Citation Nr: 9935140 Decision Date: 12/17/99 Archive Date: 12/23/99 DOCKET NO. 97-13 509A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a permanent and total disability rating for nonservice-connected pension purposes or extra-schedular entitlement to a pension under the provisions of 38 C.F.R. § 3.321(b)(2) (1999). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Cain, Associate Counsel INTRODUCTION The veteran had active service from December 1951 to December 1953. This appeal comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), in which the RO found that the veteran was not entitled to non-service connected pension. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The veteran served over 90 days in the military during the Korean Conflict. 3. The veteran has dementia of Alzheimer's type which is manifested by occupational and social impairment deficiencies in most areas due to such symptoms as impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, impaired memory, and an inability to establish and maintain effective relationships. 4. The veteran's dementia of Alzheimer's type is permanent. 5. The veteran's dementia of Alzheimer's type prevents him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The veteran is permanently and totally disabled for nonservice-connected pension purposes. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(2), 4.17(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 evidence supports the grant of a non-service connected pension. The veteran has submitted evidence that he is not employed, and that he suffers from disabilities that he contends preclude gainful employment. Therefore, his claim for entitlement to non-service connected pension benefits is plausible and well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that the evidence submitted is adequate to render judgment on the veteran's appeal. This evidence includes VA examinations, private medical records, a social and industrial field survey, and a transcript of the veteran's sworn testimony in a hearing held before a hearing officer sitting at the local RO. Therefore, the Board finds that all relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Pension benefits are 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 non-service connected disabilities that are not the result of his own willful misconduct. 38 U.S.C.A. § 1521 (West 1991). 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. See Talley v. Derwinski, 2 Vet. App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15 (1999). There are three alternative bases upon which a finding of permanent and total disability for pension purposes may be established. One way is to establish that the veteran has a lifetime impairment which is sufficient to render it impossible for an "average person" to follow a substantially gainful occupation under the appropriate diagnostic codes of the VA Schedule for Rating Disabilities (Rating Schedule). The "average person" standard is outlined in 38 U.S.C.A. § 1502(a)(1) (West 1991) and 38 C.F.R. §§ 3.340(a), and 4.15 (1999). This process involves rating and then combining each disability under the appropriate diagnostic code to determine whether the veteran holds a combined 100 percent schedular evaluation for pension purposes. However, a veteran who suffers the permanent loss of one or more limbs, or the sight in both eyes, or becomes helpless or permanently bedridden, will be considered permanently and totally disabled for pension purposes on a de facto basis. 38 C.F.R. § 4.15 (1999). Permanent and total disability evaluations for pension purposes may also be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary, or other familial conditions, as well as for disabilities that require indefinite periods of hospitalization. 38 C.F.R. § 3.342(b) (1999). Alternatively, a veteran may establish permanent and total disability for pension purposes absent a combined 100 percent schedular evaluation by proving that the individual (as opposed to the average person) has a lifetime impairment precluding the veteran from securing and following substantially gainful employment. See 38 U.S.C.A. §§ 1502, 1521(a) (West 1991); 38 C.F.R. § 4.17 (1999). Under this analysis, even if there is only one such disability, it must be ratable at 60 percent or more, and; if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, with a combined disability rating of at least 70 percent. However, even if a veteran cannot qualify for permanent and total disability under the above rating scheme, a permanent and total disability rating for pension purposes may be granted on an extra-schedular basis if the veteran is subjectively found to be 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) (1999). Disability evaluations are determined by evaluating the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Although VA must consider the entire record, the most pertinent evidence, because of effective date law and regulations, is created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991). VA utilizes a rating schedule, which is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation's or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). When utilizing the rating schedules, when an unlisted condition is encountered, the VA is permitted 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. 38 C.F.R. § 4.20 (1999). It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). The record reflects that the veteran was born in December 1931. He completed the ninth grade of high school. He served over 90 days in the military during the Korean Conflict from December 1951 to December 1953. Thus, he has met the service criteria for non-service connected pension. After his separation from service the veteran devoted his career to farming. The record also indicates that the veteran in 1955 took a course in plumbing and pipe fitting. The veteran's June 1996 application for pension indicated that he had not worked since 1993. In the March 1997 rating decision from which the veteran has appealed, the RO has listed the veteran's disabilities as follows: no specific psychiatric disorder, benign prostatic hypertrophy, and postural vertigo, each rated as noncompensable. A combined disability evaluation based on these ratings would be noncompensable. Previously, a September 1996 rating decision had assigned a 100 percent rating for primary degenerative dementia of the Alzheimer type and had found the veteran permanently and totally disabled. The RO used Diagnostic Codes 9399-9334 to rate the veteran's non-specified psychiatric disorder. It had used Diagnostic Code 9312 to rate dementia of Alzheimer's type. Under the General Rating Formula for Mental Disorders set forth in the Schedule, a 100 percent rating is assigned 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 name of close relatives, own occupation, or own name. A 70 percent rating is assigned for 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 irritability, with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned 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 and maintaining effective work and social relationships. 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, mild memory loss (such as forgetting names, directions, recent events). 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. The evidence of record supports the assignment of a 70 percent disability evaluation for the veteran's nonservice- connected disability for his dementia. In so concluding, the Board notes that the evidence is not consistent concerning the level of the veteran's disability. The Board finds, however, that the evidence is in relative equipoise. Thus, reasonable doubt must be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1999). Reports of various VA examinations in August 1996, performed by three different physicians, contain pertinent diagnoses in the neurological report as dementia and in the psychiatric report as primary degenerative dementia of the Alzheimer's type. None of the examiners noted any indication that the veteran was not truthful. The reports of neurological and general medical examinations referred to a brain SPECT of January 1996, which had shown slightly decreased activity in both temporal lobes suggestive of early Alzheimer's disease. The report of a November 1996 VA psychiatric examination also contains a diagnosis of "very early organic changes" but notes that there was no specific psychiatric disorder for an Axis I determination. The November 1996 report of VA examination for the need for aid and attendance, performed by another physician, contains a diagnosis of primarily dementia, Alzheimer's disease. Both reports noted the veteran's memory problems and neither examiner expressed an opinion that the veteran was untruthful. The report of a February 1997 social and industrial survey indicates that the veteran and two neighbors were interviewed. He was described as living with his wife in a rural area. The veteran reported that he basically stayed at home, watching television, listening to the radio, and reading the newspaper, and that he would go out to church or to visit relatives. One neighbor essentially concurred in the veteran's description, describing him as depressed, and noting that he had become less communicative and only went out to church or to visit the doctor. The other neighbor described the veteran's behavior as "normal", and reported that he visited church frequently, where he spoke with others in a logical and coherent fashion, and that he also attended funerals and visited the sick. VA treatment records dated in 1997, including a July 1997 neuropsychological report, indicate that the veteran was seen for possible dementia versus depression. The July 1997 report indicates that the veteran "once again reacted helplessly during examination, presenting himself as severely mentally limited. Diminished effort was perceived." The examiner noted that present and past test results lacked internal consistency and could not be presumed valid and reliable indicators of the veteran's metal status. The examiner noted that the inconsistency could be due to confusion, to intentional or unintentional symptom exaggeration, or a combination of factors. The examiner noted that personality screening suggested strong somatization tendencies, adding that, should there really be significant cognitive limitations they were clouded by a very heavy functional overlay. The clinical impression was deferred. It was noted that a demential process could not be ruled out, but that this was "far from a typical presentation." The February 1998 VA examiner, who had examined the veteran in August 1996, noted that the veteran kept looking at the floor, and began moving his hands and his legs at the end of the interview. He added that the veteran's behavior had a strong voluntary component. His diagnoses were depressive disorder, not otherwise specified, and dependent personality features. He added that the veteran's behavior, as corroborated by the neuropsychological evaluation, the CT scan of the brain, social and industrial field survey, and current and previous examination, did not correspond to a typical symptomatology of dementia. The record also contains several statements from Arturo Torres Machin, M.D., who had treated the veteran since 1994. He described the veteran as "subthymic personality" due to poor brain function. His diagnostic impression in January 1998 included vertigo secondary to episodes of ischemia in the brain; arteriosclerotic plaques at the carotids with obstruction of blood flow; subthymic personality with bashful thymic personality making him non-productive; early Alzheimer's changes of the brain, with reference to CT scan and "abundant symptomatology"; and impulsive and aggressive personality. In a January 1998 hearing the veteran's wife testified that the veteran had memory loss and developed violent behavior. The February 1998 VA examination report contains a GAF score of 65. The same examiner assigned a GAF score of 50 in August 1996 VA, and indicated that the veteran's concentration was impaired, his memory was grossly impaired, and he was unable to recall any objects out of the three after two minutes. He was then diagnosed with degenerative dementia of Alzheimer's type. The Board notes that even though the most recent VA examination indicated that the veteran did not suffer from dementia, the previous VA examinations and private medical records indicated that the veteran suffered from dementia of Alzheimer's type, and the VA treatment records indicate that the veteran is being treated for his various complaints, including memory problems. In short, some of the evidence suggests a strong voluntary component to the veteran's behavior. Other evidence - including some tests such as CT scans - suggests that the veteran does have some type of dementia. Yet other evidence suggests that he has a psychiatric disorder in addition to, or instead of, dementia. The medical evidence is equivocal. Likewise, the social and industrial survey report is equivocal - one neighbor's description corroborates the veteran's statement, although the other neighbor's description does not. As the evidence, both medical and lay, is in equipoise, the veteran will be afforded the benefit of any doubt that may arise in this case, 38 C.F.R. § 3.102, and the Board will find that his dementia of Alzheimer's type is 70 percent disabling for pension purposes because the evidence of record suggests that he had manifested occupational and social impairment deficiencies in most areas due to such symptoms as impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, and the inability to establish or maintain effective relationships. The Board does not find that his dementia is rated at 100 percent disabling because there is no evidence that he suffers gross impairment in thought processes or communication; persistent danger of hurting self or others; or intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). As mentioned above a veteran who does not have a combined 100 percent schedular evaluation may establish permanent and total disability for pension purposes, if he has a lifetime impairment precluding him from securing and following substantial gainful employment and if there is only one such disability, it must be ratable at 60 percent or more or if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, with a combined disability rating of at least 70 percent. The Board notes that the veteran has a diagnosis of dementia of Alzheimer's type. The Board for this case will concede that dementia of Alzheimer's type is a disability that presents a lifetime impairment precluding him from securing and following substantial gainful employment. The Board further notes that the veteran's dementia of Alzheimer's type is a single disability that has been evaluated at 70 percent disabling. Thus, the veteran has a single disability evaluated at 60 percent or more disabling. After consideration of the evidence, the Board finds that the evidence of record shows the veteran's disability is permanent within the meaning of 38 C.F.R. § 4.15 (1999). Therefore, the veteran meets the "average person" test contained in 38 U.S.C.A. § 1502(a)(1) and 38 C.F.R. § 4.15 (1999). The Board thus concludes that the veteran is entitled to a non-service connected pension. ORDER Entitlement to non-service connected pension is granted, subject to the controlling regulations applicable to the payment of monetary benefits. MARY GALLAGHER Member, Board of Veterans' Appeals