BVA9507126 DOCKET NO. 93-11 161 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from November 1942 to December 1945 and from November 1951 to July 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1992, May 1992 and March 1993 rating decisions. The veteran was present for a hearing before a hearing officer at the RO in August 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service-connected disabilities, especially his impairments due to osteoarthritis, prevent him from obtaining and maintaining 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 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 evidence of record supports the claim of a total rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. Service connection has been established for limitation of motion of the cervical spine due to osteoarthritis, evaluated as 30 percent disabling; limitation of motion of the lumbar spine due to osteoarthritis, evaluated as 20 percent disabling; limitation of motion of the right shoulder due to osteoarthritis, evaluated as 20 percent disabling; limitation of motion of the left shoulder due to osteoarthritis, evaluated as 20 percent disabling; limitation of motion of the right ankle due to osteoarthritis, evaluated as 10 percent disabling; limitation of motion of the left ankle due to osteoarthritis, evaluated as 10 percent disabling (protected); limitation of motion of the right wrist due to osteoarthritis, evaluated as 10 percent disabling; limitation of motion of the left wrist due to osteoarthritis, evaluated as 10 percent disabling; limitation of motion of the right hip due to osteoarthritis, evaluated as 10 percent disabling; limitation of motion of the left hip due to osteoarthritis, evaluated as 10 percent disabling; mild pyelonephritis, evaluated as 10 percent disabling; ethmoidal sinusitis, evaluated as 10 percent disabling; and calcaneal spurs of the right and left heels, each evaluated as noncompensable disabilities. The combined disability rating is 90 percent. 3. The veteran's service-connected disabilities currently preclude him from engaging in substantially gainful employment consistent with his education and occupational history. CONCLUSION OF LAW A total rating for compensation purposes based on individual unemployability is warranted. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341 and Part 4 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. Total disability rating 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 (1993). A review of the veteran's employment record and educational background discloses that he has experience as a crane operator and has a high school education. He has reported that he has not worked since 1975. See the January 1992 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21- 8940). He was rated as permanently and totally disabled for pension purposes, primarily because of hypertensive heart disease and residuals of a skull fracture, as of March 1967. In March 1992 the veteran underwent an AKA (above-the-knee amputation) on the left due to vascular complications. He received some physical therapy in the hospital and "instructions about ambulation, etc. with crutches as well as wheelchair." During a personal hearing before a hearing officer at the RO in August 1992 the veteran reported that the main reason he was forced to quit working was because of his arthritis. He had attempted to return to work, but was unsuccessful. He asserted that his arthritis had become more painful in the last two or three years. He was confined to a wheelchair and only got out of the wheelchair to use the bathroom or go to bed. His shoulder, spine and hip pain prevented ambulation with crutches or a walker. He indicated that he took Motrin and Darvon to relieve his arthritic joint pain. A July 1992 document from the Social Security Administration, submitted by the veteran during the hearing, disclosed that he "became entitled to disability [in] 3/67 (March 1967)...." See the Report of Confidential Social Security Benefit Information (SSA Form 2458) dated July 2, 1992. The report of a VA orthopedic examination in September 1992 discloses that the veteran had limitation of motion of all joints tested and evidence of pain with joint motions. Examination of the shoulders revealed positive impingement signs bilaterally. The examiner's impression was "[s]evere osteoarthritis of multiple areas." The examiner also stated that the veteran "certainly has a difficult problem in that he has limitation of movement in almost all joints with pain. With his AKA on the left side, it makes it very difficult for him" to ambulate. In a February 1993 decision, based in large part upon the results of the September 1992 VA orthopedic examination, the hearing officer increased the veteran's disability ratings for the limitation of motion of each shoulder due to osteoarthritis from 10 to 20 percent, and increased the disability rating for the limitation of motion of the cervical spine due to osteoarthritis from 20 to 30 percent. A combined 90 percent rating has been in effect for his service connected disabilities since January 1992. Upon review of the evidence the Board finds that the veteran clearly has limitations due to non service-connected disabilities, especially his cardiovascular disorder which led to his March 1992 amputation. However, in view of the medical evidence, the Board also finds that his service-connected limitations due to osteoarthritis probably prevent him from performing substantially gainful employment consistent with his education and work background. In this regard, the examinations confirm that these service-connected disabilities are productive of significant, and often severe, impairment which cause his basic employment limitations. Accordingly, the Board finds, by extending the benefit of the doubt to the veteran, a total rating for compensation purposes based on individual unemployability is warranted. ORDER A total rating for compensation purposes based on individual unemployability is granted, subject to the regulations controlling disbursement of VA monetary benefits. ROBERT D. PHILIPP 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.