Citation Nr: 0000608 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 99-13 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from August 1973 to November 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran is service-connected for arthralgia of the left knee with genu recurvatum, rated as 30 percent disabling; left knee disability due to arthritis and painful motion, rated as 10 percent disabling; and arthralgia of the right knee with genu recurvatum, rated as 10 percent disabling; his combined rating is 50 percent. 2. The veteran's service-connected disabilities alone do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The veteran is not individually unemployable by reason of his service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds the veteran's claim to be well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds find that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). In a recent August 1999 final decision, the Board denied entitlement to an increased rating in excess of 30 percent for arthralgia of the left knee with genu recurvatum; denied an increased rating in excess of 10 percent for arthralgia of the right knee with genu recurvatum; and granted service connection for left knee disability due to arthritis and painful motion which was rated as 10 percent disabling. The veteran has no other service-connected disabilities. His combined rating is 50 percent. A review of the record shows that the veteran was born in May 1955 and earned a high school education. He served in the military from August 1973 to November 1975. Following his discharge from service, the veteran was initially employed as a maintenance worker. Thereafter, in 1989, the veteran participated in vocational training in watch making and repair. In 1990, he was employed in that field. According to a March 1996 VA report and as supported in clinical records, the veteran was employed in 1993 and injured his left hand/wrist on the job when a tile lacerated the tendons and ligaments in his left hand. The veteran underwent surgery, but the injury resulted in some clawing formation of the left hand. He thereafter filed a Workmen's Compensation claim which was settled. The veteran related that his hand/wrist injury prevented employment in the watch making and repair field. His physician indicated that there was functional impairment of the left hand/wrist. Thereafter, in 1996, the veteran underwent two surgical procedures on his left knee. The veteran also reported that his bilateral knee disabilities prevented him from being able to work. In addition, he began receiving regular psychiatric care for his psychiatric disability to include schizophrenia and depression. The veteran reported to the examiner that he was depressed over the recent death of his newborn daughter. In addition, he repeatedly expressed hopelessness over his unemployed state and indicated that he looked forward to working in the future. The veteran was also subsequently diagnosed as having diabetes mellitus. In September 1997, the veteran was awarded disability benefits by the Social Security Administration. In this determination, it was indicated that the veteran was disabled due to his wrist/hand disability, his knee disabilities, and due to psychiatric impairment. In a subsequent medical statement prepared by a VA examiner for the apparent purpose of excusing the veteran from jury duty, the examiner indicated that the veteran suffered from severe depressive episodes which impaired his concentration, judgment, and ability to interpersonally relate to others. The RO subsequently obtained the veteran's recent VA medical records which showed that the veteran continued to be treated by the VA for psychiatric impairment, diabetes mellitus, and orthopedic impairment. The veteran's representative requested that the veteran be afforded a VA examination and that a medical opinion be obtained in order to evaluate if the veteran's service- connected disabilities prevented employment. In June 1998, the veteran was afforded a VA joints examination. At that time, the examiner indicated that the veteran was markedly limited in his ability to perform prolonged periods of weight bearing as well as activities such as squatting or ascending or descending stairs due to his service-connected knee disabilities, but the examiner further indicated that the veteran was only restricted to sedentary employment. Thus, the examiner only ruled out non-sedentary employment. Total disability ratings for compensation purposes may be assigned when the schedular rating for service-connected disabilities is less than 100 percent, when it is found that those disabilities are sufficient to produce unemployability without regard to advancing age. If unemployability is the result of a single service-connected disability, that disability must be rated at 60 percent or more. If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (1999). In this case, the veteran does not meet the criteria for a total rating for compensation purposes under 38 C.F.R. § 4.16(a) (1999). However, the Board must also consider 38 C.F.R. § 4.16(b) and 3.321(b)(1), permitting such a rating on an extraschedular basis. In determining whether the veteran is entitled to a total disability rating based on individual unemployability, neither nonservice-connected disability nor age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places his case in a different category than other veterans with equal rating of disability. Furthermore, the question is whether the veteran is capable of performing physical and mental acts required by employment, not whether the veteran can find employment. As noted above, the veteran's bilateral knee disabilities are the only disabilities which can be evaluated for unemployability purposes. The Board notes that the veteran lacerated his left hand/wrist. According to the veteran and the medical records, this disability prevents him from being employed as a watch maker/watch repairman. In addition, the veteran is treated on a regular basis for psychiatric impairment. It was his physician's opinion that his psychiatric impairment interfered with his ability to serve as a juror due to severe depressive episodes which impaired his concentration, judgment, and ability to interpersonally relate to others. As such, it is clear that such symptomatology would also interfere with employment requiring concentration, judgment, and good interpersonal skills. There is no question that the veteran's service-connected knee disabilities alone are symptomatic and productive of some industrial impairment; however, the evidence noted above indicates that the veteran's difficulty in industrial functioning is not solely related to his service-connected knee disabilities, but also due to his left wrist/hand and psychiatric disabilities. The Board points out that service connection has not been established for disabilities other than the knee disabilities. As such, the effect that the veteran's wrist/hand and psychiatric disabilities as well as any other disabilities have on his employability is not for consideration in this case. 38 C.F.R. § 4.16 (1999). As noted above, the VA examiner who recently examined the veteran essentially indicated that the veteran was capable of sedentary employment. The weight of the evidence shows that the veteran's service-connected disabilities alone do not prevent him from performing the physical and mental acts required for all types of gainful employment. The Board recognizes that the veteran has been found to be disabled by the Social Security Administration. While such a decision with regard to unemployability is "pertinent" to a determination of veteran's ability to engage in substantially gainful employment for purposes of VA adjudication, it is not controlling. Martin v. Brown, 4 Vet. App. 136, 140 (1993). In any event, it is clear from a review of the claims folder that the veteran's receipt of Social Security benefits is due to all of his disabilities, noted above, and not just his service-connected knee disabilities. While the service-connected knee disabilities present some industrial impairment, as reflected by the combined 50 percent compensation rating, there are no circumstances to place the appellant's case in a different position than similarly rated veterans. Van Hoose. Accordingly, a total disability rating for compensation based on individual unemployability is not warranted. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991). Although the veteran's representative requested a Social and Industrial Survey to measure the veteran's abilities to function in a social and industrial setting, the Board finds that the documentary and medical record as reviewed above adequately demonstrates the veteran's social and industrial abilities. ORDER Entitlement to a total disability rating for compensation purposes based on individual unemployability is denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals