BVA9503321 DOCKET NO. 93-06 511 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for the postoperative residuals of rheumatic heart disease with aortic insufficiency, currently rated 30 percent disabling. 2. Entitlement to a total disability rating on the basis of individual unemployability due to the service-connected disability. WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant is a veteran of honorable military service from June 1941 to August 1942. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating determinations by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 1992, a hearing was held at the RO before a Hearing Officer at which the appellant and his wife appeared and explained their contentions. A transcript of that hearing is of record. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has been unable to return to his part-time employment as a roofing salesman since recovering from his January 1991 cardiac surgery. He feels that a disability rating of 60 percent would be sufficient to replace the loss of income due to his inability to work. 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 preponderance of the evidence is against the claims seeking a disability rating in excess of 30 percent for the postoperative residuals of rheumatic heart disease with aortic insufficiency or a total disability rating based upon individual unemployability. FINDINGS OF FACT 1. The appellant is service-connected for rheumatic heart disease with aortic insufficiency. There are no other service- connected disabilities. 2. The appellant underwent a two-vessel coronary artery bypass graft and an aortic valve replacement in January 1991. 3. A temporary total disability rating was in effect from November 1990 through February 1992 under the provisions of 38 C.F.R. §§ 3.400, 4.30 and Part 4, Diagnostic Codes 7000-7016 (1994). Effective March 1, 1992, a 30 percent rating was assigned under Diagnostic Codes 7000-7005. 4. The appellant reportedly has a high school education and work experience as a manager for General Motors until his retirement in 1985. He subsequently worked on a part-time basis as a roofing salesman until 1990. 5. The appellant reports fatigue; he is not currently experiencing chest pains. The postoperative scars are well- healed. 6. There is no current evidence of a murmur, thrill, or friction rub; the heart exhibits a regular rhythm; systolic blood pressure is not elevated; and the heart is not enlarged. 7. The service-connected disability is not sufficient to preclude all forms of substantially gainful employment consistent with the appellant's education and employment background. CONCLUSIONS OF LAW 1. The requirements for a rating in excess of 30 percent for the postoperative residuals of rheumatic heart disease with aortic insufficiency have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321(b) and Part 4, including Codes 7000-7005 (1994). 2. The requirements for a total disability rating on the basis of individual unemployability due to the service-connected disability have not been met. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, and Part 4 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that we have found the appellant's claims to be well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). In this connection, although the appellant has mainly advanced contentions concerning his need for additional income, we have interpreted his contentions concerning his entitlement to a 60 percent rating and his inability to work as sufficient to establish well-grounded claims. We are also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required in order to comply with VA's duty to assist him in the development of his claims as mandated by 38 U.S.C.A. § 5107(a). Background The appellant was born in February 1919, and he is now 76 years old. He has completed a high school education. The appellant entered active military service in June 1941. In July 1942, he was hospitalized for the treatment of valvular heart disease and aortic insufficiency. Entitlement to service connection has been established for the residuals of rheumatic heart disease with aortic insufficiency. This disability had been rated 10 percent disabling from September 1942. In January 1991, the appellant underwent a two-vessel coronary artery bypass graft and an aortic valve replacement following the onset of substernal chest pains and positional dizziness approximately six weeks earlier. Beginning in November 1990 with the onset of symptoms including dizziness and chest pain, a 100 percent rating was placed in effect; this was later extended through February 1992 under the provisions of Diagnostic Codes 7000-7016 of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (1994). Effective March 1, 1992, a 30 percent rating was assigned under Diagnostic Codes 7000-7005 of the Rating Schedule. Increased Rating for Postoperative Residuals of Rheumatic Heart Disease with Aortic Insufficiency Disability evaluations are determined by the application of the Rating Schedule. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1994). The Rating Schedule provides for a minimum rating of 30 percent one year after heart valve replacement or coronary artery bypass surgery. 38 C.F.R. Part 4, Codes 7016, 7017. That 30 percent rating contemplates the existence of a diastolic murmur with characteristic electrocardiogram (EKG) manifestations or a definitely enlarged heart. 38 C.F.R. Part 4, Code 7000. Also contemplated within that 30 percent rating is a history of substantiated angina attacks, with ordinary manual labor feasible. 38 C.F.R. Part 4, Code 7005. The next higher rating of 60 percent requires that the heart be definitely enlarged; severe dyspnea on exertion, elevation of systolic blood pressure, or such arrhythmias as paroxysmal auricular fibrillation or flutter or paroxysmal tachycardia; more than light manual labor is precluded. 38 C.F.R. Part 4, Code 7000. A 60 percent rating would also be appropriate following a typical history of acute coronary occlusion or thrombosis, or with a history of substantiated repeated anginal attacks, where more than light manual labor is not feasible. 38 C.F.R. Part 4, Code 7005. In the present case, VA outpatient treatment records dating from February 1991 to November 1992 reveal that the appellant has made a very satisfactory recovery from his surgery in January 1991. He is repeatedly described as stable and doing well, with no complaints of chest pain or shortness of breath. He is being treated for anemia and is receiving anti-coagulant therapy. No episodes of acute coronary occlusion or thrombosis are reflected in the postsurgical VA outpatient treatment records. Likewise, the appellant's blood pressure was measured as 110/70 in October 1992. On an official VA medical examination of the appellant in January 1992, the appellant complained of becoming easily fatigued, although it was reported that he walked one mile several days each week at a slow pace. He was not taking nitroglycerin and did not complain of chest pains. The examining physician reported that the surgical scar was well-healed and that the heart rhythm was regular. There was no evidence of a murmur, and no thrill or friction rub was heard. The appellant's blood pressure on that examination was 120/68, and X-ray studies of the heart disclosed that it was not enlarged. The diagnosis reported on that examination of the appellant was: arteriosclerotic and rheumatic heart disease, coronary arteriosclerosis, aortic insufficiency, postoperative status aortic valve replacement, two vessel coronary artery bypass procedure, compensated, Class II B (symptoms only during the more strenuous grades of daily activity). At the November 1992 hearing, the appellant confirmed that he was not experiencing chest pains; but he indicated that his chest gets congested, that he has some dizziness, and that his shoulder and chest muscles get tired after physical exertion. Even so, however, the medical evidence of record does not reflect the presence of any of the signs or symptoms necessary to support a 60 percent rating. Thus, the appellant's blood pressure is normal, the heart is not enlarged, the heart rhythm is regular, there are no anginal attacks, and the appellant is reported to be capable of more than just light manual labor. Under these circumstances, the current 30 percent rating is affirmed on appeal. There is no indication in the record that the schedular evaluation is inadequate to evaluate the impairment of the appellant's earning capacity due to the disability at issue, and it does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedule of standards. Thus, the provisions of 38 C.F.R. § 3.321 relating to extraschedular evaluations are not applicable here. We have also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4 , whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We have found no section that provides a basis upon which to assign a higher disability evaluation. Total Rating based on Unemployability For VA purposes, 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. § 3.340. For compensation purposes, if the service-connected disability or disabilities are ratable under the Rating Schedule as less than 100 percent disabling, it must be determined that the service- connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. The appellant currently presents no symptoms not contemplated by the 30 percent schedular rating currently in effect for the sole service-connected disability, and it would therefore appear that the average man with the appellant's service-connected disability would not be unemployable. Moreover, neither the appellant nor his representative has advanced any arguments relating to the "average man" unemployability standard. Total disability ratings for compensation may also 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 the service-connected disabilities. 38 C.F.R. § 4.16(a). This contemplates a more subjective test than the "average man" criteria, focusing more on the individual claimant's situation. However, in view of the appellant's sole 30 percent schedular rating, he fails to meet the threshold requirements for consideration of individual unemployability under 38 C.F.R. § 4.16(a). Finally, where a veteran is felt to be unemployable by reason of service-connected disabilities but fails to meet the percentage requirements of 38 C.F.R. § 4.16(a), an RO can submit the case to the Director of the Compensation and Pension Service at the VA Central Office in Washington, D.C., for extra-schedular consideration. 38 C.F.R. § 4.16(b). The Hearing Officer at the November 1992 hearing considered and rejected this option as inappropriate in the present case, and that determination is affirmed on appeal. Furthermore, the evidence establishes that the appellant is not precluded by his service-connected disability from securing or following a substantially gainful occupation. Following his World War II military service, the appellant eventually went to work for General Motors Corporation in some sort of managerial capacity. He retired from that job in 1985 at approximately the age of 65. Subsequently, he worked on a part- time basis as a roofing salesman until 1990 when his increasing cardiac symptoms and age forced him to quit that employment. He has testified, however, that he is currently able to do some carpentry and other odd jobs. Moreover, with his high school education and managerial background, it would appear that the appellant is qualified for more sedentary forms of employment than he prefers to pursue. In this connection, the Board has noted the appellant's complaints concerning the deterioration in his handwriting; however, there is no medical evidence to link this problem to the service-connected cardiac disability exclusively. The medical evidence, however, does show that despite symptoms including fatigue, the consequences of the service-connected cardiac disability are not sufficient to preclude all forms of substantially gainful employment consistent with the appellant's education and employment background. (CONTINUED ON NEXT PAGE) ORDER The appeal is denied. NANCY I. PHILLIPS 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.