BVA9503550 DOCKET NO. 93-08 214 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a total disability evaluation for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1940 to June 1945. This appeal arose from a November 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The RO denied entitlement to a total disability rating for compensation on the basis of individual unemployability, and granted an increased (compensable) evaluation of 10 percent for bilateral defective hearing. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected disabilities are productive of severe impairment and have rendered him unable to work, thereby warranting entitlement to a total disability evaluation for compensation on the basis of individual unemployability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 a grant of entitlement to a total disability evaluation for compensation on the basis of individual unemployability. FINDING OF FACT The service-connected disabilities, when evaluated in association with the veteran's educational attainment and occupational experience, are not shown to have rendered him unable to perform substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability evaluation for compensation on the basis of individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that his service-connected disabilities are productive of sufficient overall impairment as to preclude his pursuit of any substantially gainful employment. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the claimant is required in order to comply with 38 U.S.C.A. § 5107(a). A review of the service medical records discloses that in July 1944, as a result of enemy action, the veteran sustained multiple injuries as the result of an incoming shell. He was struck in the right arm, face, and legs with shell fragments. The appellant walked about a mile to an aid station where his arm was splinted and his wounds dressed. He was medically evacuated through a chain of hospitals receiving treatment for his wounds and was eventually removed from the war zone and returned to the continental United States. On examination a plaster cast was removed from the right forearm and clinical inspection of wounds showed that they were healed. Motion was present in the right forearm. There were healed scars on both legs. There was atrophy of the muscles of the right forearm, partial radial paralysis on the right, hyperesthesia of the superficial branch of the radial nerve, and limitation of motion of the wrist and elbow due to immobilization. X-rays taken in early October 1944 disclosed a markedly comminuted fracture of the midshaft of the right radius with loss of bone substance, displacement of several small fragments into the soft tissues and lateralward bowing at the fracture site. There were several small metallic foreign bodies scattered throughout the soft tissues of the left forearm. X-rays dated in February 1945 showed maintenance of the position of the fractured fragments and the right radial bone graft. Four screws were in place. There was further slight callus formation. The luxation of the lower end of the ulna was unchanged. The veteran received physiotherapy and a bone graft was done to the radius in early December 1944. He had all immobilization removed. The radial nerve returned almost completely. His condition was considered good. The hospital discharge diagnoses were complete, comminuted, compound fracture of the middle third of the right radius with bone defect incurred in July 1944 by enemy shell fragment; impetigo contagiosa, maculo-papular vesicular lesions of the face, chronic, moderate, of undetermined cause; defective hearing, left, moderate, caused by shell explosion; and incomplete paralysis of the right radial nerve. Service connection has been granted for residuals of a shell fragment wound of the right arm(major) with muscle damage(Groups VII & VIII) with radial nerve involvement, evaluated as 40 percent disabling; traumatic cataract of the left eye, evaluated as 30 percent disabling; left knee scars, evaluated as 10 percent disabling; right foot scars, evaluated as 10 percent disabling; defective hearing, evaluated as 10 percent disabling; donor site scars of the right tibia, evaluated noncompensable; and residuals of mandible displacement, evaluated noncompensable. The combined schedular evaluation is 70 percent (Bilateral factor considered). In education and employment information statements on file the veteran has reported having completed eight years of grade school, having terminated employment in 1980, and having occupational experience as a carpenter and plumber. On file is a letter dated in July 1990 from Eugene Rames, M.D. Dr. Rames advised that he had seen the veteran in July 1990 for a complete physical examination. He noted the veteran reported a history of asthma which he treated with an inhaler, and apparently had been considered to have chronic obstructive pulmonary disease in the past. The appellant was taking one aspirin per day as directed by a previous physician for anti- platelet effect. As far as gastrointestinal symptoms went, he had a hiatus hernia with gaseousness for which he was taking Mylanta when needed. Previously he had been employed as a carpenter and trick driver. Dr. Rames noted that on physical examination the veteran had an obvious hearing defect. There was a cataract in the right eye. The left eye was normal with implant in place. The appellant was wearing a hearing aide. A clinical inspection of the extremities revealed scars on the right forearm with muscle weakness in the right forearm compared to the left. He also displayed scars on the right lower extremity related to removal of bone graft from the right tibia. Neurologically he was intact. The impression was that he had residuals of wounds with nerve damage in the right arm. Dr. Rames noted that the veteran had chronic obstructive pulmonary disease by history, cataract in the right eye, multiple scars secondary to bullet and shrapnel wounds involving the left periorbital area, as well as the right arm and both lower extremities below the knees and extending into the feet. The veteran had recently had a workup at the VA hospital, including routine laboratory studies and electrocardiogram, and was told that these were fairly satisfactory. He was told there was no reason why he should not go to work, but it was the feeling of Dr. Rames that this sort of advice was futile in as much as there was absolutely no work available for a 72 year old man with the medical problems the veteran had. In a July 1991 letter S. G. Kassicieh, M.D., advised that he had examined the veteran. The examination diagnoses were status post cataract removal surgery with lens implant, with visual acuity best corrected to 20/40 bilaterally; hearing deficit not correctible completely by aide; right radial nerve injury and paralysis; legs with multiple fragment wounds and chronic changes; and lungs with emphysematous changes confirmed. Dr. Kassicieh noted that all the above findings, together with the veteran's age, led to the conclusion that the veteran was permanently and totally disabled. The appellant underwent an audiology examination by VA in September 1991. Right ear pure tone thresholds were 50, 45, 70, and 95 decibels with an average of 65 decibels at 1000, 2000, 3000, and 4000 hertz, with a speech recognition ability of 72 percent. Left pure tone thresholds were 20, 30, 50, and 65 decibels with an average of 41 decibels at 1000, 2000, 3000, and 4000 hertz, with a speech recognition of 82 percent. VA conducted an orthopedic examination of the claimant in September 1991. It was noted that the appellant had sustained a wound of his right arm in France in 1944. A bone graft was performed in 1944. The arm had continued to be painful and the pain was said to be increasing. The examiner noted that he had previously examined the veteran in 1985. When he asked the veteran to compare his symptoms then and currently, the appellant responded that he had pain to some extent every day and that the pain had become increasingly severe over the last few years, particularly in the forearm over the site of the bone graft and scars. The VA examiner noted that the veteran's hearing had worsened over the past few years and currently he had a hearing aid. He had multiple disabilities and had been a patient in the General Medical Clinic of the local VA Medical Center with chronic obstructive pulmonary disease, paroxysmal atrial fibrillation, hypercholesterolemia, and distal neuropathy involving the feet. He had a return appointment in January. The examiner noted that the veteran was 73. He had last worked as a carpenter in 1962. His current medications were aspirin, Maxzide, Theophylline, Ventolin. Atrovent, and flatulence pills obtained from a private physician. Pertinent clinical findings obtained on examination showed the veteran was hard of hearing in normal conversation. A clinical inspection of the right arm disclosed that residual scarring was atrophic and nontender. The appellant demonstrated a full range of motion of the right elbow, but pronation and supination were limited. Right elbow pronation was 0 degrees to 60 degrees. Supination was 0 degrees to 65 degrees. The claimant had limited motor strength in flexion and extension of the right elbow. There was tenderness in the right forearm, particularly around the wrists and along the site where the bone graft had been performed. X-rays of the right upper extremity disclosed multiple metallic foreign bodies. A comparison was made with studies from 1986. Four screws were present in the midshaft of the radius and were not appreciably changed in position There appeared to be increased lucency between the screws when compared to the 1986 examination and the possibility of an infectious process could not be totally ruled out. It was noted that other etiologies of bone resorption should be considered. Positive ulnar variance was again seen with the ulna displaced distally relative to the radius which was presumed to be somewhat foreshortened. Some calcifications in the soft tissues were present. There was some irregularity of the distal ulna which did not appear to have progressed significantly since 1977. The veteran provided testimony at an RO hearing held in August 1992. He elaborated on the reasons why he felt that his service- connected disabilities had rendered him unable to work. He testified that prior to his employment as a carpenter, he had driven trucks. He had to discontinue driving trucks because of a back injury. It is well at this time to assess the severity of the appellant's service-connected disabilities individually to ensure that each is properly rated for purposes of ascertaining overall functional impairment pursuant to the claim for individual unemployability. In this regard the Board observes that residuals of a shell fragment wound of the right arm with muscle damage and radial nerve impairment is rated as 40 percent disabling under diagnostic codes 5307-8515 of the VA Schedule for Rating Disabilities. Diagnostic code 8515 is applicable due to radial nerve impairment; however, the veteran's main impairment is orthopedic in nature and considered severe, thereby warranting the current 40 percent evaluation. The 40 percent evaluation contemplates severe impairment of the muscles arising from the internal condyle of the major humerus. This is the highest evaluation listed for this diagnostic code. The September 1991 VA examination disclosed no evidence of more than severe impairment of the right upper extremity muscles. Symptomatic pain experienced by the appellant is considered in the 40 percent evaluation, thereby precluding a grant of a higher evaluation under the criteria of 38 C.F.R. § 4.40 which apply to functional disablement due to pain. No question has been presented as to which of two or more evaluations would more properly classify the severity of the right upper extremity disability. 38 C.F.R. § 4.7. The shell fragment wound residuals of the right upper extremity have not rendered the veteran's disability picture unusual or exceptional in nature, and are not shown to have markedly interfered with employment. The right upper extremity disability has not required frequent inpatient care as to render impractical the application of regular schedular standards thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board finds that the shell fragment wound residuals of the right upper extremity are properly rated. The veteran is rated as 30 percent disabled for his traumatic cataract of the left eye under diagnostic code 6029 for unilateral aphakia. He has since had an implant in his left eye, and his corrected vision bilaterally is 20/40. Not only did the appellant testify as to his current bilateral visual acuity during the RO hearing held in July 1992, the claims file contains correspondence from a private physician noting bilateral visual acuity of 20/40. Application of the criteria of the VA Schedule for Rating Disabilities discloses that corrected bilateral visual acuity of 20/40 warrants a noncompensable evaluation under diagnostic code 6079. Accordingly, there exists no basis upon which to predicate an increased evaluation for traumatic cataract of the left eye, currently evaluated as 30 percent disabling. The veteran's bilateral defective hearing is evaluated as 10 percent disabling under diagnostic code 6101. As noted earlier, the September 1991 VA audiometric examination disclosed an average pure tone threshold of 65 decibels with a speech recognition of 72 percent in the right ear and a pure tone threshold of 41 decibels with a speech recognition of 82 percent in the left ear. These values equate to literal designations of III and V on Table VI of 38 C.F.R. § 4.85, for a 10 percent evaluation under diagnostic code 6101 on Table VII. No higher evaluation is warranted for bilateral defective hearing in the absence of clinically demonstrated higher decibel pure tone thresholds and lower speech recognition. The appellant's is rated as 10 percent disabled respectively for scars of the left knee and right foot under diagnostic code 7804, for tenderness and pain on objective demonstration. The September 1991 VA orthopedic examination disclosed of evidence of a worsening in the scarring of the left knee and right foot. The Board finds no medical basis to warrant grants of increased evaluations with consideration of the criteria under 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40. The same may be said for the appellant's remaining disabilities which are all evaluated noncompensable; namely; donor site scars of the right tibia, and residuals of displacement of the right mandible. Again, the September 1991 VA examination disclosed no evidence of pathological development of these disorders, nor has the veteran in statements on file or at the RO hearing alleged any increase in their disabling manifestations. The donor site scar on the right tibia is evaluated noncompensable under diagnostic code 7805, for limitation of function of the part affected. Scarring on the right tibia has not been shown to be poorly nourished with repeated ulceration or tender and painful on objective demonstration thereby precluding a grant of an increased (compensable) evaluation under diagnostic code 7803 or 7804 respectively. The Board has considered the criteria under 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40. As to the residuals of displacement of the mandible, the veteran is evaluated noncompensable under diagnostic code 9904 for slight displacement of the mandible. The most recent examinations by VA and private medical evidence of record has disclosed no evidence of moderate displacement of the mandible which would warrant a grant of an increased (compensable) evaluation, with consideration of the criteria under 38 C.F.R. §§ 3.321(b)(1), 4.7. As noted earlier, the veteran has eight years of grade school. He has occupational experience as a truck driver, plumber, and carpenter. While his service-connected disabilities in combination may somewhat impact negatively on his ability to perform some kinds of extremely physically demanding employment, the preponderance of the evidence is against any finding that they realistically preclude all forms of substantially gainful employment. The Board is mindful of the correspondence from a private physician of record noting that the veteran was permanently and totally disabled. However, this statement was predicated not only on service-connected, but nonservice- connected disability as well. The private physician took into consideration the veteran's nonservice-connected emphysema, as well as the veteran's age. Nonservice-connected disability and age are not factors to be considered in determining unemployability for VA compensation purposes. Moreover, the Board notes that the VA examiner, in September 1991, took cognizance of additional nonservice-connected disabilities reported as paroxysmal atrial fibrillation, hypercholesterolemia, distal neuropathy involving the feet, as well as chronic obstructive pulmonary disease. The examiner further noted that the veteran had been receiving treatment for his nonservice-connected disabilities and would soon be receiving further treatment. No treatment for service-connected disabilities has been alleged or shown. The Board finds that the appellant's service-connected disabilities have remained static through the years with no evidence of increase in severity with the exception of bilateral defective hearing for which an increased evaluation was recently granted by the RO. The Board finds that service-connected disabilities have not rendered the veteran unemployable for VA compensation purposes. Accordingly, a grant of a total disability evaluation for compensation purposes on the basis of individual unemployability is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). ORDER Entitlement to a total disability evaluation for compensation on the basis of individual unemployability is denied. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (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.