BVA9500717 DOCKET NO. 90-51 157 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a prostate disorder secondary to a service-connected disability. 2. Entitlement to an increased rating for residuals of a cerebral vascular accident (stroke), currently evaluated as 10 percent disabling. 3. Entitlement to a total compensation rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from December 1942 to July 1944. This matter originally comes to the Board of Veterans' Appeals (Board) on appeal, in part, from a June 1989 decision of the Department of Veterans Affairs (VA), Seattle, Washington, Regional Office (RO), which denied a rating in excess of 60 percent for postoperative bilateral hydronephrosis with a healed sinus tract on the left, and denied a total disability rating based on unemployability. The latter issue is encompassed by his December 1989 notice of disagreement, as clarified in his June 1990 appeal. The veteran also appealed a March 1990 RO decision denying entitlement to secondary service connection for a prostate disorder and ureter-bladder neck stricture. He testified at a hearing conducted at the RO in September 1990. The Board remanded the case in May 1991 for further development of the evidence. An RO decision in September 1991 granted secondary service connection for ureteral stenosis with bladder obstruction, coronary artery disease, and hypertension. The veteran's service-connected renal-cardiovascular disease was thus reclassified as follows: Hydronephrosis, bilateral, postoperative, with healed draining sinus tract; polycystic calculi; pyelitis; ureteral stenosis; bladder obstruction; coronary artery disease; and hypertension; and the rating was increased from 60 percent to 80 percent. The denial of secondary service connection for a prostate disorder was continued. The case was remanded by the Board to the RO in May 1992 for further development. In a decision entered in July 1993, the RO granted service connection for residuals of a cerebral vascular accident or stroke. A 100 percent rating (and special monthly compensation under 38 C.F.R. § 3.350(i)(1) (1993)) was assigned for that disability from January 15, 1992, through July 1992, and a 10 percent rating was assigned thereafter. The veteran appealed the 10 percent rating. The issues remaining in appellate status, a rating in excess of 10 percent for residuals of a stroke and secondary service connection for a prostate disorder, were returned to the Board in November 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his prostate disorder is etiologically related to his service-connected kidney, ureter, and/or bladder disorders. Prior to the Board remand in May 1992, medical literature was cited in support of the contended causal relationship, and it was requested that a medical opinion addressing the matter be obtained. It is also contended on behalf of and by the veteran that his service-connected residuals of a stroke are more disabling than currently evaluated. The veteran describes right-sided weakness, continuous dizziness and frequent falls. He also states that his right leg and arm "freeze all the time." He further claims, in effect, that his service-connected disabilities preclude him from engaging in substantially gainful employment. 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for secondary service connection for a prostate disorder is well grounded. It is also the decision of the Board that the preponderance of the evidence supports the claims for an increased rating to 20 percent for residuals of a stroke and a total compensation rating based on individual unemployability. FINDINGS OF FACT 1. The veteran has not submitted competent medical evidence specifically linking any service-connected disability with a prostate disorder. 2. The veteran's service-connected residuals of a stroke include loss of sensation of the right upper and lower extremities essentially consistent with mild incomplete paralysis of the major hand and mild incomplete paralysis of the right leg. 3. He is currently service connected for bilateral kidney disease with ureteral stenosis and bladder obstruction, coronary artery disease, and hypertension, rated 80 percent; residuals of a stroke, rated (as a result of this decision) 20 percent; and malaria, rated noncompensable. 4. The veteran's service-connected disabilities preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for secondary service connection for a prostate disorder. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a 20 percent rating for residuals of a stroke have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.20, 4.124a, Part 4, Codes 8008, 8599-8515, 8599-8521 (1993). 3. The requirements for a total compensation rating based on individual unemployability have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from December 1942 to July 1944. The service medical records show that he was treated for bilateral kidney disease and malaria. An RO decision in August 1944 granted service connection and assigned 50 percent and 10 percent ratings for bilateral kidney disease and malaria, respectively. In a decision entered in January 1948, the RO increased the rating for his kidney disorder from 50 percent to 60 percent and decreased the rating for his malaria from 10 percent to noncompensable. The veteran underwent VA medical examinations in October 1944, September 1946, November 1947, and February 1953. There were no clinical findings reported at that time that were attributed to a prostate disorder. VA and private clinical records dated during the 1940's and 1950's note findings pertaining to his bilateral kidney disease. Private clinical records dated from 1981 to 1989 show that the veteran was seen on numerous occasions during that time for evaluation and treatment of multiple disorders, including kidney and prostate diseases. Prostatitis and prostatic hypertrophy were noted on several occasions from 1983 to 1986. He underwent a transurethral resection of the prostate in 1986. The veteran testified at a hearing conducted at the RO in September 1990 that he began having problems with his prostate during the 1970's and was treated for a prostate disorder during the 1980's. He described recurrent, severe problems associated with his bilateral kidney and bladder diseases for many years. He said that he had had approximately 15 episodes of blockage of the ureter during the past year. He indicated that his prostate disorder was etiologically related to his service-connected bladder and/or kidney disabilities. Medical records from the Rockwood Clinic show that the veteran was seen in January 1992 after the onset of right-sided facial, arm and leg numbness, described as decreased sensation, with no weakness. Physical examination was negative for any pertinent abnormal findings aside from some minimal decreased sensation of the right side of the face that did not cross the midline and went down to the right upper aspect of the neck where it became less distinct as the difference from one side to the other. There was also some decreased sensation on the right hand and arm when compared to the left with minimal difference noted on the trunk. The right leg showed somewhat decreased sensation, but deep tendon reflexes and strength were normal and equal throughout. The veteran ambulated well and had good balance. The assessment was right-sided decrease in sensation and probable lacunar stroke. A magnetic resonance imaging (MRI) of the brain was recommended. The veteran was seen two days later with a complaint of persistent and increasing numbness on the right side of his face, right hand and right leg, along with some weakness of the right knee and unsteadiness of balance, although he denied having any true muscular weakness. Neurological examination revealed good strength of both upper extremities and symmetric deep tendon reflexes; he was a little slow with rapid alternating movements, but was consistent from side to side. Finger-to-nose was a little erratic on each side. An MRI was reported to show a lacuna infarct on the left thalamic region. Additional private clinical records show that the veteran was seen for followup in late January 1992, and it was reported that at that time that he appeared to be recovering nicely from his lacuna stroke. His remaining complaint was a sensation of coldness in his right upper and to some extent right lower extremities. He had good strength; it was noted that he basically appeared to have recovered. His blood pressure was normal. He was seen in February 1992 and stated at that time that he was having chronic numbness and symptoms of sensation of coldness in the right arm and hand. He was able to use the muscles, but found that the numbness made it difficult for him to know what he was actually writing or where the pencil was. He was continued on medication. When seen for followup in late March 1992, he indicated that the initial numbness had changed somewhat to the point where his right side was very sensitive to cold, even on days when the temperature was normal, which seemed to be worse when he was using the limbs, and he could not walk as far as he had in the past. He believed that his symptoms were getting worse. Neurological examination showed that he was a little slow to respond and appeared a bit "befuddled" at times, but there was no obvious cognitive impairment and the remainder of the evaluation was essentially normal, aside from subjectively diminished light touch and pain sensation over the right side of the face and right extremities. The impression was left thalamatic infarct due to small vessel disease with thalamatic pain syndrome. It was reported in April 1992 that he had minimal residuals. The veteran continued to be seen on an outpatient basis for followup for his stroke throughout the remainder of 1992. He said that his right leg gave out on him when seen in early June 1992, but he had good strength in the lower extremities on examination and no new neurologic event was identified. He again complained of occasional unsteadiness on his feet several days later, associated with nausea and vomiting, and he said that he felt like he loses his balance and falls because his right leg does not quite catch up with the left one. It was noted that these were not syncopal episodes. It was also reported that he was a bit confused, but otherwise, oriented. He had good grip strength and was able to stand and bear weight equally well. The assessment was disequilibrium and nausea of unknown etiology. The veteran underwent a VA genitourinary examination in July 1992. It was noted that he had been seen on several occasions with left-sided flank pain, necessitating narcotic analgesics. Following clinical evaluation, the diagnoses were recorded as congenital horseshoe kidney, with marked pyelocaliectasis ("dilatation of the kidney pelvis and calices," Dorland's Illustrated Medical Dictionary 1291 (25th ed. 1974)), left greater than right, probably nonobstructive; prior history of bilateral renal calculi with questionable renal colic within the past year; and prior history of bladder outlet obstruction, secondary to benign prostatic hypertrophy and bladder neck contracture; history of recurrent urinary tract infection; and hypertension. It was noted that he appeared to be stable over the past year, but may need further medication for his hypertension. The veteran was seen for outpatient followup in September 1992, and his condition was reported as stable at that time. The veteran underwent a VA genitourinary examination in November 1992. Digital rectal examination showed approximately 10 grams of residual prostatic tissue which was palpably benign. Endoscopic evaluation of his urethra and bladder interior showed a mild pendulous urethral stricture which could be dilated with a flexible scope and a mild bladder neck contracture. Examination of the bladder interior revealed generalized bladder trabeculation without tumor, stone or significant other inflammatory process. It was noted that the veteran had a residual postoperative bladder neck contracture and urethral stricture following transurethral resection of his prostate and/or transurethral resection of a prior neck contracture. It was opined that these were related to his prior transurethral resection of the prostate for benign disease and did not have a direct "cause or relationship" to his prior service-connected disability, that is, his hydronephrosis and horseshoe kidney. The veteran was seen for outpatient followup in November 1992, and he complained of stiffness in the right arm and leg and a sensation of "cold" at that time. The veteran underwent a VA compensation examination in February 1993. He again noted some difficulty with using his right hand because of the loss of sensation, such as picking up small objects, and he said that his right hand and foot were cold sensitive. Physical examination showed the patellar response was down on the left and up on the right. There was no loss of sensation to pinprick or light touch in the extremities or face. The cranial nerves were intact. There was no significant dementia. The diagnoses were hypertension and thalamic lacunar stroke, secondary to hypertension with primary sensory loss, most marked in the right hand. The veteran was hospitalized in a VA medical center in March 1993 for evaluation of increasing weakness, difficulty getting out of bed and numbness on the right side. It was noted that his symptoms were old, but he felt that they were recently increased. There was some question of faintness, but no definite syncope. Neurological examination showed finger-to-nose test was poor in that it was slow, but it was otherwise accurate. Rapid movements were slow. No tendency to fall was noted. A CT scan showed no essential abnormalities; a prior CT scan was noted to show some age-related gliosis and a small lacunar infarct in the left ventral posterolateral nucleus of the thalamus which explained the right sensory defect. The veteran did well and gradually became more able to ambulate. He was discharged with a primary diagnosis of status post left thalamic lacunar infarct with right sensory defect and incoordination. Additional clinical records from the Rockwood Clinic show that the veteran continued to be followed for his multiple disabilities throughout 1993. He was seen in May 1993 for a confirmatory consultation for further consideration of right-sided paresthesias; it was noted that he was right-handed. His paresthesia involved the right arm diffusely, and the right leg to a lesser extent, particularly below the knee. He described it as an ice water-like paresthesia. The right-sided limbs felt clearly colder than the left and there was some painful component in the distal right arm as well. There was some numbness in the right side of the face, as well as the dysesthesia with the cold feeling. The only painful component was in the right hand. Neurological examination showed that his mental status was intact. Additional clinical findings included a slight decrease in tactile perception of the right foot and more significant asymmetry in the upper extremity, somewhat of a warm dysesthesia that accompanied tactile perception of the right foot, moderately decreased vibration in the distal lower extremity, a narrow-based gait. The veteran was seen in August 1993 for followup of a CT scan, which was reported to show no evidence of a cerebral infarct. It was believed that his complaint of headaches was probably musculoskeletal in origin. Private hospital records show that the veteran was hospitalized in February 1994 for evaluation of chest pain. Following clinical and laboratory evaluations, the impression was arteriosclerotic heart disease with probable subendocardial myocardial infarction. II. Analysis A. Secondary Service Connection for a Prostate Disorder The threshold question for the Board's consideration is whether the veteran has presented evidence of a well-grounded claim; that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board previously remanded this case to develop the evidence, under the assumption that the claim was well grounded. However, on further review of the record and precedent opinions of the United States Court of Veterans Appeals, we find this claim is not well grounded. A review of the record fails to reveal any findings suggestive of a prostate disorder during service or for many years thereafter. Thus, there is no indication that the disability in question was incurred in or aggravated by service. The veteran does not contend otherwise. His claim is that his prostate disorder is etiologically related to his service-connected bilateral kidney, ureter, and/or bladder disorders. Specifically, he cites a medical text for the proposition that prostatitis is a common result of surgical or other invasive procedures of the urinary tract. See Informal Hearing Presentation at p. 3 (Jan. 30, 1991). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). However, for his claim to be plausible or well grounded, it must be supported by competent evidence, not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Under the circumstances, this would require competent medical evidence of causation to link his prostate disorder to a service-connected disability. The veteran has presented no evidence of medical causality specific to this case. In fact, the only such evidence that addresses the contended causal relationship goes against his claim. Specifically, pursuant to the Board's May 1992 remand, a VA urologist who examined the veteran in November 1992 opined that there was no direct cause or relationship between his prostate disorder and his service-connected kidney disease. The etiology of his prostate disorder is not apparent from this report or any other medical evidence on file, but one point is clear: No physician or medical specialist has suggested that the veteran's prostate disorder is etiologically related to any of his service-connected disabilities. As far as the veteran's testimony on this matter is concerned, as a layman, he is not competent to offer opinions on medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In summary, I find no competent evidence on file to support the veteran's allegation that his prostate disorder is causally related to his service-connected genitourinary diseases. Accordingly, I find that his claim is implausible and not well grounded, and the claim for secondary service connection must be dismissed. Grivois v. Brown, 6 Vet.App. 136 (1994). The RO is advised that decisions on the merits on this claim prior to and including this decision are to be regarded as dismissals, without finality as to the merits. See Grottveit v. Brown, 5 Vet.App. 91 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claim, even though the RO decision was on the merits. Compare Bernard v. Brown, 4 Vet.App. 384 (1993). B. A Rating in Excess of 10 Percent for Residuals of a Stroke Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Hemorrhage from a brain vessel is rated 100 percent for six months. Thereafter, the residuals are rated with a minimum evaluation of 10 percent. 38 C.F.R. § 4.124a, Part 4, Code 8009. Incomplete paralysis of the median nerve of the major hand (including pain and trophic disturbances) productive of moderate functional impairment warrants a 30 percent evaluation. Mild disability is rated 10 percent. 38 C.F.R. § 4.124a, Part 4, Code 8515. Incomplete paralysis of the external popliteal nerve (including anesthesia of the dorsum of the foot and toes) productive of moderate functional impairment warrants a 20 percent evaluation. Mild disability is rated 10 percent. 38 C.F.R. § 4.124a, Part 4, Code 8521. With respect to incomplete paralysis of peripheral nerves, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (1993) (para. preceding Diagnostic Code 8510). The veteran suffered a cerebral vascular accident or stroke in January 1992. The RO properly assigned a 100 percent rating for six months through July 1992, and a minimum rating of 10 percent for the residuals of the stroke has been in effect ever since. 38 C.F.R. § 4.124a, Part 4, Code 8009. The question here is whether a rating in excess of 10 percent is warranted. In reviewing the record, I find that the only apparent residuals of a stroke are some loss of sensation involving the right upper and lower extremities. The veteran does report some functional impairment of the right hand, which is his dominant or major hand. I note, for example, his history of having problems grasping or holding on to certain objects. However, clinical evaluations and outpatient clinic records during the period of time in question fail to demonstrate any loss of strength of the right upper extremity, including loss of grip strength of the right hand. The sensory changes are consistent with minor incomplete paralysis, within the meaning of the cited diagnostic code, but this only permits a 10 percent rating. However, I note that the veteran's loss of sensation of the right lower extremity is also consistent with mild incomplete paralysis. I find no indication of any loss of strength of the right leg attributable to a stroke, but since the sensory changes are consistent with mild functional impairment, an additional 10 percent rating is indicated. 38 C.F.R. § 4.124a, Part 4, Code 8521. Thus, an increased rating to 20 percent is warranted. C. A Total Compensation Rating Based on Individual Unemployability Total disability ratings for compensation may be assigned where the schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16. The veteran is service connected for the following disabilities: Bilateral kidney, ureteral and bladder disease; coronary artery disease; and hypertension, rated 80 percent; residuals of a stroke, rated (as the result of this decision) 20 percent; and malaria, rated noncompensable. The issue is whether his service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"; Moore v. Derwinski, 1 Vet.App. 83 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet.App. 361 (1993). The veteran's employment history is not entirely clear from the record, but it is apparent that he has not worked for a number of years. A form associated with an August 1991 examination indicates he last worked in 1977, as a millwright. Before that, he was a carpenter. While non-service-connected disabilities and his age may not be considered (see 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)), it is my judgment that the nature and extent of his service-connected disabilities are such that he could not realistically be expected to obtain or maintain any type of substantially gainful employment. His genitourinary disabilities, particularly the bilateral kidney disease, are severely disabling and require ongoing treatment and attention. He has hypertension and coronary artery disease and was recently hospitalized for a heart attack. He also has residuals of a stroke, including some functional impairment of the dominant right hand. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. It is my view that the veteran's severe service-connected physical impairments meet this standard. Accordingly, a total compensation rating based on individual unemployability is warranted. ORDER Secondary service connection for a prostate disorder is dismissed as not well grounded. An increased rating to 20 percent for residuals of a stroke is granted. A total compensation rating based on individual unemployability is granted. J. E. DAY 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.