45 degrees, abduction to 16 degrees shows a loss beyond 10 degrees.  However, the requirements for a higher disability rating are not shown.  Indeed flexion is not limited to 20 degrees.  Moreover, there is no basis for a higher disability rating under any other diagnostic code.  

Regarding the Veteran's hands, at the August 2010 VA examination PIP joints were enlarged but hard in the long and ring fingers.  Ulnar deviation was noted.  There was evidence of a scar on the right hand which was well healed.  When the Veteran tried to make a fist, the distal phalanx of the index finger rides under the long finger bilaterally.  The index finger had some ulnar deviation.  All of the fingers touched the adjacent fingers, but the ring finger touches the palm 0.5 cm proximal to the proximal palmar line which is abnormal.  The remaining fingers miss the palm by 1.2 cm. each.  Movement of the hand was good without any pain.  He has a fairly good grip but is unable to touch the palm of his hand with two fingers.  There was a boutonniere type of deformity noted on the right little finger.  There was loss of extension of the PIP joint of 50 degrees in the right little finger but is able to touch the palm normally with the little finger.  In the left hand, the index and long fingers miss the palm when trying to make a fist by 9 mm for the index finger and 2 mm for the long finger.  The remainder of the fingers make abnormal fist.  He is able to touch the thumb to the base of the fifth finger bilaterally.  Sensory examination was normal.  X-rays showed degenerative changes in the metacarpophalangeal joints of the fifth, fourth and third digits of the right hand, and in the PIP joints of the fifth and first digits.  The examiner opined that he had degenerative arthritis of both hands.  

Diagnostic Code 5228, thumb, limitation of motion provides a non-compensable rating for a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent rating for a gap of between one to two inches (2.5 cm to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and a 20 percent rating for a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  38 C.F.R. § 4.71a (2012). 

Under Diagnostic Code 5229, pertaining to limitation of motion of the index finger or of the long finger, a noncompensable (0 percent) evaluation is warranted for limitation of motion of the index finger or the long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees.  An evaluation of 10 percent under Diagnostic Code 5229 requires limitation of motion of the index finger or of the long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees.  38 C.F.R. § 4.71a (2012).

Under Diagnostic Code 5230, limitation of motion of the ring or little finger provides a maximum noncompensable evaluation. 

Given the findings above, the Veteran's fingers disability does not warrant a compensable rating based on limitation of motion.  However, a 10 percent rating is assigned based on x-ray findings of arthritis.  

The Board notes that in regards to the Veteran's psychiatric disabilities, his depression and mood disorder are rated under Diagnostic Codes 9434 and 9435 for major depressive disorder and mood disorder not otherwise specified, respectively.  At the March 2009 VA examination he was diagnosed with PTSD. Which is rated under Diagnostic Code 9411.  All mental disabilities are rated under the General Formula for Mental Disorders of 38 C.F.R. § 4.130 (2012). 

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. 

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). 

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.  

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. 

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. 

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 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  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.). 

At the March 2009 VA examination the Veteran reported difficulty with concentration, feelings of intense fear and horror, avoidance tendencies, recurring thoughts, hypervigilence and foreshortened thought.  He denied suicidal ideations or attempts.  He reported flashbacks, irritability and anger.  Mental status examination revealed the Veteran appeared to be genuinely in physical distress.  He was alert and oriented times three; affect was broad and he looked a little paranoid at times.  He stated he had auditory and visual  hallucinations.  He denied homicidal ideations.  He could recall three out of three objects.  There was no evidence of any overt cognitive deficits, no tangentiality, circumstantiality, flight of ideas, or loosening of association of speech.  His insight was limited.  He was diagnosed with PTSD and was assigned a GAF score of 53.  The examiner stated that the GAF score represented moderate to severe impairment in industrial and social functioning.  However, it was noted that the Veteran's psychiatric symptoms caused only mild impairment in employment functioning.  Regarding social functioning, the Veteran himself stated that he is comfortable around people.

Considering the evidence noted above, the Veteran's psychiatric disability, including depression, mood disorder and PTSD, warrant a 50 percent disability rating.  Indeed, the Veteran has reported hallucinations, flashbacks, irritability and anger.  He was noted to be paranoid at times and showed limited insight.  Moreover, his GAF score was noted to show moderate to severe impairment in industrial and social functioning.  The Board recognizes that the examiner stated that his psychiatric symptoms had only mildly interfered with employment and that the Veteran himself stated that he was comfortable around people.  Nonetheless, the Veteran did report symptoms which are consistent with a moderate level of impairment.  The same is reflected in the GAF score assigned.  Accordingly, resolving all doubt in the Veteran's favor, a 50 percent disability rating is assigned.  

However, a rating in excess of 50 percent for the Veteran's psychiatric disabilities is not warranted.  Indeed, there is no showing of panic attacks and no suicidal ideations.  His speech was normal and he denied homicidal ideations.  Moreover, he did not attribute his unemployment to his psychiatric disabilities.  Therefore, a higher disability rating in excess of 50 percent is not warranted.  

The Veteran is also diagnosed with GERD.  At the August 2010 VA examination, he reported occasional heartburn.  He cannot tie the heartburn to any particular precipitant and is not clearly associated with the use of medication.  He denied a history of peptic ulcer disease and denies dysphagia of solids or liquids, regurgitation, hemastasis, or melena.  He denied any problems with constipation.  Physical examination showed normoactive bowel sounds without organomegaly.  

The Board notes that when an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin.  See 38 C.F.R. § 4.20.  The Board finds that Diagnostic Code 7346 best approximates with the anatomical localization and symptomatology of the Veteran's GERD and that this disability is best evaluated under this Diagnostic Code.

Under Diagnostic Code 7346, a 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health.  A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health.  A 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity.  38 C.F.R. § 4.114 .

Considering the evidence noted above, the Veteran's GERD does not warrant a compensable evaluation.  Indeed, the only symptom reported was heartburn.  Accordingly, a noncompensable evaluation is warranted.  

The Veteran has also been diagnosed with a wool allergy.  By analogy, the Board will rate this disability under Diagnostic Code 7806, for eczema or dermatitis.  

Diagnostic Code 7806, which provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 

Diagnostic Code 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and, no more than topical therapy is required during the past 12-month period, is rated noncompensably (0 percent) disabling.  Dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling.  Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling.  Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling.  38 C.F.R. § 4.118.

At the September 2010 VA examination, the Veteran was found to have no skin problems and no dermatosis.  While he has been diagnosed with a wool allergy, there are no symptoms reported for this disability.  Accordingly a noncompensable evaluation is warranted.  

The veteran has also been diagnosed with erectile dysfunction.  At the march 2009 VA examination the veteran reported he has reduced libido and difficulty developing and maintaining an erection.  He is able to achieve vaginal penetration and ejaculate.  Physical examination revealed normal adult male genitalia.  

By analogy, the Board will evaluate the veteran's erectile dysfunction under Diagnostic Code 7522 (2012).  Diagnostic Code 7522 provides for a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power.  38 C.F.R. § 4.115(b), Diagnostic Code 7522.  Given the evidence above, a noncompensable rating is warranted.  There is no penile deformity noted, in fact, genitalia were normal.  

The Veteran has also been diagnosed with bilateral hearing loss.  A September 2010 audiological examination showed puretone thresholds as follows:



HERTZ



1000
2000
3000
4000
RIGHT
	20
20
30
45
LEFT
10
25
45
55

Average puretone thresholds were 29 on the right and 34 on the left. Speech recognition test was 100 percent on the right and 94 on the left. 

In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity.  Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests.  38 C.F.R. § 4.85(a). 

The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz , divided by four.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id. 

In applying the results of the September 2010 examination, Roman numerals of I are assigned bilaterally.  Inserting these into Table VII provides for a noncompensable rating.  

Finally, with regards to hyperlipidemia and chronic constipation, the Board finds that these are not ratable disabilities.  Indeed, hyperlipidemia is a laboratory finding and not a disability.  See Dorland's Illustrated Medical Dictionary 795 (28th ed. 1994). Similarly, constipation is a symptom and not a disability.  Accordingly, as these are not disabilities, the Bord will not consider them in determining entitlement to non-service connected pension. 

In sum, the Veteran's current disabilities are most appropriately rated (for pension purposes) as follows: lumbosacral and thoracic spine (20 percent), psychiatric disorder (50 percent), bilateral hip disability (20 percent), a hand disability (10 percent), bilateral knee (10 percent) and GERD, wool allergies, bilateral hearing loss and erectile dysfunction (non-compensable).  Resolving all doubt in the Veteran's favor, his non-service-connected disabilities 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 satisfy the percentage requirements outlined in 38 C.F.R. § 4.17.  However, in order to grant non-service-connected pension benefits, it must be found that the appellant is unemployable due to his disabilities. 

The August 2010 general VA examiner specifically noted that there is nothing in the general examination that would impair the Veteran's ability to seek and maintain gainful employment.  It was further noted that the Veteran is independent in his activities of daily living and cares for his mother at home.  The August 2010 VA orthopedic examiner stated the Veteran could do sedentary work.  In regards to the thoracolumbar spine disability it was noted that this disability it does not preclude him from employment, but does preclude him from manual labor.  Similarly, regarding his hand disability, it was noted he could do sedentary work but no manual labor.  The March 2009 VA psychiatric examiner stated that the Veteran's psychiatric disability only mildly affected his employment.  

In support of his claim, the appellant submitted an April 2009 comprehensive mental status examination stating that he did not believe that in his condition and at his age, the Veteran can work productively in a competitive environment where there are expectations for time and quality performance. She noted he had been an automotive mechanic all his life and this is rather demanding work in terms of skill, strength and stamina.  

The appellant maintains that he is in pain every day and truly believes he is not capable of working.  The March 2009 and September 2010 VA examiners disagreed.  

Based on the type of employment and the types of disabilities shown on examination and the record, it does not appear that the appellant's disabilities would preclude employment.  While he may no longer be capable of doing physical labor, he has been successfully retraining himself in a new career in optics that offers opportunity for sedentary employment.  Indeed, he has noted to be skilled in optical equipment; and, has listed as previous employment, car sales and working for medical allied.  These are not labor intensive jobs which the Veteran could pursue once again.  There is no indication that these jobs, for which the Veteran is qualified and has performed before, require activity that could not be accomplished given his physical and psychiatric limitations. 

Since the March 2009 and September 2010 VA examiners' opinions were based on a review of the pertinent medical history and clinical evaluations, and were supported by sound rationale, they provide compelling evidence against the appellant's claim.  The Board emphasizes that the VA examiners provided valid medical analyses to the significant facts of this case in reaching their conclusions.  In other words, the VA examiners 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).

The Board places greater weight on the VA opinions that find that the appellant was not permanently and totally disabled, than on the April 2009 private psychiatric evaluation which states that the Veteran's psychiatric disabilities prevent him from being able to obtain any type of gainful employment.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches").

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. at 433.  But, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. 

In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinions provided by the VA examiners who provided the written opinions in the March 2009 and September 2010 VA examination reports.  These medical specialists had the opportunity to review all the appellant's medical records regarding his physical and psychiatric disorders and performed clinical examinations of the appellant. 

The April 2009 private opinion reasoned that the Veteran had worked as a mechanic all his life as the reason for his unemployability.  However, the record is clear that the Veteran has been employed as acar salesman and in the medical profession in some sort.  Indeed, the Veteran himself submitted this employment history information.  Therefore, the April 2009 private opinion was based on an inaccurate factual premise and is not reliable. 

Given the above, the Board gives greater probative weight to the VA examiners' opinions and finds that, the probative and objective medical opinions of record demonstrate 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.  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, albeit just sedentary work.  See Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991).

Given the individual ratings assigned to the appellant's disabilities, the combined ratings pursuant to 38 C.F.R. § 4.25, and the examiners' 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 thoracic spine pain, 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 . 


ORDER

Entitlement to non service connected pension is denied.


REMAND

The Veteran seeks entitlement to service connection for PTSD.  After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the claims.

In regards to the claim for service connection for PTSD, the Veteran has alleged that while serving on board a ship, he got into an argument with another sailor which ended with him pushing the sailor overboard.  In a March 2009 VA exam, the Veteran was diagnosed with PTSD based, in part, on this claimed stressor. 

The RO has attempted to obtain the Veteran's service personnel records but has been unsuccessful.  In an October 2009 response from the National Personnel Service Center stated that the records were unavailable.  However, the claim file does contain some service personnel records.

A careful review of the few service personnel records shows that the Veteran satisfactorily completed the curriculum for recruit training on February 19, 1968.  He was found physically qualified for transfer from the Great Lakes, Illinois, on February 23, 1968.  Service treatment records dated between March 13-25, 1968 are stamped from the U.S.S. SIERRA.  Finally, a Medical Board Report Cover Sheet shows that a Medical Board was convened on April 15, 1968.  The last duty station is shown to have been the U.S.S. SIERRA and it was noted he was admitted to the sick list on March 27, 1968.

From the information above, the Board can discern that the Veteran was most likely stationed at the U.S.S. SIERRA sometime between February 23, 1968, the date he was found physically fit for transfer, to April 15, 1968, the date the Medical Board was convened.  This narrows the time period of the alleged stressor to a period of a little more than 30 days and less than 60 days.  This is a short enough period of time for at least an attempt at corroboration of the stressors to be conducted through a search of the ship's deck logs. 

Therefore, to ensure due process, additional development is needed prior to deciding the claim.  On remand, the RO should request a search of the deck log books to attempt to corroborate the claimed stressors. 

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should request a search of the U.S.S. SIERRA's deck log, or any other potential sources of information, for the time period between February 23, 1968 and April 15, 1968, in an attempt to corroborate the claimed stressor.  The search should specifically include a search for any reports of a man overboard.  All attempts to corroborate the claimed stressor should be clearly documented in the claims file.

2.  Upon completion of the above, readjudicate the issue on appeal and consider all evidence received since issuance of the most recent Supplemental Statement of the Case.  If any benefit sought on appeal remains denied, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs