BVA9504045 DOCKET NO. 91-43 082 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total rating based on individual unemployability. REPRESENTATION Appellant represented by: Richard J. Mahlin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION The veteran had active service from July 1942 until May 1944. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of November 1990, from the Lincoln, Nebraska, regional office (RO) which denied a total rating based on individual unemployability. The designation of representation on the title page reflects the receipt on January 20, 1995, of the Power of Attorney issued to Richard J. Mahlin, Attorney, and which revoked the prior Power of Attorney. Although the veteran, through his previous representative, requested a remand for a social and industrial survey to be completed, the Board believes that the file contains sufficient evidence to properly evaluate the claim. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in denying his claim for a total rating based on individual unemployability as the result of his bilateral varicose vein disorder. He asserts that his legs are frequently swollen, and that even when elevated, the swelling can take a long time to recede. He also notes that he has constant aching in his legs, and that he suffers from painful cramps, especially at night. Due to his varicose vein disorder, the veteran indicates that he must wear special stockings for support, and that he is, nonetheless, unable to stand for prolonged periods of time. The veteran argues that he retired from full time gainful employment in October 1984 due to his varicose vein disorder, and that he has been unemployed since that time due to the impairment from the varicose veins, as well as the need for frequent outpatient care and hospitalizations for treatment. 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 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 a total evaluation based on individual unemployability due to a service-connected disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the agency of original jurisdiction. 2. The appellant has completed two years of high school. He has been employed in the past as a custodian and has not been gainfully employed since 1984. 3. He is service-connected for bilateral varicose veins, with stasis dermatitis and post phlebitic syndrome, history of; stasis ulcer, recurrent, lateral left ankle, and probable deep vein involvement, evaluated as 60 percent disabling. 4. The appellant meets the schedular requirement for a total rating due to unemployability. 5. The appellant is precluded by a service connected disability from obtaining and sustaining substantially gainful employment. CONCLUSION OF LAW A total rating for compensation purposes as the result of unemployability caused by service-connected disability is warranted. 38 U.S.C.A.. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.16(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, he has not indicated that any probative evidence not already associated with the claims folder is available; therefore the duty to assist him has been satisfied. Id. In July 1990, a claim for increased compensation based on unemployability was received from the veteran. On the application form the veteran indicated that he had last worked full time in October 1984; that he had left his job because of his service-connected varicose veins disorder and that he had not tried to obtain employment since then. He had completed two years of high school and worked as a custodian. By a rating action in November 1990, the RO denied a total rating based on individual unemployability and so notified the veteran. The veteran disagreed with this decision and initiated this appeal. The veteran is service-connected for bilateral varicose veins, with history of stasis dermatitis and post phlebitic syndrome; stasis ulcer, recurrent, lateral left ankle, and probable deep vein involvement, evaluated as 60 percent disabling from April 1990. The record indicates that appellant has additional non- service-connected disabilities including bilateral pes planus, scar on the left shoulder, epilepsy and hemorrhoids. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (1994). 38 C.F.R. § 4.16(a) further reads, "...the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable." Further, 38 C.F.R. § 4.16(b) states, "It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." "In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's non-service-connected disabilities nor his advancing age may be considered." Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). The record indicates that the veteran had a history of varicosities of both lower extremities beginning in the 1940's and has had recurrent ulcers of both ankles since the 1950's. In October 1983, an ulcer had begun on the outer aspect of the left ankle which did not respond to treatment at home and he was hospitalized for concentrated therapy to the ulcer. After approximately three months of hospitalization he was released and it was estimated that he would be unable to resume full time work for 4-6 weeks. Progress notes indicated that the veteran was unable to return to work due to the slow healing ulcer on the left ankle and edema of the right leg and it was not until July 20, 1984, that the doctor indicated that the veteran could return to work. He still had the chronic venous insufficiency but this was reasonably well controlled by TED hose. In August 1984, a Veterans Administration (now Department of Veterans Affairs) (VA) examiner noted recent development of a sore spot on the left posterior calf area which was dry, scabbed and not inflamed. In November 1984, the veteran completed an Employee's Disability Benefits Application. He noted that he worked at a state college as a custodian cleaning restrooms, mopping and sweeping classrooms. He indicated that symptoms were first noticed in October 1983, and that he had been unable to work because of the disability since November 8, 1983. He returned to work on a part time basis in July 1984 and on a full time basis in August 1984. In the block regarding the nature of the illness, he listed light stroke, high blood pressure, severe varicose veins and ulcers. He indicated that he had been treated in November 1983 at the VA Medical Center in Grand Island, Nebraska, and that he had the same or similar condition in the past also treated at the VA Medical Center in Grand Island. In the disability form completed for the insurance company in November 1984, the veteran listed his present, principal complaints as aching and pain in both legs, itching and burning, and that he could not stand on his legs very long. A private physician, R.A. Hranac, M.D., completed the disability evaluation form for the insurance company. Noted were diagnoses of occipital neuralgia, severe venous insufficiency of the lower extremities, and essential arterial hypertension. He indicated that the veteran's condition had retrogressed. It was noted that the veteran had been hospitalized in October 1984. The physician evaluated the veteran's condition with regard to functional capacity as Class 3, marked limitation; and physical impairments as Class 4--moderate limitation of functional capacity; capable of clerical/administrative (sedentary, as defined in Federal Dictionary of Occupational Titles). Dr. Hranac indicated that the veteran was totally disabled as to his own job and to any other work. No fundamental or marked change was expected in the future as to the veteran's job or to other work. The veteran was considered not to be a suitable candidate for occupational rehabilitation for his job or for any other work. In 1988, Dr. Hranac completed a supplemental statement and noted that the veteran had occipital neuralgia, severe venous insufficiency of the lower extremities, and essential arterial hypertension. The veteran's blood pressure was 128/76. His physical impairment was checked as Class 4, moderate limitation of functional capacity, capable of sedentary activity. The prognosis was that the veteran was totally disabled for his job or any other work, and not a suitable candidate for further rehabilitation services for his job or any other work. A report from Dr. Hranac in June 1989 noted the veteran seemed to be having more problems with his legs. He continued to be bothered by varicose ulcerations on the left side in particular. In addition, the veteran described one-half block claudication. Outpatient treatment notes from the VA Medical Center indicate that the veteran had a varicose ulcer on the inner left ankle in June 1989 which continued to need treatment until the end of the year. In February 1990, after conservative management for an ulcer on the lateral aspect of his left ankle failed, he was hospitalized for treatment of a purulent ulcer of the left ankle, and received care for treatment of varicose veins of both legs. A skin graft to the ulcer was performed. At the time of discharge, he was advised to avoid long periods of standing or sitting with the legs in the dependent position. He was further advised to elevate the leg as much as he could. A VA examination in April 1990 showed chronic stasis dermatitis of both lower legs. The right lower extremity showed nests of tortuous varicosities on the postero lateral and lateral thigh and proximal anterior lower leg. There was palpable dilatation of greater saphenous along the medial lower leg. The left lower extremity showed an ulcer over the lateral aspect of the ankle which was 18 mm by 6 mm with some healed skin graft posterior to that area. The left lower extremity also showed palpable, localized dilatation and tortuosity of the greater saphenous vein of the lower leg. The examiner indicated that some of the dilated veins, or nests in both lower extremities, could possibly be 2 cm in diameter. There was no edema of either leg, although an unna boot was removed from the left for the examination. Testing of the legs with tourniquet applied below the knees after elevation showed fairly rapid refill of varicosities on dependency. There were scars on both lower extremities of past greater saphenous vein strippings. The examiner diagnosed bilateral, residual varicosities with probable deep communicator involvement and a stasis ulcer, recurrent after graft, on the lateral left ankle. On August 6, 1990, he was seen at a private hospital for left leg pain and drainage through his dressing for the skin graft. He was unaware of any trauma to the leg. The removal of the dressing revealed two breaks in the skin, swelling and erythema of the left lower leg and obvious stasis dermatitis. His physician recommended hospitalization and the veteran sought admittance at the VA Medical Center for treatment of an infected left lower leg. He had complaints of swelling of the left lower leg, painful in the last twenty-four hours. He also had considerable redness, injection and warmth involving the left tibial area for recent abrasions to this area overlying the redness and swelling. The peripheral pulses were unable to be palpated. A VA examination in October 1990 had findings of bilateral stasis dermatitis and a 1 cm stasis ulcer on the left lateral malleolus. Peripheral pulses were decreased by 50 percent. At discharge, the veteran was instructed to be careful regarding bumping his legs and to wear Jobst hose when available. He was able to be up and walk short distances. The veteran was afforded a personal hearing in March 1991. He gave an employment history of working as a custodian for over 30 years and having a tenth grade education. He alleges that he retired before a normal retirement age because of his service- connected varicose vein problem. He claims that this disability caused a very severe interference with his employment and his ability to maintain employment. He referred to receiving extensive follow up treatment after the skin graft for reoccurrence of infection and breaking down of his skin. He indicated that the skin graft had failed. The veteran testified that he cannot stand for any great length of time and must sit down and elevate his legs. He described that his legs will often swell and at night in bed he often has leg cramps. The legs are subject to recurrent ulcers and he is careful not to hit them. He testified that while working as a custodian, he never was in the position of being in the management side and doing supervisory work. He testified that since he retired, the skin problems on his legs had become worse, and his legs swell more. He now wears stockings which provide more support than the previous type used. He indicated that after the skin graft in August 1990, the area became infected and had an open sore on it. He was treated two or three times a week, and eventually once a week. The skin graft disappeared. He estimated that he usually sits in a recliner with his feet elevated. The amount of time he is able to sit with his feet elevated varies from fifteen minutes to one hour. The amount of time decreases if he sits in a regular chair as he legs "get to aching." He feels uncomfortable and has to straighten his legs and move around. The amount of time he can stand varies as well, before he experiences pain and swelling. He also stated that climbing stairs makes his legs tired. He further testified that it was the disability with his legs that was the primary reason he retired at age 61. In September 1992, he was hospitalized for ascending cellulitis. He had been closely followed for an ulcer in the left lateral malleolus for a long period of time in the out-patient department. He had developed increasing redness around the ulcer which has ascended up the leg over a period of three to four days. The physical examination revealed ulcerations of the left lateral malleolus with areas of cellulitis ascending midway up the left lower leg. The area was tender to palpation. Minimal discharge from the ulcer was noted. The ulcer had minimal discharge throughout the hospitalization. The cellulitis subsided steadily and had completely dissipated by the time of discharge. After discharge, he was to be seen in the Ulcer Clinic and Ambulatory Care. The veteran was afforded a VA medical examination in September 1992. He gave a history of increasing problems with claudication, of both lower extremities, and being only able to ambulate 1/2 to 3/4 of a block before precipitating cramps. He also had a problem with nocturnal leg cramps. Swelling is a daily problem and elevation of his legs lessens the swelling. His subjective complaints were of daily pain and intolerance to cold in both lower extremities. He had difficulty with nightly episodes of leg pain, and daily episodes of claudication when required to do any significant amount of ambulation. Findings revealed: Examination today revealed both lower extremities to be free of hair growth at approximately 2/3 the distance down both lower legs. There is frank temperature change with associated hyperpigmentary coloring associated with peripheral vascular insufficiency. I am not able to appreciate femoral, popliteal, or posterior tibial arterial pulsations. There is a faint pulsation appreciated in the right dorsalis pedis. The left, I am not able to appreciate. There are significant varicose veins of both lower extremities, more prevalent on the right lower leg than the left. These are prominently in the anterior tibial region and do not appear to be shown clearly on photographs. There is a stasis ulcer over the lateral malleolus of the left ankle that is dressed today. It measures approximately 4 cm. in length, 3 cm. in width with central eschar formation. No evidence of infection. There is marked differentiation of warmth in the lower extremities and feet. The examiner noted that the only palpable pulse appreciated in the lower extremities was a very faint dorsalis pedis pulse of the right foot. There was hyperpigmentation , brown in color, at approximately superior ankle region down to and including both feet. The skin temperature was very cold to touch in region of ankles and feet bilaterally, more appreciable on the right than the left. Paresthesia was indicated in both feet and ankle regions. An arterial Doppler of the lower extremities revealed an abnormal index for each ankle arm index. The index for the right leg was .54 and the index for the left leg was .71 with a normal value considered to be 1. The diagnosis was: "Severe arterial and venous insufficiency, both lower extremities with recurrent stasis ulcers, left ankle requiring skin graft for repair." In September 1994 the veteran had a non healing ulcer on the lateral aspect of the left foot. He was hospitalized and treated for an infected staphylococcus venous ulcer. He was treated by IV antibiotic for 14 days and his condition improved. At discharge, the doctor noted "[h]e is not employable." In this case, the veteran's only service-connected disorder, bilateral varicose veins, with stasis dermatitis and post phlebitic syndrome, history of; stasis ulcer, recurrent, lateral left ankle, and probable deep vein involvement, is currently evaluated as 60 percent disabling, which is the maximum rating allowable, pursuant to the rating criteria set forth in 38 C.F.R. § 4.104, Diagnostic Code 7120 (1994). We have considered evaluating the veteran's disability under Diagnostic Code 7116 for intermittent claudication, however, the veteran's disorder does not produce total incapacity or require house or bed confinement, to warrant a rating higher than 60 percent. For veterans meeting the criteria of 38 C.F.R. § 4.16(a) (1994), if the veteran has nonservice-connected disabilities that render him unemployable, as well as a service-connected disability that does, and he has not worked for a long time, he may still be granted a total rating for compensation purposes based on unemployability as the result of the service-connected disability. The task of the Board is to decide if the service- connected disability is sufficiently incapacitating as to render him unemployable. See Pratt v. Derwinski, 3 Vet.App. 269 (1992). We conclude that a total rating for compensation purposes based on individual unemployability is appropriate. The veteran meets the schedular requirement for a total rating due to unemployability. He has a severe disability and a long history of associated problems. He suffers from recurrent ulcers which are painful and take a long time to heal. Regular medical treatment is necessary and at times he has been hospitalized for concentrated therapy of an ulcer. He is unable to sit or stand for long periods of time, and is to keep his legs elevated most of the time. He has also indicated that he has difficulty walking. We find that he is not capable of performing the physical acts required by employment. In addition, at discharge from a period of hospitalization for treatment of an infected staphylococcus venous ulcer in September 1994, the doctor indicated that the veteran was unemployable. We conclude that his service-connected disorder is shown to be of such severity as to render him unable to secure or follow a substantially gainful occupation. Accordingly, a total rating for compensation purposes based on individual unemployability due to service connected disability is warranted. ORDER A total disability rating for compensation on the basis of individual unemployability is granted subject to regulatory criteria applicable to payment of monetary awards. BETTINA S. CALLAWAY 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.