BVA9503591 DOCKET NO. 92-16 454 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability evaluation on the basis of individual unemployability due to the veteran's service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and J. C. W. ATTORNEY FOR THE BOARD A. D. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from February 1943 to November 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs, (VA) Regional Office (RO) in Denver, Colorado. A rating decision dated in November 1991 denied entitlement to a total disability rating for compensation on the basis of individual unemployability. The veteran was afforded a personal hearing at the RO before a hearing officer in January 1992. A second hearing was held before a traveling member of the Board sitting in Denver, Colorado, in January 1993. In May 1993, the Board remanded this case for further development. Subsequently, the RO confirmed and continued the prior rating action in December 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected disabilities are of such severity as to prevent him from gainful employment. He points out that his physical symptoms include chronic pain due to shrapnel wounds residuals. He further relates that he undergoes weekly psychiatric treatment and suffers from depression and severe symptoms of post-traumatic stress disorder. The veteran maintains that he has been denied employment due to his service connected disabilities and VA physicians have opined that he is unemployable due to his service connected disabilities. 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 record supports the allowance of a total rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran has an eighth grade education and work experience as a tenant farmer, machinist and carpenter. 3. His service-connected disabilities include post-traumatic stress disorder, currently evaluated as 30 percent disabling; residuals of gunshot wound, right (major), Muscle Group IV, with retained foreign body, currently evaluated as 20 percent disabling; scar, residuals of shell fragment wound to the right lower extremity, currently evaluated as 10 percent disabling; cicatrices of the right buttock, thigh, face and thorax, currently noncompensably disabling. The veteran's combined total rating for service-connected disabilities is 50 percent. 4. The veteran's service-connected disabilities are of such severity as to preclude him from securing and following any form of substantially gainful employment consistent with his education and work experience. CONCLUSION OF LAW A total rating for compensation purposes based on individual unemployability due to the veteran's service-connected disabilities is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the appellant has submitted a well-grounded claim and, if so, whether the VA has assisted the appellant in properly developing his claim. A "well-grounded" claim is one which is plausible. The appellant's claim appears to be reasonably based. Our review of the evidence further indicates that all relevant facts have been properly developed and that there is sufficient evidence upon which to fairly resolve the issue raised by the instant case. Therefore, a second remand in order to permit additional development of the record is unnecessary. The law provides that disability evaluations are determined by the application of a schedule of rating which is based upon average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Total disability ratings for compensation purposes 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 disability or disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.321, 3.340, 3.41, 4.16 (West 1991). The veteran's service-connected disabilities include post-traumatic stress disorder, currently evaluated as 30 percent disabling; residuals of gunshot wound, right (major), Muscle Group IV, with retained foreign body, currently evaluated as 20 percent disabling; scar, residuals of shell fragment wound to the right lower extremity, currently evaluated as 10 percent disabling; cicatrices of the right buttock, thigh, face and thorax, currently noncompensably disabling. The veteran's combined total rating for service-connected disabilities is 50 percent. The veteran has reported work experience as a tenant farmer, machinist and carpenter. He has an eighth grade education and has reportedly not worked on a regular basis since 1979. A review of the veteran's medical history indicates that in June 1944, he received multiple small shell fragment wounds to the right buttock, right posterior right leg, right shoulder and right arm. The wounds were debrided and dressed. A neuropsychiatric report, dated in September 1944, relates that after recovering from the wound the veteran became increasingly nervous, mildly depressed and developed gastro-intestinal symptoms. The diagnosis was psychoneurosis, anxiety hysteria, moderately severe, manifested by nervousness, mild depression, and gastro-intestinal conversion symptoms. He was found unfit for further combat duty. The veteran's separation examination dated in November 1945 showed scars on the lateral aspect of the right finger, a scar on the flexion surface of the right leg; a scar of the right buttock and a scar on the right thorax. The veteran underwent a May 1946 post service examination. Examination of the chest revealed a circular scar, 1/2 inch in diameter over the spinous portion of the right scapula; a 3/4 x 1/4 inch scar lateral to the angle of the scapula; and a 3/4 x 1/2 inch diagonal scar in the mid-scapula region of the ninth rib. On the right thigh there was a 1 x 1/2 inch vertical scar on the lateral aspect of the right buttock; a 2 x 3/4 inch vertical scar on the right gluteal fold; a 1 x 1/2 inch scar parallel and lateral to the previously described scar; and a 1 x 1/4 inch vertical scar lateral over the lower third right thigh. On the right leg there was a 1 x 1/2 inch scar over the upper portion of the fibular region and below that scar there was a 2 x 1/2 inch scar. These scars were reportedly not tender or adherent. An X-ray of the chest revealed three metallic foreign bodies in the right thoracic wall. Two were lying anteriorly in the region of the 5th rib and one was lying posteriorly in the region of the 8th rib. The diagnoses were multiple cicatrices of the chest and extremities, and metallic foreign bodies of the right thoracic wall. A rating decision dated in May 1946 granted service connection for a moderate wound to Muscle Group IV, right with foreign bodies and assigned a 10 percent evaluation. This decision also granted service connection for cicatrices of the right buttock, thigh and leg, and assigned a noncompensable rating. A 1960 VA mental status examination reflected a diagnosis of psychoneurosis, anxiety hysteria, in remission. It was noted that no neuropsychiatric treatment was indicated at that time. A rating decision dated in October 1960 found that there was clear and unmistakable error as to the May 1946 rating decision and granted service connection for psychoneurosis, anxiety hysteria, in remission at a noncompensable rate. The veteran underwent examinations at a VA facility in April and May of 1989. X-rays revealed metallic foreign bodies about the proximal right leg and overlying the right hemipelvis and femur. During this time period the veteran also received treatment for disabilities including prostate cancer and a cardiac disability. An August 1989 VA psychiatric examination report reflects a diagnosis of post-traumatic stress disorder. A rating decision dated in December 1989 recharacterized the veteran's neuropsychiatric disorder as post-traumatic stress disorder. A rating decision dated in June 1991 granted service connection for the residual of a scar to the right lower extremity and assigned a 10 percent rating. Statements of a VA clinical psychologist, Dr. P., dated in June and December 1990, relate that the veteran had been undergoing group psychotherapy. The psychologist reported that the veteran was "considerably impaired due to his emotional reactions to post-traumatic stress disorder." The veteran underwent a VA disability evaluation examination in July 1991. X-rays revealed multiple soft tissue shell fragment wounds to the chest and face, right thigh, right calf, right groin, right cheek and chest overlying the right lower lung. The veteran also underwent a neuropsychiatric examination. The examiner noted that the veteran's prior medical history was not available so he was unable to comment on any increase in the intensity of his post-traumatic stress disorder symptoms. However, it was noted that the psychiatric symptomatology was consistent with Dr. P's July 1990 assessment and appeared to be more symptomatic. He further noted that the veteran's depressive disorder, not otherwise specified, was caused by the post-traumatic stress disorder. A rating decision dated in July 1991 combined scars to the face and thorax with scars of the buttock and thigh at a noncompensable rating. The post-traumatic stress disorder disability evaluation was increased to 30 percent. Entitlement to a total disability evaluation on the basis of individual unemployability due to the veteran's service-connected disabilities was denied. The aforementioned VA psychologist submitted another letter dated in November 1991 indicating that he had treated the veteran since January 1990 and opined that the veteran was not able to be gainfully employed due to his post-traumatic stress disorder and wounds. A VA physician, D.S., indicated in a note dated in February 1992 that the veteran had prostate carcinoma and postoperatively underwent radiation therapy. As a result of his pelvic pain and radiation he was unable to work.. Another statement by this same physician and dated in either February or April 1992 related that the veteran was unable to work because of his pain disorder and post-traumatic stress disorder. The chronic pain experienced by the veteran was reportedly attributable to shrapnel wounds incurred during World War II. A VA physician, D.C., M.D., wrote a note dated in April 1992. He indicated that because of the veteran's psychological disorder and chronic pain disorder he had not been employed or employable since 1970. The VA attempted to contact this physician in 1993; however, Dr. P. in October 1993 indicated that the physician had relocated and the veteran had been unable to ascertain his whereabouts. In January 1992 and 1993 personal hearings were held. The veteran related his medical history and then current symptoms. He related that he last worked in 1979 at a machine shop that eventually closed. Since that time he worked at odd jobs. He further reported that he was in receipt of Social Security administration benefits as a result of his age and not due to a disability. In March 1994, a social and industrial survey of the veteran was conducted. He was neatly dressed, and oriented to time, place and person. It was noted that there was memory impairment and the veteran had trouble focusing on questions. He was visibly shaken when he recounted his war experiences. At times he was disoriented. The interviewer noted that the veteran appeared to be honest, conscientious and he appeared stoic. She opined that the veteran was considerably impaired and unemployable due to his significant depression and chronic physical pain. That same day the veteran underwent a psychiatric examination. Mental examination revealed that the veteran was very vague and taciturn with his responses. He was reluctant to talk about his war experiences and when pressed he would weep. There was some psychomotor retardation and his intelligence was estimated in the low average range. He was oriented to time, place and person. Recent and remote memory were intact. His affect was depressed and somewhat constricted. The examiner noted that the post-traumatic stress disorder symptoms "certainly do" interfere with his daily functioning. He was significantly depressed and the veteran described ongoing depression. His degree of disability was considered to be moderately severe. The Axis I diagnosis was post-traumatic stress disorder. The physical examination report noted the scars on the right knee and thorax. They were described as nonadherent. X-rays revealed metallic densities of the right knee and no acute disease; minimal osteoarthritis of the hips and both shoulders of the right knee. It was also indicated that there was limited physical activity, as reported by the veteran, due to chronic pain. There is a clinical note dated in March 1994 from a VA physician, N. B., M.D., relating that he had treated the veteran for the last 5 months. This physician's specialty was not given. He noted that Dr. P. was of the opinion that the veteran's post-traumatic stress disorder symptoms rendered him effectively unemployable and Dr. N.B. could see no evidence to the contrary. It was also commented that the veteran's shrapnel wounds severely restricted his ability to perform physical tasks in the workplace. This was reiterated by this physician in a November 1994 statement. In this regard, given the nature of the veteran's disabilities in question and other evidence of record, it is apparent that the veteran suffers from significant impairment. Although the veteran suffers from nonservice-connected disabilities of some significance, it is found that the record supports a finding that the veteran's service-connected disabilities are also significant in nature and would preclude him from a practical standpoint in acquiring gainful employment, especially in light of his occupational experience and educational background. The statements which have been submitted by healthcare personnel offering opinions to the effect that the veteran cannot maintain employment by reason of service connected disabilities outweigh, in terms of probative value, those opinions and findings, which may not be supportive of such a position. Stated otherwise, given the opinions which are expressed which are supportive of the veteran's claim, and in also noting the reasoning offered supportive of the opinions expressed, it would be futile in this case to deny the veteran's claim as such a finding would, quite simply, not withstand the Court of Veterans Appeals' (Court) scrutiny. Therefore, as the evidence of record is sufficiently balanced as to place matters in equipoise, and in granting the benefit of the doubt in favor of the veteran, it is found that a total rating under the provisions of 38 C.F.R. § 4.16 (1994) is warranted on a an extraschedular basis (38 C.F.R. § 3.321 (1994)), as he is, essentially, precluded from a practical standpoint from maintaining gainful employment by reasons of service connected disabilities. ORDER A total rating for compensation purposes based on individual unemployability is granted, subject to the laws and regulations governing the grant of monetary benefits. JEFF MARTIN 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.