BVA9505362 DOCKET NO. 93-10 682 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from October 1959 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Nashville, Tennessee, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service-connected hypertension renders him unable to work. He has reported that a VA physician recommended he discontinue working because of uncontrolled high blood pressure, which is exacerbated by activity. The veteran has cited the findings of the Social Security Administration, which determined that he was disabled for the type of work that he could perform. The veteran has reported that he suffers from various nonservice-connected ailments in addition to his service-connected conditions. 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 supports the assignment of a total rating based on unemployability due to service-connected disability. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The veteran is service-connected for arterial hypertension with some cardiomegalia, evaluated as 30 percent disabling; post- traumatic stress disorder, evaluated as 10 percent disabling; stasis dermatitis of both legs, evaluated as 10 percent disabling; and hearing loss, noncompensable. 3. The veteran completed three years of college and vocational rehabilitation in air conditioning and refrigeration. He has civilian occupational experience as a corrections officer and in maintenance. He terminated his last employment in 1988 on doctor's advice. 4. The veteran's service-connected disabilities preclude him from obtaining or retaining some form of substantially gainful employment. CONCLUSION OF LAW A total disability rating based on individual unemployability due to the veteran's service-connected disabilities is warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). That is, the Board finds that he has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The veteran contends that he is unemployable mainly as a result of his service-connected hypertension and associated symptomatology. The law provides that a total disability rating based on individual unemployability due to a service-connected disability may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history, Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991); impairment caused by nonservice-connected disabilities, Hatlestad v. Derwinski, 1 Vet.App. 164, 170; and the loss of use of work-related functions due to pain, Ferraro, 1 Vet.App. at 330. By rating decision of February 1976, the veteran was granted service connection for arterial hypertension, evaluated as 10 percent disabling, and for hearing loss, rated as noncompensable. Service connection for post-traumatic stress disorder was granted by rating action of August 1984. The disability was rated as 10 percent disabling By rating action of March 1991, the veteran's service-connected hypertension was characterized as arterial hypertension with some cardiomegaly, evaluated as 30 percent disabling. The veteran was granted service-connection for stasis dermatitis of both legs, 10 percent disabling, by rating action of November 1992. The veteran's maximum service-connected percentage rating for a single disability, 30 percent, and the combined rating of 40 percent do not currently satisfy the minimum percentage requirements for individual unemployability. See 38 C.F.R. § 4.16(a). However, it is the policy of the VA 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. Where a veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where a veteran is unemployable due to service- connected disability. 38 C.F.R. § 4.16(b). Total disability will be considered to exist where there is present any disability that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue through the life of the disabled person. 38 C.F.R. § 3.340(b). The Board must evaluate whether there are circumstances in the veteran's case, apart from any nonservice-connected conditions, which would justify a total disability rating based on unemployability. See Van House v. Brown, 4 Vet.App. 361, 363 (1993). A July 1988 VA discharge summary report documented the veteran's diagnoses of episodic loss of consciousness of unknown etiology, hypertension of 23 years' duration, poorly controlled, non- insulin dependent diabetes mellitus, history of alcohol abuse and an anxiety disorder. A September 1988 VA discharge summary related the veteran's report that a physician in the Medical Service had told him that he was not able to return to work. However, the treating physician felt the veteran could seek employment. A January 1991 outpatient treatment entry indicated that the veteran should not lift weight greater than 30 pounds, and should not work in an area where sudden loss of consciousness would pose a danger. In a subsequent entry that month, it was noted that although the veteran's blood pressure was not "disabling," it could conceivably make it difficult for him to obtain a job. An April 1989 outpatient entry noted that the veteran had been unable to continue in his previous employment due to his syncope spells and restrictions on lifting. A medical clinic entry of that month reported that the veteran had not worked since August 1988 due to his high blood pressure and fainting spells. A July 1989 outpatient record noted that a recent biopsy of the veteran's bladder had been positive, and he was assessed with a grade I transitional cell carcinoma of the bladder. He was treated with chemotherapy, and a September 1989 cystoscopy revealed no recurrence of the cancer. A discharge summary reflected that the veteran had been hospitalized from February to March 1990 in an attempt to control his hypertension. The report documented that the condition had been very difficult to control despite numerous antihypertensives. The veteran reported frequent episodes of tachycardia and diaphysis with flushing, with occasional episodes while walking five miles a day, with arm numbness. A chest X-ray had revealed cardiomegaly without infiltrates, and an electrocardiogram showed poor R wave progression with nonspecific ST changes, left ventricular hypertrophy with straining, and U waves prominent. During his admission a systolic murmur was noted. Roger M. Des Prez, M.D., of the VA submitted a statement in March 1990, reporting that the veteran suffered from severe hypertension that was very difficult to control. As a result, he was unable to perform the sort of employment available to him. In August 1990, the veteran underwent a medical assessment of his ability to do work-related activities. It was determined that he was able to lift or carry very little due to syncopal episodes, back pain, shortness of breath, and poorly controlled hypertension. He was found to be able to stand or walk for one or two hours in an eight hour workday, but only for half an hour without interruption. He could sit for three to four hours a workday, but only for an hour without interruption. The veteran was assessed as never being able to crawl, and only occasionally was he able to perform other postural activities. Various environmental restrictions were noted due to his persistent blood pressure elevation. A.J. Mitchum, M.D., submitted an associated report noting the veteran's numerous somatic complaints and prescribed medications. It was indicated that chest X-ray studies had revealed cardiomegaly, with an abnormal electrocardiograph. The diagnoses included: severe hypertension with polypharmacy, syncopal episodes by history, obesity, history of carcinoma of the bladder, diabetes mellitus type II, stasis dermatitis of the anterior legs, and fluid retention in the lower extremities secondary to cardiovascular disease with most likely some venous insufficiency. Dr. Mitchum concluded, citing in part the veteran's unresponding hypertension, that the veteran's condition would likely deteriorate, affecting his vision, cardiac function and renal function. At a January 1991 VA examination an abnormal electrocardiogram of the veteran was taken. On examination, his systolic blood pressure was higher than normal. No murmur was detected. The veteran was determined to have bilateral high frequency sensorineural hearing loss at the time of a VA examination in June 1992. He had recently been issued a pair of hearing aids. VA outpatient medical records reflecting treatment of the veteran during 1990 to 1992 show continuing difficulties controlling his blood pressure. No recurrence of his bladder tumor was reported. The veteran indicated that he experienced chest pain with episodic blackouts. He was observed to have stasis dermatitis, tinea pedis and chronic edema of his lower extremities. A Social Security Administration (SSA) decision of February 1991 documented that the veteran's treating physician had indicated that the veteran may be able to perform work involving lifting greater than 30 pounds, or in a hazardous environment. Symptoms of the veteran's high blood pressure were noted to be exertional chest pain, shortness of breath, and pedal edema. Side-effects of the veteran's extensive medicinal regimen were noted to include lethargy and dizziness. Testing had revealed mild cardiomegaly and increased marking of the lungs. Quite a bit of fluid retention in the legs was observed, as well as stasis dermatitis of the legs with a previously associated diagnosis of peripheral vascular disease. Dr. Mitchum's findings were cited with his notation that the veteran's health would preclude him from working even in sedentary work on a sustained basis. These findings had been verified by expert vocational testimony, who could find no appropriate employment position for the veteran. It was determined that the veteran was unable to engage in vocationally relevant work or other substantially gainful activity on a sustained basis. The veteran underwent VA skin and vein examinations in October 1992. No history of peripheral vascular disease was reported. The vascular examination was essentially normal, except for a possible element of stasis dermatitis due to venous insufficiency in the lower extremities, bilaterally. The dermatological examiner offered diagnoses of pseudofolliculitis barbae, epidermal cysts, stasis dermatitis complicated by venous circulation defects, a history of diabetes and hypertension. A VA examination of March 1993 revealed that the veteran had an enlarged heart. An associated electrocardiogram was suggestive of an old inferior myocardial infarction of unknown duration. The diagnoses were persistent hypertension and an enlarged heart, not ruled-out by chest X-ray. His combined service-connected rating was 40 percent. At his May 1993 hearing, the veteran reported that he had completed two or three years of college, focusing on psychology, and had undergone vocational rehabilitation about 10 years previously in air conditioning and refrigeration. In recounting his employment history, the veteran related that he had served as a combat engineer in the service for over 16 years, subsequently working in the corrections department of a state penitentiary as a supervisor for about 6 years, and finally as a maintenance man for about two years. He reported that his work in maintenance had involved extensive physical labor. The veteran testified that he had quit his last job at his physician's recommendation, because of uncontrolled high blood pressure that was exacerbated by physical activity. The veteran testified that two VA physician's had determined that he was unemployable due to the severity of his hypertension and related symptoms. He reported that his blood pressure rose with physical activity, despite numerous medications. He indicated that he experienced swelling due to fluid retention in his legs, and participated in a post- traumatic stress disorder therapy group twice a week. The veteran testified that he had discontinued working in 1988 on doctor's advice, due to his hypertension and blackouts. Although the veteran completed three years of college, his employment history has consisted of almost exclusively of positions requiring physical labor. An August 1990 medical evaluation solely for purposes of assessing employability revealed that the veteran's physical condition, including his hypertension, was likely to deteriorate, impacting on various bodily systems. Examiners have consistently cited the veteran's hypertension, at least in part, in referencing the source of his physical limitations, and resulting industrial impairment. A treating physician reported that the veteran was unable to perform the sort of employment available to him, and a vocational expert could identify no employment position that the veteran would be able to perform, in light of his reported disabilities. This was confirmed by the August 1990 private examiner's findings. The inability to control the veteran's hypertension is well-documented in VA outpatient treatment records, as is the fact that his high blood pressure is exacerbated by rather minimal physical activity. In light of the veteran's educational background, employment history and physical limitations, the Board finds it questionable whether the veteran would be capable of performing the physical acts required by employment, including sedentary work. See Van House v. Brown, 4 Vet.App. 361, 364 (1993). Although the veteran has not been accorded the highest rating possible for his most severely disabling service-connected disability, hypertension, it is only because he has failed to manifest clinical findings that satisfy the relevant criteria and there is doubt whether he is capable of performing employment activities. The veteran's condition has necessitated hospitalization in an attempt to control his high blood pressure, and has clearly severely impaired his industrial ability. When, after consideration of al evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, as here, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Resolving all doubt in the veteran's favor, the Board concludes that the veteran is unemployable by reason of his disabilities, and a total rating based on unemployability is warranted. 38 C.F.R. § 4.16(b) (1994). ORDER A total rating based on individual unemployability due to service-connected disability is granted. CHARLES E. HOGEBOOM 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.