Citation Nr: 0004543 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 91-46 073 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from October 1944 to October 1945. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating action in which the RO denied the veteran's claim for a total disability rating based on individual unemployability. Following appellate review in February 1992, the Board remanded the case to the RO for further development. Following completion of the remand request, a rating action in October 1992 confirmed the previous denial of the veteran's claim and a supplemental statement of the case (SSOC) was issued in October 1992. The case was appealed to the Board in January 1993. In April 1993, the Board remanded the case a second time to the RO for due process development. Following completion of the due process matter, the case was returned to the Board. In November 1993, the Board remanded the case a third time for further development. The case has been returned to the Board for appellate review. The veteran was afforded a hearing before an RO hearing officer in March 1997. A transcript of the hearing is of record. Review of the record reveals that on various occasions, VA medical care providers have linked the veteran's hearing impairment to the administration of drugs used in treatment of his service-connected respiratory disorder. Thus the evidence reasonably raises an issue of entitlement to service connection on a secondary basis for hearing loss. This issue has not been developed for appellate review, and so will not be considered by the Board at this time. However, it is directed to the attention of the RO so that appropriate action can be undertaken. FINDINGS OF FACT 1. Service connection is in effect for pulmonary tuberculosis with asbestosis with a disability rating of 60 percent. 2. VA physicians and a private physician have opined that the veteran is precluded from engaging in substantially gainful employment by reason of his service-connected pulmonary tuberculosis with asbestosis. CONCLUSION OF LAW The veteran is individually unemployable by reason of his service-connected pulmonary tuberculosis with asbestosis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran claims that he is totally disabled as a result of his service-connected pulmonary tuberculosis. In a March 1953 rating action, the RO granted service connection for pulmonary tuberculosis and assigned a 30 percent rating. In a January 1990 rating action, the veteran's service connected pulmonary tuberculosis was evaluated in light of the veteran's claim that he had been on drug therapy for 6 months after active tuberculosis was found in 1988. After reviewing the medical evidence, the RO granted a 100 percent rating from September 1988, followed by a 50 percent rating from April 1991, and a 30 percent rating from April 1996. The veteran filed his claim for a total disability rating in August 1990. A letter of medical treatment dated in August 1990 was received from Jerry K. Lewis, M.D. Dr. Lewis stated that the veteran had severe pulmonary asbestosis complicated by tuberculosis and that his long term prognosis was poor. He further stated that the damage was severe and that he was permanently disabled. There was no damage due to the medications. It was his opinion that the veteran would never be able to pursue gainful employment. The veteran was afforded a VA examination in October 1990. The examiner noted a history of treatment of the veteran's tuberculosis which included a question of pneumothorax in 1954 as well as subsequent pleural stripping procedures to restore the veteran's lungs to adequate inflation. Examination revealed that the veteran's lungs were clear to auscultation and percussion with some decreased breath sounds over the right lower lung fields. There was thoracotomy scar on the right. The assessment was history of tuberculosis. In a January 1991 rating action, the RO denied the claim for a total disability rating stating that the evidence of record did not establish that the veteran was unemployable due solely to his service connected pulmonary tuberculosis. In a letter dated in June 1991, Dr. Lewis indicated that the veteran was receiving treatment from him for lung problems which were directly related to his tuberculosis and silicosis. The Board remanded the case to the RO in February 1992 to obtain copies of treatment records from Dr. Lewis and to afford the veteran a comprehensive VA pulmonary examination. Private treatment records dated from September 1988 to March 1992 reveal that the veteran was seen for treatment of pulmonary tuberculosis. The veteran was afforded a VA pulmonary examination in May 1992. The veteran complained of occasional night sweats. Examination of the lungs revealed decreased breath sounds on the right and clear on the left. The examiner diagnosed pulmonary tuberculosis which was treated. The veteran was afforded a subsequent VA pulmonary examination in August 1992. The veteran complained of shortness of breath, recent weight loss of 15 pounds, and of an increasing cough. On examination, there was an old right thoracoplasty with a dullness to percussion on the right chest. The date of inactivity was not known. The examiner noted that the veteran had a far advanced disease requiring pneumothorax, thoracoplasty, and subsequent drug therapy. In an October 1992 rating action, the RO denied an increased rating for pulmonary tuberculosis and continued to deny a total disability rating. Following appellate review by the Board in November 1993, the case was remanded a third time to allow consideration of service connection for lung pathology claimed as silicosis and asbestosis as secondary to his service-connected pulmonary tuberculosis. Following the Board's remand directives, the veteran was afforded another VA pulmonary examination in March 1994. The veteran complained of periodic anterior chest discomfort, sharp pleuritic pain and shortness of breath. He could walk perhaps a block or two on level ground. He could not walk briskly. He had difficulty walking up stairs. He did not have a cough that was productive of phlegm. He did not have night sweats. Examination of the lungs revealed generally distant breath sounds with some basilare bilateral crackles. There was a thoracotomy scar, with removal of ribs on the right. The impression included history of pulmonary tuberculosis with reactivation in 1988, currently status post pneumothoraces at least two times on the right and rib resection, pleural stripping. The veteran had chronic anterior chest discomfort and dyspnea on exertion of more than one block. The examiner noted that the veteran has been and is unemployable. It was stated that the veteran had sequelae with regard to chronic chest discomfort and dyspnea on exertion as a result of his exposure as a fireman in service. The examiner also noted that the veteran worked in close proximity to heated asbestos covered pipes in service and that there was pleural plaque calcification consistent with asbestosis. In a July 1996 rating action, the RO granted service connection for asbestosis and combined it with the veteran's service connected pulmonary tuberculosis. The new evaluation for the veteran's service connected pulmonary tuberculosis was 60 percent, effective April 1991. The RO also continued to deny entitlement to a total disability rating based on a service-connected disability. At a hearing before an RO hearing officer in March 1997, the veteran testified that that the last time he worked was 8 years ago. He stated that at that time, he had a recurrence of tuberculosis and that he has not been able to work again because of his health. He stated that he has shortness of breath and that he tires easily because of his condition. The veteran was afforded another VA examination in July 1997. The examiner's diagnoses included pulmonary tuberculosis, apparently inactive, residual effects of lung decortication and thoracoplasty, and asbestosis. The examiner commented that the veteran's tuberculosis was apparently inactive since chemotherapy in the late 1980's, but due to the residual effects of the thoracoplasty and other factors, the veteran was disabled from any gainful employment. In a letter dated in February 1998, Dr. Lewis once again stated that the veteran suffered from severe chronic obstructive pulmonary disease and chronic lung disease due to asbestosis that he acquired in the military. It was his opinion that at the present time the veteran was totally disabled due to his conditions. II. Analysis At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In considering whether VA has fulfilled its duty to assist the veteran in the development of a well- grounded claim, the Board has noted the comments of the service representative regarding the inadequacy of the most recent VA examination. This examination, when considered along with the other evidence or record, provides a sufficient basis for the favorable determination reached, thus eliminating the need for another remand. In any event, the Board declines to further delay final adjudication of the veteran's appeal, which has been pending for many years. It is the established policy of 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. 38 C.F.R. § 4.16(b) (1999). A finding of total disability is appropriate "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. §§ 3.340(a)(1), 4.15 (1999). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a) (1999). . A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Before a total rating based upon individual unemployability may be granted, there must also be a determination that the appellant's service-connected disability is sufficient to preclude unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1999). The Board initially finds that the assigned disability rating of 60 percent for the veteran's service-connected pulmonary tuberculosis clearly meets the schedular criteria for consideration of a total disability rating as established in 38 C.F.R. § 4.16(a). Furthermore, having reviewed the evidence of record, especially the opinions and reports of examining physicians discussed above, the Board is of the opinion, resolving any doubt in favor of the veteran, that his service-connected disability is sufficiently incapacitating so as to preclude substantially gainful employment. This conclusion is supported by the medical evidence of record, including specific medical opinions to that effect. Accordingly, a total disability rating based upon individual unemployability will be granted. ORDER A total disability rating based upon individual unemployability is granted, subject to the controlling criteria applicable to the payment of monetary benefits. N. R. ROBIN Member, Board of Veterans' Appeals