Citation Nr: 0718516 Decision Date: 06/20/07 Archive Date: 06/29/07 DOCKET NO. 02-16 292 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a permanent and total disability rating for pension purposes, to include under the provisions of 38 C.F.R. § 3.321(b)(2). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Hager, Associate Counsel INTRODUCTION The veteran had active service from July 1974 to May 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision in which the RO denied entitlement to a permanent and total disability rating for nonservice-connected pension purposes. The veteran filed a Notice of Disagreement (NOD) in November 2001, and the RO issued a Statement of the Case (SOC) along with a Decision Review Officer (DRO) decision in August 2002. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in October 2002. In January 2004, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further development. After accomplishing further action, the RO/AMC continued the denial of the claim (as reflected in a January 2006 Supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. In October 2006, the Board again remanded the claim to the RO via the AMC, for additional development. After accomplishing further action, the RO/AMC continued the denial of the claim, as reflected in the November 2006 SSOC), and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Although the Social Security Administration (SSA) found the veteran disabled, this finding was based primarily on the veteran's mood disorders, which the medical evidence indicates are due to the veteran's wilful misconduct, i.e., his drug and alcohol abuse. 3. The Board's consideration of each of the veteran's current disabilities indicates a combined schedular rating of 50 percent, which fails to satisfy the requirements under the objective standard for a total rating for pension purposes of a combined 100 percent rating. 4. The veteran's disabilities-to include degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine, DJD of the lumbar spine, headaches, and hepatitis C-produce no more than slight-to-moderate overall functional impairment. 5. The veteran is fifty years old, has a GED degree, and has been unemployed and receiving SSA disability since 1992. 6. The veteran's disabilities that are not due to his drug and alcohol abuse are not of sufficient severity to preclude him from maintaining substantially gainful employment, consistent with his age, educational background, and occupational experience. CONCLUSION OF LAW The criteria for assignment of a permanent and total disability rating for VA pension purposes, to include under the provisions of 38 C.F.R. § 3.321(b)(2), are not met. 38 U.S.C.A. §§ 105(a), 1155, 1502, 1521, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.321, 3.342, 4.15, 4.17, 4.40, 4.45, 4.124a, DCs 8100, 9304, 4.130, DC 9499-9405, 4.71a, Diagnostic Codes 5287, 5289, 5290, 5292, 5293, 5295 (as in effect prior to September 26, 2003) and General Rating Formula (as in effect since September 26, 2003), 4.114, DC 7345 (as in effect prior to and since July 2, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2006)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). Notice requirements under the VCAA essentially require VA to notify the veteran of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include via the AMC). Id.; see also Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in June 2005 and November 2, 2006 letters, the RO and AMC, respectively, provided notice to the veteran regarding what information and evidence was needed to substantiate the claim for a permanent and total disability rating for pension purposes on a schedular and extraschedular basis, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. The November 2, 2006 letter informed the veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. After issuance of each notice described above, and opportunity for the veteran to respond, the November 30, 2006 SSOC reflects readjudication of the claim. Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent evidence associated with the claims file consists of the veteran's post-service private and VA medical records, the records relating to the Social Security Administration's (SSA's) disability determination, and reports of VA examination. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO (to include via the AMC), the veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis A. Applicable Legal Principles Under provisions of 38 U.S.C.A. § 1521 (West 2002 & Supp. 2006), VA 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 nonservice-connected disabilities not the result of his or her own willful misconduct. 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2006). 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 (2006). 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) (West 2002 & Supp. 2006); 38 C.F.R. § 4.15 (2006). 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 (2006). The provisions of 38 U.S.C.A. § 1502 (West 2002 & Supp. 2006) were amended, effective in September 2001, to provide that 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 evaluation 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) (2006). 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) (West 2002 & Supp. 2006); 38 C.F.R. § 4.17 (2006). 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. A veteran who is considered permanently and totally disabled under these criteria is then awarded a 100 percent schedular rating for pension purposes. 38 C.F.R. § 4.17 (2006). 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) (2006). B. SSA Determination and Willful Misconduct Initially, the Board notes that in a June 1993 decision, SSA found the veteran disabled. The cover sheet of a September 1998 SSA Continuance of Disability Transmittal indicates a primary SSA disability diagnosis of mood disorders and a secondary diagnosis of disorders of the back. Although a veteran is generally considered disabled when SSA determines he is disabled, see 38 U.S.C.A. § 1502(a)(2) (West 2002 & Supp. 2006), this provision is inapplicable in the present case because the veteran's mood disorders have been found to be due to his own willful misconduct. See 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2006) (providing for pension for veterans who are permanently and totally disabled due to nonservice-connected disabilities not the result of his or her own willful misconduct) (emphasis added). Willful misconduct is an act involving conscious wrongdoing or a known prohibited action. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances did not per se constitute willful misconduct and willful misconduct as not determinative unless it is the proximate cause of injury, disease or death. 38 U.S.C.A. § 105(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.1(n) (2006). When a veteran drinks alcoholic beverages to enjoy their intoxicating effects and the intoxication results in disability, such disability will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2) (2006). When a veteran progressively and frequently uses drugs to enjoy or experience their effects and these effects result in disability, such disability is considered the result of the veteran's own willful misconduct. 38 C.F.R. § 3.301(c)(3) (2006). In this appeal, the medical evidence of record reflects that the veteran's psychiatric disabilities, including his mood disorder, are the result of his willful misconduct. The physician who prepared the September 2005 VA psychiatric examination report wrote that "the veteran's history of depression and mood disorder appears to be most likely the direct result of chronic substance abuse." He also noted that the veteran's prior diagnoses of bipolar disorder were "generally made during periods of active substance abuse and dependence, and is most likely the result of substance induced mood disorder." The physician noted that, in the report of a November 1991 examination for the Pennsylvania Bureau of Disability Determination, Dr. Medlock noted the veteran's history of alcohol and multiple substance abuse and that the veteran still admitted to using marijuana weekly and occasionally getting drunk. A March 2003 VAOPT record noted recent illicit drug use and a history of alcohol abuse. The private and VA medical records, as well as the June 2002 and September 2005 VA examination reports, include notations as to the veteran's history of substance and alcohol abuse. The Board further notes that there is no medical opinion indicating that the veteran's psychiatric disabilities are not the result of his willful misconduct. Accordingly, as the mood disorders that were among the bases for SSA's finding of disability have been determined to be the result of the veteran's own willful misconduct, these disabilities cannot serve as the basis for a finding of permanent and total disability under 38 U.S.C.A. § 1502(a)(2). C. Disabilities Not the Result of Willful Misconduct As for the disabilities that are not the result of the veteran's willful misconduct, the Board will first consider whether the RO has assigned an appropriate schedular rating for each such disability. These include cervical and lumbar spine disabilities, a personality disorder, headaches, and hepatitis C. The Board notes that the October 2006 remand included instruction, after accomplishing other action, that the RO rate each of the veteran's current disabilities under the criteria of VA's rating schedule (consistent with the argument raised by the veteran's representative in a February 2003 Informal Hearing Presentation). While the RO did not again rate the disabilities in conjunction with the remand, the Board notes that the RO has rated the veteran's disabilities (as reflected in the August 2001 rating decision and the August 2002 DRO decision), and there is sufficient evidence in the claims file to enable the Board to determine that the veteran's disabilities have not increased substantially to the extent that they approach a schedular 100 percent rating, for the reasons explained below. Consequently, the Board finds that the veteran is not prejudiced by the Board rating each disability based on the evidence following the RO's last rating of these disabilities. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Cervical and Lumbar Spine Disabilities The veteran was injured while a passenger in an automobile accident in September 2001. He complained of headache and neck pain, moved all of his extremities well, and was treated and released. Subsequent treatment records described in detail below reflect that the September 2001 automobile accident resulted in cervical and lumbar spine disabilities. The rating criteria for diseases of the spine changed, effective September 26, 2003. As there is no indication that the revised criteria are intended to have a retroactive effect, the Board has the duty to consider claims only under the former criteria for any period prior to the effective date of the revised criteria, and to consider the revised criteria for the period beginning on the effective date of such criteria. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSouza v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3- 2000 (2000) and 7-2003 (2003). Under the former and revised criteria, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher disability rating when functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2006); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the criteria in effect prior to September 26, 2003, the potentially applicable diagnostic codes for rating musculoskeletal cervical spine disabilities were 38 C.F.R. § 4.71a, DCs 5287, for ankylosis of the cervical spine, DC 5290, for limitation of motion of the cervical spine, and DC 5293, for intervertebral disc syndrome. Initially, the Board notes that there is no evidence of ankylosis of the cervical spine, so former DC 5287 is inapplicable. Under former DC 5290, a rating of 10 percent may be assigned for a slight limitation of motion; a rating of 20 percent may be assigned for a moderate limitation of motion, and a rating of 30 percent may be assigned for a severe limitation of motion. The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As a point of reference, the Board notes that for VA rating purposes normal range of motion of the cervical spine is flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees in each direction, and rotation to 80 degrees in each direction. See 38 C.F.R. § 4.71a, Plate V (2006). The evidence reflects that, prior to September 26, 2003, limitation of motion of the veteran's cervical spine was no more than slight. A June 2002 VA general examiner indicated that range of motion of the cervical spine was intact. An August 2003 Crossroads chiropractic clinic examiner indicated that range of motion of the cervical spine was abnormal, specifically, flexion was limited to 40/45 degrees, extension was limited to 50/55 degrees, right bending was limited to 10/45 degrees, left bending was limited to 25/45 degrees, right rotation was limited to 65/80 degrees, and left rotation was limited to 75/80 degrees; the diagnosis was mild to moderate degenerative joint disease of the cervical spine with narrowing of intervertebral spaces and foramina at various levels. The Board finds that these June 2002 and August 2003 range of motion figures, which were mostly at or near normal, indicate that the limitation of motion of the veteran's cervical spine prior to September 26, 2003, was no more than slight, warranting a 10 percent rating. The veteran has also manifested symptoms of cervical spine intervertebral disc syndrome (IVDS). Effective September 23, 2002, the criteria of DC 5293 was changed. Under the revised criteria, IVDS is evaluated either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under the revised criteria, a 20 percent rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest and treatment prescribed by a physician. Effective September 26, 2003, DC 5293 for rating IVDS was changed to DC 5243, which provides that ratings are now based on either the General Rating Formula for Diseases and Injuries of the Spine (as in effect on September 26, 2003), or on the basis of incapacitating episodes (the criteria for which remain unchanged from regulatory change effective September 23, 2002), whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, rating criteria pertinent to the cervical spine, is as follows. A rating of 10 percent is assigned for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees. A rating of 20 percent is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. A rating of 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine. A rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. Prior to September 23, 2002, a December 2001 cervical spine MRI revealed found a combination of broad-based disc protrusion and end plate posterior spur between C3 and C-4 with mild cord compression and diffuse desiccated discs from C2 to C7. The June 2002 VA examination report reflects that X-ray of the cervical spine showed no evidence of fracture, subluxation, or dislocation of the cervical spine, mild to moderate degenerative changes, with narrowing of the C3 through 7 intervertebral disc spaces and narrowing of the left C4-5 intervertebral foramen and right C3 through C6 intervertebral foramina. There was tenderness over the entire cervical spine. Thus, to the extent that there was IVDS prior to September 23, 2002, it was no more than mild, which is consistent with a 10 percent rating under former DC 5293. The Board notes that, since September 23, 2002, there is no evidence of incapacitating episodes, so the veteran's cervical spine IVDS cannot be rated on the basis of such episodes. Nor was there evidence of neurological abnormalities warranting a higher rating by combining chronic orthopedic and neurological manifestations. The August 2003 Crossroads chiropractic clinic examination report diagnosed cervical spine IVDS, cervical disc degeneration, cervical segmental dysfunction, and cervico-cranial syndrome. There was muscle spasm in the cervical musculature. Neurological examination was essentially normal. During the September 2005 VA examination, the veteran complained of neck pain of 9/10. On examination, forward flexion was to 45 degrees, extension was limited to 30 degrees, producing mild pain, and lateral flexion was to 45 degrees bilaterally. Repetition of this range of motion caused pain, weakness, fatigue, lack of endurance, and lack of coordination, but no decrease in the range of motion. Rotation was to 80 degrees to the left and 70 degrees to the right. The veteran's gait was steady, no limp was apparent, tandem walking was steady, deep tendon reflexes were + 1 to 2, and motor function was 5/5. The diagnosis was degenerative disc disease from C3 through C7 with mild degree of cord compression. Thus, the combined range of motion of 315 warrants a 10 percent rating under the general rating formula for combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees. A higher, 20 percent rating is not warranted under the General Rating Formula because, although there was muscle spasm in the cervical musculature, neither this muscle spasm nor any guarding resulted in abnormal gait or abnormal spinal contour. In addition, a higher rating is not warranted for the DJD (arthritis) of the cervical spine under DC 5003, which warrants at most a 10 percent rating for a single major joint (here, the cervical spine). Prior to September 26, 2003, DC 5290, the lumbar spine disability could be rated under DC 5289, applicable to ankylosis of the lumbar spine, DC 5292, applicable to limitation of motion of the lumbar spine, DC 5293, applicable to IVDS of the lumbar spine, or DC 5295, applicable to lumbosacral strain. There is no evidence of ankylosis of the lumbar spine, so DC 5289 is inapplicable. Under DC 5292 a rating of 10 percent is warranted for slight limitation of motion; a rating of 20 percent is warranted for a moderate limitation of motion, and a rating of 40 percent is warranted for a severe limitation of motion. As noted above, the terms "slight," "moderate" and "severe" are not defined in the rating schedule. Under DC 5295, a noncompensable rating is warranted for slight subjective symptoms only; a 10 percent rating is warranted for characteristic pain on motion; a 20 percent rating is warranted for muscle spasm on extreme forward bending, or loss of lateral spine motion, unilateral, in a standing position; and a 40 percent is warranted for severe strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility of forced motion. A February 2002 lumbar spine MRI revealed mild disc degeneration at L5-S1 with posterior hypertrophic facet changes and moderate bilateral neuroforaminal encroachment. On the June 2002 VA examination, range of motion of the lumbar spine was intact with guarding and pain throughout all maneuvers. X-ray of the lumbosacral spine showed no evidence of fracture, subluxation, or dislocation, with minimal degenerative changes of the lumbosacral spine. The diagnosis was minimal DJD of the lumbar spine. The August 2003 chiropractic examiner indicated that range of motion of the lumbar spine was within normal limits. Muscle spasm was present in the lumbar musculature, and the diagnosis was lumbar facet joint stenosis, lumbar segmental dysfunction, and lumbar myofascitis. Thus, prior to September 26, 2003, there is no evidence of limitation of motion of the lumbar spine, IVDS, or lumbosacral strain causing pain on motion warranting a compensable rating under DCs 5292, 5293, or 5295. Moreover, while there was muscle spasm in the lumbar musculature, there is no indication that there was muscle spasm on extreme forward bending or loss of lateral spine motion warranting a 20 percent rating under DC 5295. A 10 percent rating is therefore warranted under DC 5003 for the veteran's lumbar spine arthritis. Since September 26, 2003, the September 2005 VA examination report reflects that there was pain on palpation of the right side of the lumbar spine but no paravertebral muscle spasm noted. Forward flexion was greater than 90 degrees, with slight pain, extension was restricted to 15 degrees with pain, lateral flexion was to 40 degrees bilaterally with mild pain, rotation was to greater than 30 degrees bilaterally with mild pain. The diagnosis was mild disc degeneration at L5-S1, with posterior hypertrophic facet changes and moderate bilateral neuroforaminal encroachment. There was also mild neuroforaminal encroachment at L3-4 and L4-5. Thus, the combined range of motion of the lumbar spine of 175 degrees warranted a 10 percent rating under the General Rating Formula, as it was greater than 120 degrees but not greater than 235 degrees. A higher, 20 percent rating was not warranted because muscle spasm or guarding resulting in abnormal gait or spinal contour. In addition, a higher rating of 10 percent was not warranted for the DJD (arthritis) of the cervical spine under DC 5003, which warrants at most a 10 percent rating for a single major joint (here, the lumbar spine). Moreover, there was no evidence of IVDS warranting a higher rating under the criteria applicable to that disability. Based on the above, the Board finds that the veteran is entitled to separate 10 percent ratings for his cervical and lumbar spine disabilities. A higher rating is not warranted under the DeLuca factors. Although some of these factors, including pain, were present, they did not cause significant decrease in the overall range of motion or otherwise result in sufficient additional functional impairment to warrant ratings higher than those indicated above under the applicable criteria. 2. Psychiatric Disability As noted above, the veteran's mood disorder and other acquired psychiatric disabilities have been deemed due to his willful misconduct-specifically substance abuse-and, therefore, will not be considered in determining the veteran's entitlement to nonservice-connected VA pension benefits. However, the veteran has also been diagnosed with a personality disorder. Although congenital or developmental defects such as a personality disorder is not a disease or injury for purposes of VA disability compensation, 38 C.F.R. § 3.342(b)(1) (2006) provides that permanent total disability pension ratings are authorized are authorized for congenital, developmental, hereditary, or familial conditions, provided the other requirements for entitlement are met. In the August 2002 DRO decision, the RO rated the veteran's personality disorder 30 percent disabling under 38 C.F.R. § 4.130, DC 9499-9440, indicated a psychiatric disability not listed in the rating schedule, rated, as anxiety disorder, under the General Rating Formula. See 38 C.F.R. § 4.27. 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). See 38 C.F.R. § 4.130 (2006). 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 long - and short-term memory (e.g., retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing or maintaining effective work and social relationships). Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as school, work, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessive 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 to personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2006). Considering the pertinent evidence in light of the above- noted legal authority, the Board finds that the RO's 30 percent rating for personality disorder is appropriate. At the outset, the Board notes that, although the veteran's acquired psychiatric disorders, attributable to the veteran's willful misconduct, are not to be considered in the pension determination, as a practical matter, no physician has distinguished the symptoms and impairment attributable to those disorders from those attributable to the veteran's personality disorder. Hence, as a practical matter, the Board is, effectively, attributing all psychiatric symptomatology to the personality disorder in assessing the level of severity of that disability. Cf. Mittleider v. West, 11 Vet. App. 181 (1998) (emphasizing that if it is not medically possible to distinguish the effects of service- connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to the veteran's service-connected condition, pursuant to 38 U.S.C.A. § 3.102 (2006)). On September 2005 VA psychiatric examination, engagement was minimal, eye contact was fair, the veteran was lethargic, apathetic, and withdrawn, with minimal engagement and fair eye contact. Speech was soft and slow with average fluency. Speech content was underproductive and at times tangential, but generally coherent. Mood was dysphoric with somewhat blunted affect, and the veteran indicated he was depressed. Sleep was poor, there was no suicidal ideation. The veteran thought of hurting others but did not act on these thoughts. Thought processes were somewhat slowed and concrete, but generally logical and without evidence of psychosis. There were no hallucinations, delusions, dissassociative symptoms, or ritual or obsessive behaviors. The veteran stated that he rarely socialized, did not have any friends, and just read and watched television. Insight and judgment were poor. The examiner assigned a GAF score of 60, reflecting moderate difficulty in social, occupational, and school functioning, "primarily due to substance dependence and characterological problems." On September 2005 VA general examination, the veteran was alert and oriented and, after some initial irritation, became "quite pleasant." The above symptoms reflect that the veteran's disability picture more nearly approximates the criteria required for a 30 percent rating. The veteran has had the chronic sleep impairment and depressed mood symptomatology of the 30 percent criteria. His affect was "somewhat blunted" but not "flattened" as required for the next higher 50 percent rating, his speech was not circumstantial, circumlocutory, or stereotyped, he did not indicate that he had panic attacks, and there was no indication that his memory was impaired, all of which are symptoms in the 50 percent criteria. While there was some impairment of abstract thinking and difficulty in establishing effective relationships, the veteran's overall disability picture, as described above, was more similar to that described in the 30 percent rather than the 50 percent criteria. The Board also notes that the GAF score of 60 assigned in this appeal is consistent with assignment of a 30 percent rating for psychiatric impairment. Pursuant to the DSM-IV, GAF scores between 51 and 60 are reflective of only moderate symptoms (e.g., flat effect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning, e.g., few friends, conflicts with peers or co-workers), and the veteran's GAF of 60 is at the high end of the moderate category. Therefore, the evidence warrants assessment of the veteran's personality disorder as 30 percent disabling. 3. Headaches The veteran complained of severe headaches after his September 2001 motor vehicle accident, but a November 2001 MRI of the brain was essentially normal. On September 2005 VA examination, the veteran an aching pressure that began in the front of his head and went all the way to his back. He denied characteristics of a migraine headache, including photophobia, nausea, and vomiting. There was no motor weakness, no aura, the veteran did not have to seek a dark room, and did not take any medication for these headaches. He stated that he generally woke up and went to bed with a headache. There were no abnormalities on neurological examination. The diagnosis was of headaches, tension in nature, possibly secondary to whiplash from his September 2001 motor vehicle accident. Based on the above, the appropriate diagnostic code for rating the veteran's headaches appears to be 38 C.F.R. § 4.124a, DC 8045, which states that purely subjective complaints such as headaches recognized as symptoms of brain trauma are rated 10 percent under DC 9304, applicable to dementia due to brain trauma. Thus, the veteran is entitled to a rating of 10 percent or his headaches under DC 9034. He is not entitled to a rating higher than 10 percent because ratings in excess of 10 percent are not assignable under DC 9304 in the absence of a diagnosis of multi-infarct dementia, and the veteran does not have such a diagnosis. Nor is the veteran entitled to rating higher than 10 percent if rating, by analogy, under DC 8100, for migraine headaches. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2005). Under that diagnostic code, a 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. Headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. However, the evidence does not indicate and the veteran did not claim that he suffered from prostrating attacks. 4. Hepatitis C The veteran has been diagnosed with hepatitis C, which the RO assigned a noncompensable rating under 38 C.F.R. § 4.114, DC 7354. The criteria for evaluating hepatitis were changed, effective July 2, 2001, after the veteran filed his current claim. The change included the creation of Diagnostic Code 7354, which is specifically applicable to hepatitis C (or non-A, non-B hepatitis). Prior to this change, hepatitis C was rated as chronic liver disease without cirrhosis. However, under both the former and revised versions of DC 7345, nonsymptomatic hepatitis C is rated noncompensable. The veteran's hepatitis C has been nonsymptomatic since he filed his claim. For example, on the June 2002 VA examination, the veteran denied any complaints related to his hepatitis C, including jaundice, nausea, vomiting, stomachache or any other problem. A September 2003 private gastroenterology note indicates that the veteran denied nausea, vomiting, diarrhea, constipation, hematemesis, melena, shortness of breath, peripheral edema, and pruritus, although blood test results indicated that he still had hepatitis C. In addition, there were no such symptoms on September 2005 VA examination. Consequently, the Board finds that the noncompensable rating assigned for the veteran's hepatitis C is appropriate. D. Combined Rating The Board's consideration of each of the veteran's current disabilities, as noted above, indicates that he is entitled to a 30 percent rating for his personality disorder, and separate 10 percent ratings for his cervical and lumbar spine disabilities and his headaches. These ratings warrant a combined rating of 50 percent (see 38 C.F.R. § 4.25 (2006)), which does not satisfy the requirement a combined 100 percent schedular rating under the objective standard for a total rating for pension purposes. E. Subjective Standard As indicated above, a veteran may also establish permanent and total disability for pension purposes under the "subjective standard" 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. 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. Clearly, the veteran's disabilities do not meet the percentage standards set forth above; as there is no need for consideration of whether the veteran has a lifetime impairment precluding him from obtaining substantially gainful employment. The remaining question before the Board, however, is whether a permanent and total disability rating is warranted under provisions of 38 C.F.R. § 3.321(b)(2). Such a rating is not warranted here because the evidence reflects that the veteran is not unemployable by reason of his disabilities, age, or occupational background and other related factors. The veteran is now fifty years old, has indicated during the VA examinations that he received a GED diploma. While he has been unemployed and receiving SSA disability since 1992, the veteran's relatively young age and his educational status do not themselves indicate that he is unemployable. Moreover, while SSA has indicated he is unemployable, that determination, as noted above, is based primarily on his psychiatric disabilities resulting from willful misconduct, i.e., substance abuse. The recent VA examination findings support the conclusion that the veteran is not unemployable due to his age, education, or disabilities not the result of his willful misconduct. The September 2005 VA psychiatric examiner concluded that, in the absence of his substance abuse and characterological problems, the veteran's mood-related problems would not likely interfere with his overall functioning to any significant degree. The examiner added that the veteran appeared to be employable in terms of overall psychiatric impairment, and that the veteran's own statements made it clear that much of his employment difficulties were the direct result of his substance dependence. He was also noted to be capable of managing his own finances in his best interest. Similarly, the September 2005 VA general medical examiner concluded that, although the veteran had multiple joint complaints supported by MRI and radiographic findings, he was not physically disabled and his symptoms were not of sufficient severity to render him unemployable. In response to the Board's most recent remand, the physician who conducted the September 2005 VA general examination, after reviewing the claims file including the September 2005 VA psychiatric examination report, stated that it was still his opinion that the veteran's medical and psychiatric symptoms were not of sufficient severity to render him unemployable. He noted that this opinion was rendered excluding any impairment due to substance abuse and taking into account all of the veteran's disabilities. Thus, there is no indication that the veteran's age, occupational background, or current physical disabilities not due to his willful misconduct prevent him from obtaining employment. The veteran's disabilities also are not shown to require frequent periods of hospitalization, or otherwise render impractical the application of the regular schedular standards. In short, the veteran's disabilities are not shown so exceptional or unusual to invoke the procedures, pursuant to 38 C.F.R. § 3.321(b)(2), for assignment of a permanent and total rating for pension purposes on an extra- schedular basis. F. Conclusion As the criteria for a permanent and total disability rating, to include under the provisions of 38 C.F.R. § 3.321(b)(2), are not met, there is no basis for awarding VA pension benefits, and the veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A permanent and total disability rating for VA pension purposes, to include under the provisions of 38 C.F.R. § 3.321(b)(2), is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs