Citation NR: 9701555 Decision Date: 01/17/97 Archive Date: 02/03/97 DOCKET NO. 95-06 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to nonservice-connected pension by reason of permanent and total disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Schimpf, Associate Counsel INTRODUCTION The veteran has confirmed active service from July 1971 to August 1972. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a February 1994 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is permanently and totally disabled as a result of his disabilities. He specifically states that he is unable to work because of his sinus condition and his headaches. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for a permanent and total disability rating for pension purposes. 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 veteran was born in April 1953, and has a high school education. He has occupational experience as a carpenter. His last reported employment was in May 1993. 3. The veteran’s principal disabilities are nonservice connected residuals of sinusitis, rated as 10 percent disabling, and tension headaches, rated as 10 percent disabling. He also has residuals of a skull fracture, impaired vision, and loss of hearing, each rated as noncompensable. 4. The veteran’s sinusitis is manifested by subjective complaints of post nasal drip, trouble breathing and insomnia. X-rays indicated mild maxillary sinusitis. There was no mucous present in the pharynx. 5. The veteran’s tension headaches are manifested by severe frontal headaches. 6. The record reflects no active symptoms of residuals of a skull fracture, impaired vision and loss of hearing. 7. The veteran’s disabilities are not productive of total disability sufficient to render the average person unable to follow a substantially gainful occupation. 8. The veteran’s disabilities do not permanently preclude him from engaging in substantially gainful employment, consistent with his age, education and occupational history. CONCLUSION OF LAW The veteran is not permanently and totally disabled within the meaning of governing law and regulations. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, and Part 4 §§ 4.15, 4.16, 4.17, 4.25 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board concedes that the veteran has presented a claim which is “well-grounded” or plausible within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled, as there is no indication of additional available evidence which would be relevant to the veteran’s claim. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). I. Factual summary At his October 1973 VA examination, the veteran stated that he received a medical discharge from service in August 1972. Prior to his entrance to service in 1959 or 1960 he injured his head, was hospitalized, and reportedly lost his vision and hearing for about a week. In a June 1980 statement he indicated that he had no other complications after this injury until he entered service in 1971. At that time he experienced seizures, severe headaches, a sinus condition, a “neuropsychiatric” condition, hearing loss, and a temporary loss of vision. After his release from service he stated that he continued to experience severe headaches. In response to his request for nonservice connected pension benefits, the RO requested that the veteran provide medical evidence to establish the presence of his disability. The veteran submitted an April 1975 decision which denied the veteran entitlement to Social Security benefits, including Disability Insurance Benefits. The veteran stated that he could not afford a private medical examination which would establish his medical disabilities, and requested a VA medical evaluation. In December 1993 a VA examination was conducted at the Bay Pines, Florida, VA Medical Center (MC). His subjective complaints included severe frontal headaches, trouble breathing due to post nasal drip, and he stated that he coughed up mucous frequently. He complained about insomnia and recent memory loss at times. He stated that he experienced minimal back pain, but that this does not bother him, and he gave a history of a sinus condition. Upon examination his pharynx was slightly injected and granular, and there was no mucous present. There was no hearing loss of normal conversation. His pupils were equal, and reacted to light and accommodation, and extraocular movements were normal. His cardiovascular system was determined to be normal and his blood pressure was 110/70 when sitting. His respiratory, digestive and genitourinary systems were all normal upon examination. The range of motion of his back, neck and extremities was recorded as normal. The patellar reflexes of his neurological system were equal and active. The diagnosis was tension headaches, and chronic sinusitis with post nasal drip by history. Additionally, a VA mental disorders examination was performed in December 1993. At this examination the veteran voiced the same symptoms as detailed above. He stated that he was currently unemployed, had worked previously as a carpenter, but had not been able to get work for about 7 months. The examiner noted that he had a mild depressive trend and had some memory difficulties. He did not notice any overt psychiatric difficulties. The examiner did not diagnose any psychiatric disorder, but recommended a neurological examination, because he felt his symptomatology was more neurologic than psychiatric. In July 1995 the veteran offered testimony at a hearing before a Hearing Officer. He stated that he had training in carpentry and the culinary arts and that he had completed 12 years of school. He noted that he had various disabilities but that his sinus and headaches were the disabilities that impaired his ability to obtain and retain employment. II. Legal analysis The law provides that pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities, not the result of his own willful misconduct. 38 U.S.C.A. § 1521 (West 1991); 38 C.F.R. § 3.342 (1995). A person shall be considered to be permanently and totally disabled if such person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from--(1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the lifetime of the disabled person; or (2) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C.A. § 1502 (West 1991). A person is to be considered “totally” disabled when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a) (1995). The rating is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15 (1995). A person is to be considered “permanently” disabled when the person is found to be unemployable as a result of a disability reasonably certain to last throughout the remainder of the person’s life. 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. §§ 3.340(b), 4.15 (1995); Talley v. Derwinski, 2 Vet.App. 282, 285 (1992). VA regulations also provide that the presence of certain disabilities may provide a basis for permanent and total disability. Permanent loss of the use of both hands, or of both feet or of one hand and one foot, or the sight of both eyes is considered permanent and total disability for pension purposes. 38 C.F.R. § 4.15 (1995). In addition, VA Regulations provide that totally incapacitating diseases and injuries of long-standing will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340(b) (1995). Furthermore, permanent total disability pension ratings will also be authorized for congenital, developmental, hereditary, or familial conditions, provided other requirements of entitlement are met. Permanent total disability pension will also be awarded for certain types of disabilities requiring hospitalization for indefinite periods or, as with active pulmonary tuberculosis, after six months’ hospitalization without improvement. 38 C.F.R. § 3.342(b)(1995). The VA’s Schedule for Rating Disabilities (Rating Schedule) also provides a means for objective determination of total disability. When impairment is commensurate with a 100 percent rating in accordance with schedular criteria, a total rating on a schedular basis is warranted. 38 C.F.R. § 3.340(a)(2)(1995). For pension purposes, when the basic eligibility requirements are met as well as the percentage requirements, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 38 C.F.R. §§ 4.16, 4.17 (1995). In making such determinations, marginal employment may be consistent with unemployability if the restriction of securing or retaining better employment is due to disability. Id. Marginal employment consists of employment as, for example, a self-employed farmer, while employed in his own business, or at odd jobs, or while employed at less than half the usual remuneration. Id. In individual cases, full consideration will be given to such factors as unusual physical or mental defects, peculiar effects of occupational activities, defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and the effect of combinations of disabilities. 38 C.F.R. § 4.15 (1995). In addition, 38 C.F.R. § 4.17(b) states that where the veteran fails to meet the percentage requirements, but meets basic eligibility criteria and is unemployable, consideration of 38 C.F.R. § 3.321(b)(2) is appropriate. This regulation provides that where the veteran does not meet the percentage requirements of the Rating Schedule, but is unemployable by reason of his age, occupational background, or other related factors, a permanent and total disability rating on an extra- schedular basis is warranted. 38 C.F.R. § 4.17(b) (1995). The Board must review the veteran’s case in light of identifiable disabilities and symptomatology associated therewith. The veteran’s sinus condition is manifested by subjective complaints of post nasal drip, trouble breathing and insomnia. X-rays indicated mild maxillary sinusitis. There was no mucous present in the pharynx. Under Diagnostic Code (DC) 6512, a 10 percent rating is warranted. He does not exhibit moderate symptoms, with discharge or crusting or scabbing and infrequent sinus related headaches. The veteran’s tension headaches are manifested by complaints of severe frontal headaches. Under DC 8100, no more than a 10 percent rating is warranted on the basis that the symptoms produce characteristic prostrating attacks averaging one in 2 months over the last several months. While the veteran has reported that he experiences headaches on a daily basis, the medical record does not indicate he experiences symptoms of such severity as to be considered analogous to migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. In fact, he reported on VA examination in December 1993 that the headaches are relieved by medication. Residuals of a skull fracture are rated under DC 5296. A 10 percent rating is assigned where there has been a loss of part of the skull, with the area smaller than the size of a 25-cent piece. Based on the evidence of record and the above criteria, the Board finds that the veteran’s residuals of a skull fracture warrants a noncompensable rating because no residuals are documented within the record. Under the applicable criteria, impaired vision is rated under DC 6099-6079. Under this DC a 10 percent rating is assigned when vision in one eye is 20/70 and in the other eye is 20/40. Based on the evidence of record and the above criteria, the Board finds that the veteran’s impaired vision does not currently warrant a compensable evaluation. The veteran’s loss of hearing is rated under DC 6100. Under these criteria, service connected hearing loss disability is determined by application of a rating schedule that establishes acuity levels, ranging from Level I (for essentially normal acuity) through Level XI (for profound deafness). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 through 6110 (1995). Based on the evidence of record and the above criteria, the Board finds that the evidence of record does not establish the presence of a compensable hearing loss. The veteran’s combined rating is 20 percent in accordance with the provisions of 38 C.F.R. § 4.25. The combined 20 percent rating represents the average wage-earning impairment caused by the veteran’s disabilities. As noted above, entitlement to pension benefits may be granted if the veteran is unemployable as a result of a permanent disability or experiences a disability which would preclude an average person from following a substantially gainful occupation, if it is reasonably certain that such disability is permanent. 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. § 4.15 (1995). The Board notes that a total disability rating for the veteran’s disorders is not warranted under applicable schedular criteria contained in the Rating Schedule. As noted above, the combined effect of the veteran’s disabilities is appropriately designated as 20 percent disabling. Although the veteran’s disabilities may be considered to be of a permanent nature, the disorders are clearly not representative of total disability in accordance with applicable schedular criteria or applicable regulations. 38 C.F.R. Part 4, §§ 4.16, 4.17 (1995). Upon a review of the clinical findings of records referable to the veteran’s disabilities and in consideration of the Rating Schedule with regard to such disabilities, the Board concludes that the veteran’s disabilities would not preclude an average person from securing and following substantially gainful employment. We emphasize that the veteran’s combined rating represents average wage-earning impairment. None of the veteran’s disabilities, either in combination or alone, are so severely disabling as to render him permanently unemployable. He has no more than mild symptoms of sinusitis with complaints of severe headaches which are relieved by medication. While these disabilities may preclude some physically strenuous work, the Board does not find that there exists impairment sufficient to render it impossible for the average person to follow a substantially gainful employment. As the veteran’s disabilities do not meet the percentage requirements of 38 C.F.R. § 4.16, applied to pension cases through 38 C.F.R. § 4.17, the Board must determine whether he would be eligible for pension benefits based upon subjective criteria, including consideration of his age, education and occupational history, and unusual physical or mental effects. 38 C.F.R. §§ 3.321, 4.15 (1995). In this regard, we note the record reflects that he was born in April 1953, has a high school education, and has work experience as a carpenter. His last reported employment was May 1993. Thus, the record indicates that the veteran’s occupations have primarily involved manual labor. We note that the veteran’s education is limited. However, the clinical data of record, particularly the recent VA examination, does not reflect that the veteran’s activity would be so limited as to render him unable to follow substantially gainful employment consistent with his occupational history. Specifically, the Board cannot find that his disabilities would preclude him from substantially gainful employment which involves light manual labor. Limitation of function to the extent that the veteran would be rendered unemployable is not clinically substantiated in the record, as illustrated by the 20 percent evaluation in effect for all of the veteran’s principal disabilities and which appropriately represents overall impairment associated therewith. In reaching its decision, the Board has noted the veteran’s subjective complaints and testimony, but upon consideration of the combined effect of the veteran’s disabilities as shown by the objective medical evidence of record, in addition to the veteran’s age, education and occupational history, the Board is not persuaded that the veteran is permanently and totally disabled. An allowance of pension benefits, therefore, is also not warranted based upon subjective criteria. 38 C.F.R. §§ 3.321, 4.15 (1995). Accordingly, the veteran’s claim is denied. ORDER Entitlement to a permanent and total disability evaluation for pension purposes is denied. JAMES W. ENGLE Acting Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (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. - 2 -