Citation NR: 9317082 Decision Date: 9/15/93 DOCKET NO. 91—36 179 THE ISSUES 1. Entitlement to an increased evaluation for generalized anxiety disorder, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for plantar warts with resection of the second metatarsal head of the right foot, currently evaluated as 20 percent disabling. 3. Entitlement to an increased evaluation for lumbosacral strain, currently evaluated as 20 percent disabling. 4. Entitlement to a total rating based on unemployability by reason of service-connected disabilities. WITNESSES AT HEARINGS ON APPEAL The appellant and his spouse INTRODUCTION The veteran had periods of active service from April 1947 to January 1948, from October 1948 to September 1949, from October 1950 to December 1950, and from February 1955 to June 1958. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The notice of disagreement with this determination was received in November 1990. The statement of the case was issued in January 1991. Later in January 1991, a personal hearing was held before a hearing officer at the RO. At the hearing, the veteran raised the question of his entitlement to a total rating based on unemployability by reason of his service-connected disorders. The hearing officer entered her decision in February 1991. In a rating decision dated later in February 1991, the veteran’s entitlement to a total rating based on unemployability by reason of his service- connected disabilities was denied. The substantive appeal with respect to this issue was received later in February 1991. A supplemental statement of the case with regards to the increased rating issues was issued in March 1991. Another supplemental statement of the case with regard to all issues listed on the title page was issued later in March 1991. A personal hearing was held before a travel section of the Board in June 1991. The appeal was received and docketed at the Board in July 1991. In October 1991 the Board remanded the case for further development. The RO issued supplemental statements of the case in March, August, October, and November 1992. The claims folder was returned to the Board, where it was received and docketed in January 1993. At that time, the veteran was represented in his appeal by Michael DePree, an attorney with the Legal Services Corporation of Iowa. In May 1993 the Board received a notice from the Legal Services Corporation that it was withdrawing its services as the veteran’s representative. The veteran was informed that processing of his appeal would be suspended for 30 days so that he would have an opportunity to select another service organization, or an attorney or agent to represent him. The veteran indicated he no longer desired any representation. We note that in the certification of appeal dated in January 1993, it was indicated that a claim for disability benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991) was not being certified at that time. All claims for benefits by individuals claiming disability for treatment under the provisions of this section are being held in abeyance pending further instructions from VA, as a result of ongoing litigation. —2— Additionally, the Board notes that in an April 1992 communication, the veteran’s representative complained that the veteran bad been found to be entitled to a total rating based on unemployability for 12 years between 1968 and 1980, but that the RO terminated his total rating despite the lack of any material improvement in his condition. (The Board notes that a review of the record reveals that the veteran had been in receipt of a total compensation rating based on unemployability from February 1970 through the end of February 1981). This matter has not been developed or certified as an issue on appeal and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially maintain that higher ratings should be assigned for each of the disabilities at issue. It is also asserted that the veteran has been unable to obtain or maintain any type of gainful employment because of the severity of his service—connected disabilities since at least 1987. DECISION OF THE BOARD In accordance with the provisions of 38 U.SC.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran’s claims file, and for the following reasons and bases, it is the decision of the Board that the evidence supports a 50 percent rating for the veteran’s generalized anxiety disorder, a 30 percent rating for plantar warts with resection of the second metatarsal head of the right foot, and a total rating based on unemployability due to service-connected disabilities. It is also the decision of the Board that the preponderance of the evidence is against the claim for a rating in excess of 20 percent for the veteran’s lumbosacral strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained by the RO. 2. The service-connected generalized anxiety disorder is manifested by excessive worry, nervousness, and a lack of insight, approximating considerable social and industrial impairment. 3. Manifestations of the low back disability include subjective complaints of pain and discomfort, X—ray evidence of degenerative —3— changes, but without more than moderate motion restriction or residual impairment. 4. The veteran has constant pain and discomfort in the right foot, with chronic callosities and extensive scarring. The manifestations are severely disabling. 5. In addition to a psychiatric disability, right foot disability, and lumbosacral strain, service connection is in effect for plantar warts with resection of the second metatarsal head of the left foot, rated as noncompensably disabling, and for scarring of the forehead and scalp, also rated as noncompensably disabling. A combined rating of 60 percent has been in effect since April 16, 1990. 6. The veteran has a high school equivalency diploma. He has not worked on a full-time basis for many years. He was employed in the 1960’s as an assembly worker and a welder. 7. The veteran’s service—connected disabilities prevent him from maintaining any type of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent evaluation for generalized anxiety disorder have been met. 38 U.S.C.A, §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.129, 4.130 and Diagnostic Code 9400 (1992). 2. The criteria for a 30 percent evaluation for plantar warts with resection of the second metatarsal head of the right foot have been met. 38 U.S.C.A. §§ 1155, 5107, (West 1991); 38 C.F.R. § 4.7 and Diagnostic Code 5283 (1992). 3. The criteria for an evaluation in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7 and Diagnostic Codes 5292 and 5295 (1992). 4. The criteria for a total rating based on unemployability due to service—connected disabilities have been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a), and that his claims are plausible and capable of substantiation. We are also satisfied that all relevant facts have been properly developed, -4— and that no further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. Generalized Anxiety Disorder A review of the service medical records reveals that the veteran was hospitalized in April 1949 for anxiety reaction, manifested by crying spells and shakiness. He was again hospitalized in July 1949 with a diagnosis of neurotic—depressive reaction, manifested by forgetfulness, amnesia, and chronic alcoholism, with a history of attempted suicide by hanging. In August 1949, a review board found that he had schizophrenic reaction, acute, moderate, manifested by bizarre behavior, alcoholism, and an alleged suicidal attempt. The veteran was hospitalized for psychiatric purposes in September 1949 and the impression was emotionally immature asocial personality, manifested by conflicts with authority, repeated absences without leave, and excessive use of alcohol, An examination in August 1953 resulted in a diagnosis of simple adult maladjustment with anxiety reaction. Thereafter, by rating action in September 1953, service connection for anxiety reaction with simple adult maladjustment was granted, and a 10 percent evaluation was assigned, effective September 10, 1952. Despite this psychiatric disability, the veteran was able to serve another period of service from February 1955 to June 1958. Discharge examination in April 1958 revealed an inadequate personality. VA psychiatric examination was conducted in June 1959. The veteran’s chief complaint was nervousness. At that time, he was not receiving medical care or any type of medication. He was described as functioning in a mildly apathetic fashion. He was described as chronically unhappy and irritable. The diagnosis was mixed psychoneurosis, with mild symptoms. In a July 1959 rating decision, the evaluation for the anxiety reaction was reduced to noncompensably disabling. Subsequently, on VA psychiatric examination in March 1969, the veteran stated that he was getting along very well. He did not believe he was unduly nervous. The diagnosis was minimal anxiety reaction. At the time of VA psychiatric examination in April 1970, it was noted the veteran had lost his job in February 1969. He was discouraged and frustrated because he was out of work. He was a little apprehensive and anxious and expressed ideas of being depressed. The diagnosis was anxiety reaction with depressive features, moderate in degree. As a result, in a May 1970 rating action, the schedular rating for the psychiatric disorder was increased to 10 percent disabling, effective November 26, 1969. Thereafter, in an October 1980 communication, a private physician stated that the veteran had been followed by him since 1977 for diagnoses which included situational anxiety, depressive reaction, —5— alcohol excess, and excessive drug use. The veteran’s last evaluation had been in January 1980 and he did not desire further psychiatric treatment at that time. When examined by VA in January 1982, other than a suggestion of mild depression, psychiatric status was essentially unremarkable. During VA hospitalization for alcohol dependence from August to September 1983, the veteran reported that he had made three suicide attempts between 1979 and 1981. At the present time, he stated he was not suicidal. He indicated he had been depressed off and on for 25 years and had periodically drugged to excess because he felt depressed. Mental status examination during hospitalization was essentially normal, although he reported he was depressed. VA psychiatric examination was accorded the veteran in September 1984. It was indicated the veteran had been hospitalized for psychiatric treatment in a local hospital at least three times since the death of his wife in 1978. The veteran indicated he was taking no medications. Notation was again made of his longstanding depression, with the degree of depression changing depending upon the situation. Notation was made of insomnia, a poor appetite, complaints of physical problems, inability to think clearly and make decisions, feelings of helplessness and worthlessness, and recurrent thoughts of self—destruction. On examination, the veteran was properly oriented. Memory was adequate. The Axis I diagnoses were alcohol dependence, in remission, and major depressive episode. The Axis II diagnosis was generalized anxiety disorder. The highest level of adaptive functioning over the past year was described as having been very poor. Psychosocial stressors were listed as a lack of adequate funds to live independently and no emotional support systems. As a result of the foregoing, a December 1984 rating action increased the schedular rating for the anxiety reaction to 30 percent disabling, effective August 23, 1984. Of record is a June 1985 communication from a social worker at a local mental health center. The social worker had had periodic contacts with the veteran since 1979. continuing problems with depression, alcoholism, and situational difficulties were reported. Another VA psychiatric examination was accorded the veteran in July 1987. He indicated that after hospitalization by VA in 1985, he had stopped drinking alcohol altogether. He was evasive in answering questions and easily became angry and frustrated. He denied a present need for psychotherapy because he stated he had not been drinking. He showed some signs of anxiety, but exhibited no psychotic symptomatology. He appeared to have limited insight and judgment. The Axis I diagnoses were: Anxiety disorder, not otherwise specified; and alcohol abuse, pattern abuse unspecified. There was no Axis II diagnosis. The highest level of adaptive —6— functioning during the past year was described as having been poor. The most recent VA compensation examination of record was performed in January 1992. The veteran indicated that he would get drunk every now and then and his wife stated that he would get into all sorts of trouble because of his drinking. On mental status examination, he was described as overly detailed and uneasy. It appeared that he tended to worry a great deal about a large number of issues. Findings indicative of anxiety and borderline clinical depression were noted. Insight seemed to be almost totally lacking. The Axis I diagnoses were generalized anxiety disorder and dysthymia. The Axis II diagnosis was dependent and passive—aggressive personality traits. The examiner noted that the veteran was only marginally employable because of his psychological makeup and was socially impaired for the same reason. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 US.C.A. § 1155; 38 C.F.R. § 4.1. Under the pertinent code of the Rating Schedule, it is provided that a 30 percent evaluation is in order for generalized anxiety disorder when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. The next higher rating of 50 percent requires that the ability to establish or maintain effective or favorable relationships with people is considerably impaired arid that by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. 38 C.F.R. Part 4, Code 9400. A longitudinal review of the evidence of record discloses that throughout the years subsequent to service the veteran has had ongoing periods of depression and anxiety. We find that his disability picture more nearly approximates considerable as opposed to definite industrial impairment. Since there is a question as to which of the two ratings should be applied, 38 C. F .R. § 4.7 requires that the higher rating should be assigned. He has most recently been described as showing signs of depression and anxiety. Further, he has been described as easily irritated and his insight at the time of the January 1992 rating examination seemed to be almost totally lacking. Limited insight and judgment were also noted at the time of VA psychiatric —7- examination in 1987. Accordingly, we find a 50 percent rating for anxiety disorder is appropriate at this time. II. Right Foot Disability With regards to the veteran’s plantar warts, a review of the service medical records shows that he received treatment in 1955 for plantar warts on both feet. At the time of separation examination in April 1958, notation was made of the presence of bilateral plantar warts. On VA examination in March 1969, there were plantar warts on the balls of both feet at the base of the 2nd and 3rd digits. The right foot exhibited a pigmented overgrowth which the veteran stated was quite painful. There was also a callus on the side of the foot at the base of the right little toe. The wart was painful, to pressure. The diagnosis was disabling bilateral plantar warts, worse on the right. By rating action dated in April 1969, service connection for plaritar warts was granted and a 10 percent evaluation was assigned, effective January 21, 1969. Later in 1969 the veteran had surgery on each foot. VA examination in April 1970 indicated both second metatarsal heads had been resected. Followup examination in 1970 showed there was delayed union of both metatarsal heads. The veteran complained of pain in the feet and was issued special appliances. By rating action dated in September 1970, the plantar warts were rated separately following termination of a temporary total disability rating based on hospitalization from October 6, 1969. A 30 percent evaluation was assigned for plantar warts with resection of the second metatarsal head of the right foot, effective February 1, 1970. A 30 percent evaluation was also assigned for plantar warts with resection of the second metatarsal head of the left foot, effective the same date. At the time of VA rating examination in November 1980, there was no swelling of the feet. The veteran had normal dorsalis pedis and posterior tibial pulses in each foot. There were no plantar warts observed and the soles of each foot appeared normal. The pertinent diagnosis was status post resection of plantar warts, by history. Rating action in December 1980 reduced the evaluation for the plantar warts on the right foot to noncompensably disabling, effective March 1, 1981. Another VA rating examination was accorded the veteran in April 1981. A well-healed surgical scar was noted on the dorsum of the right foot at the level of the second toe into the metatarsal area. It was tender to palpation. Although the veteran alluded to swelling in the foot, this was not shown on examination. Outpatient treatment reports were reviewed and bilateral metatarsalgia over the second metatarsal head was noted. In an April 1981 rating action, the December 1980 rating decision was —8— amended to reflect a 10 percent evaluation for the plantar warts with resection involving the right foot, effective March 1, 1981. Rating examination by VA in September 1984 showed very little, if any, disability involving the right foot. Accordingly, in a December 1984 rating action, a schedular rating of 10 percent was reduced to noncompensably disabling, effective August 23, 1984. On examination by VA in October 1986, it was indicated that an osteotomy of the left foot had been successful. However, as a result of one on the right, the second metatarsal was extremely short, causing the 3rd and 4th metatarsals to bear most of the weight. Additionally, there was a puckering of the skin on the plantar aspect of the second metatarsophalangeal joint from prior surgical procedures. There was reported to be a considerable amount of symptomatology with the condition causing considerable disability of the right foot. Rating action in December 1986 assigned a 10 percent evaluation for the right foot disability, effective October 8, 1986. Another VA rating examination was accorded the veteran in May 1967. He complained of pain in the right foot due to recurrence of his plantar wart. On examination, there was observed a wart, with callus formation, on the plantar aspect of the right foot, with buckling of the skin at the level of the second metatarsophalangeal joint. Although there was overlapping of the 2nd toe over the 3rd, plantar flexion and dorsal extension of the right toes were possible. The diagnosis was recurrent plantar wart of the right foot; status post resection of the second metatarsal head; symptomatic, with moderate disability on ambulation. Medical examination by VA in July 1987 resulted in a pertinent diagnosis of: Plantar wart, resected; status post second metatarsal head resection, right foot, with moderate to severe disability on ambulation, and with a limping gait favoring the right foot. The veteran was accorded an orthopedic examination by VA in September 1987. He reported that treatment for his feet had been through VA during the past year with the use of shoes added with metatarsal bars. He was concerned that the shoes were too big and were uncomfortable. His primary complaint was centered on the right foot. On the plantar aspect of the right foot, there was thickened callus and scarring beneath the second metatarsal head. A surgical scar was present over the dorsum of the distal second metatarsal. Toe alignment and motions of the toe were satisfactory. There was tenderness over the scarred area on the plantar aspect. The left foot showed no callous formation. Skin coverage was good and the foot was well aligned. The arches of both feet were felt to be mildly low, but the heels were in a —9— neutral position. X-ray studies of the right foot showed postoperative changes in the second metatarsal area. There had apparently been an osteotomy carried out with shortening of the toe. The alignment of the toes was otherwise normal. The pertinent impressions included symptomatic plantar callosities of the right foot and status postoperative osteotomy of the second metatarsal head on the right. The examiner recommended better fitting footwear. In a December 1988 decision by the Board, it was found that a 20 percent evaluation for the right foot disability was in order. The June 1987 rating action was amended by rating decision in January 1989 to show a 20 percent evaluation for right foot disability effective October 8, 1986. F. P. Webber, D.P.M., indicated in a December 1991 communication that he had seen the veteran in July of that year for a complaint of a painful right foot. Examination showed a deep, enucleated keratosis on the third metatarsal head on the right. Upon debridement of the area, there appeared to be abundant scar formation. The remainder of the examination was unremarkable. VA orthopedic examination was accorded the veteran in January 1992. It was noted the veteran wore a shoe insert on the right and had a callus trimmed on a monthly basis by his podiatrist. Examination showed a callosity beneath the head of the second metatarsal on the right. Toe motions were free and alignment of the toe was satisfactory. The callus was tender to direct pressure. It was noted that the insole the veteran wore for his right foot did not appear to be giving sufficient relief to the region of the callus below the second metatarsal head. X—ray studies of the right foot were reviewed and were interpreted as showing some shortening of the second metatarsal. The second metatarsophalangeal joint space was well maintained. The pertinent diagnosis was chronic callosity beneath the second metatarsal head secondary to a treated plantar wart. The examiner recommended modification of the insole and paring of the callus. In August 1992, Dr. Webber reported that his treatments, which included constant debridement, had been spaced at one—month intervals since July 1991. He stated this seemed to give only temporary or slight relief to the veteran. He had also fitted the veteran with accommodative inlay supports in an attempt to relieve some discomfort in weight bearing. It was his opinion that the veteran had a rather severe problem which caused him constant pain and discomfort, in addition to difficulty with everyday tasks. The diagnosis was painful scar formation secondary to failed surgical intervention. The prognosis was poor. In view of the foregoing, we are of the opinion that the record concerning treatment and evaluation of the service—connected right —10- foot disability shows some increase in severity. We believe that the disability picture more nearly approximates severe as opposed to moderately severe impairment. When there is a question as to which of two ratings shall be applied, 38 C.F.R. § 47 requires that the higher rating shall be assigned. Under the rating schedule, Diagnostic Code 5283 provides for a 20 percent disability rating when there is malunion or nonunion of the tarsal or metatarsal bones providing moderately severe impairment. The maximum rating of 30 percent is assigned when that degree of severity is severe. With actual loss of use of the foot, a 40 percent evaluation is in order. We note that in this case there has been no showing whatsoever that the veteran has loss of use of the right foot. A review of the record shows the veteran has tried modification of his right insole to give more relief to his calloused area, but the modifications have not been of much help. When examined by VA in January 1992, the calloused area was tender to direct pressure. It was indicated at that time the veteran had a callosity trimmed on a monthly basis by his podiatrist. It was further indicated the insole he was wearing for the right foot was not giving sufficient relief to the region of the callus below the second metatarsal head. Also, the podiatrist the veteran sees on a regular basis for the monthly debridement stated later in 1992 that the debridement provided only temporary or slight relief to the veteran. The podiatrist expressed the opinion that the veteran had a rather severe problem which caused him constant pain and discomfort, in addition to difficulty with everyday tasks. Accordingly, we find that the evidence of record supports the veteran’s claim for a higher schedular rating and a 30 percent evaluation for the right foot disability is appropriate at this time. 38 C.F.R. Part 4, Diagnostic Code 5283. III. Low Back Disability With regards to the veteran’s low back disability, on orthopedic examination by VA in June 1972, the examiner expressed the belief that the veteran’s locomotion problems connected with his service- connected bilateral foot disorder contributed to his persistent back pain. The diagnosis was chronic, moderately severe luinbosacral strain. In a January 1973 rating decision, service connection for lumbosacral strain was granted and a 20 percent evaluation was assigned, effective June 20, 1972. Examination by VA in November 1980 resulted in a notation of lumbosacral strain by history only. At the time of VA examination in September 1984, there was no paravertebral muscle spasm or tenderness of the spine. Flexion was to 85 degrees, extension was to 35 degrees, lateroflexion was to 40 degrees, and rotation was 35 degrees. Straight leg raising was normal. X—ray studies showed mild degenerative changes, but —11— were otherwise unremarkable. The examination diagnoses included chronic low back pain of undetermined causation. Rating action in December 1984 reduced the evaluation for the lumbosacral strain to 10 percent disabling, effective August 23, 1984. Subsequent evidence includes a report of VA orthopedic examination of the veteran in September 1987. On examination of the back, there was no muscle spasm present. There was tenderness at the luixibosacral level of a mild degree in the midline and to the right. On forward bending, the veteran was able to reach just below the level of the knees before complaining of some discomfort. He was able to walk on his heels, but toe walking was not attempted because of discomfort in the right toot. eg lengths were equal. Reflexes and sensations were intact. An X—ray study of the lumbosacral spine was essentially unremarkable, except for some minimal degenerative changes. The pertinent diagnosis was chronic low back complaints, without evidence of neurological change or sciatica. The most recent medical evidence of record with regards to the back is the report of a VA orthopedic examination in January 1992. At that time, the veteran was able to reach to just below the knee. Flexion was to 50 degrees, while extension was to 25 degrees. Right and left lateral bending was to 30 degrees and rotation to the right and left was to 70 degrees in each direction. There was some complaint of discomfort on extremes of motion. Reflexes and sensation were intact in both lower extremities. The diagnosis was recurrent low back discomfort without evidence of neurological or X—ray changes. Under the rating schedule, Diagnostic Code 5295 provides for a 20 percent rating when the evidence of record shows muscle spasm on extreme forward bending, with loss of lateral spine motion. The next higher rating of 40 percent is provided when the lumbosacral strain is severe, with listing of the whole spine to the opposite side, positive Goldthwait’s sign, with loss of lateral motion with osteoarthritic changes, or with narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. In the alternative, under Diagnostic Code 5292, a 20 percent evaluation is for assignment when there is motion restriction of the lumbar spine which is moderate. The next higher evaluation of 40 percent is provided when the motion restriction of the lumbar spine is severe. Following the January 1992 VA rating examination, in a rating decision dated in March 1992, the RO increased the evaluation for the veteran’s lumbosacral strain to 20 percent disabling effective April 16, 1990. It is our opinion that the medical evidence of record does not show findings which would warrant the assignment of a rating in excess of 20 percent at this time. As noted above, when examined by VA in 1987, there was no evidence of - 12 — neurological change or sciatica. Further, no muscle spasm was demonstrated. On forward bending, the veteran was able to reach to just below the level of the knees before complaining of any discomfort. The findings on the more recent orthopedic examination by VA in January 1992 showed more restricted motion of the back, but not so much restriction that an increased rating would be in order. Forward flexion was to 50 degrees, as opposed to an average normal range of motion of the lumbar spine on forward flexion of 95 degrees. Extension backward was to 25 degrees, with the average normal range being to 35 degrees. Lateroflexion was to 35 degrees, while the average normal range of motion is about 40 degrees. These average ranges of motion are found in the VA Physician’s Guide for Disability Evaluation Examinations 2-10 (1985). In our opinion, the amount of motion restriction of the low back demonstrated by the recent medical evidence equates to moderate motion restriction, but no more. Accordingly, an increased evaluation for the veteran’s back disability is not in order at this time. IV. Unemployability As has been discussed above, we find that the clinical evidence of record shows that the veteran’s psychiatric disability and his right foot disability have given him significant problems in the recent past. In view of this, and in view of the fact that he has not worked for a number of years, we find no indication in the evidence of record that there is any occupation for which he is currently qualified. The question of entitlement to disability benefits for respiratory disability due to VA treatment as been deferred pending promulgation of regulatory criteria. However, even without considering the impact of his pulmonary symptomatology, we find that he is precluded from obtaining and maintaining any type of gainful employment because of the severity of his current service-connected disabilities. In evaluating whether the service-connected disabilities preclude substantially gainful employment, the VA Adjudication Manual, M21-1, paragraph 50.55 (8) defines “substantially gainful employment” as “that which is ordinarily followed by the nondisabled to earn their livelihood with earnings, and to the particular occupation in the community where the veteran resides.” This suggests a living wage. Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet.App. 356, 358 (1991). We note that the VA psychiatric examination in early 1992 resulted in a comment by the examiner that the veteran was only marginally employable because of his psychological makeup. In considering the veteran’s orthopedic impairment, we note that the veteran’s treating podiatrist has recently expressed an opinion that the recurrent calluses on the right foot posed a rather severe problem for him and would continue to bother him and cause him difficulty in everyday tasks. — 13 — The veteran was not as cooperative as one would like in his discussion with the VA vocational rehabilitation counseling officer at the RO in January 1990, but we find that the overall impact of his service-connected disabilities is sufficiently incapacitating that a total compensation rating based on unemployability is warranted. ORDER A 50 percent rating for generalized anxiety disorder is granted, subject to the applicable criteria governing the payment of monetary benefits. A 30 percent rating for plantar warts with resection of the second metatarsal head of the right foot is granted, subject to the applicable criteria governing the payment of monetary benefits. A total rating based on unemployability due to service—connected disabilities is granted, subject to the applicable criteria governing the payment of monetary benefits. A rating in excess of 20 percent for lumbosacral strain is denied. BOARD OF VETERANS’ APPEALS WASHINGTON, D.C. 20420 John J. CASTELLOT SR., M.D. ROBERT E. SULLIVAN (CONTINUED ON NEXT PAGE) — 14 — *38 U.S.C.A. § 7102(A)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence or a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United Sates Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, §402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.