BVA9503777 DOCKET NO. 92-02 187 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION The veteran served on active duty from August 1968 to September 1970. This appeal arose from a rating decision of September 1990 by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In July 1993 the Board of Veterans' Appeals (the Board) remanded this case to the RO for further evidentiary development. The case was returned to the Board in November 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service-connected disabilities render him unable 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 veteran's claim. FINDINGS OF FACT 1. The veteran is 47 years of age. He graduated from high school and attended college and technical school. He has work experience as a television and automobile repairman, taxi driver, farm worker and cleaning person. He last worked in 1987. 2. Service connection is in effect for: A postoperative abdominal scar, status post resections of the intestine, evaluated as 20 percent disabling, and residuals of multiple shell fragment wounds to the abdomen, evaluated as noncompensably disabling; bilateral weak feet, evaluated as 10 percent disabling; neuropathy of the left ulnar nerve, evaluated as 10 percent disabling; a scar on the right lower extremity, evaluated as 10 percent disabling; back strain, evaluated at noncompensably disabling; and post-traumatic stress disorder (PTSD), evaluated as 50 percent disabling, with a combined disability rating of 70 percent. 3. The veteran's service-connected disabilities would not preclude substantially gainful employment. CONCLUSION OF LAW The veteran is not unemployable solely by reason of service- connected disabilities. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 3.655, 4.16 (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(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed to the extent allowed by the veteran's cooperation. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). 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. Total disability ratings for compensation 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 disabilities. 38 C.F.R. § 4.16(a). The veteran has both physical and mental disorders and the extent of those disabilities will be discussed below. I. Physical Disabilities The medical information obtained at the most recent VA examinations of each of the veteran's physical disabilities may be briefly summarized. With regard to neuropathy of the left ulnar nerve, at a VA surgical/orthopedic examination in May 1976, there was slight numbness to pinprick in the palm and fingers of the left hand. The hand grip was considerably weakened. Diagnoses included neuropathy, left ulnar nerve. With regard to the abdomen and gastrointestinal tract, at a VA surgical examination in April 1980, the veteran presented with a history of shrapnel wounds to the abdomen which required two resections of the bowel. He complained of diarrhea following heavy exertion, exposure to cold or increased nervous tension. Diarrhea was often accompanied by abdominal cramps. As advised by a private physician, he had restricted his intake of milk and sugar, but this did not completely relieve his symptoms. He was taking medication to control the diarrhea and cramps. On examination two well-healed scars were observed on the abdomen. No other abnormalities of the abdominal area were found. The impression was status post shrapnel wounds to the intestine, with diarrhea. The examiner commented that the veteran gave a perfect history of "nervous bowel syndrome." If he avoided exposure to cold, overexertion and stressful situations, the syndrome could be controlled without the use of medication. With regard to the feet, at a VA examination in September 1978, the veteran complained of pain in his left arch when walking. On examination both arches were depressed. There were no calluses or edema of the feet. Diagnoses included weak feet. With reference to the back, at a VA orthopedic examination in April 1980, the veteran complained of lower back pain. There was no radiation of the pain to the lower extremities or numbness, tingling or weakness of the lower extremities. X-rays of the lumbosacral spine showed normal disc spaces and bony alignment; a transitional L5 vertebra was noted. On examination there was no tenderness over the lumbosacral spine or sciatic notches. There was no paraspinal muscle spasm. Straight leg raising was normal. Knee jerks, ankle jerks and Babinski reflexes were intact. Sensation to pinprick and soft touch was normal. Lower extremity muscle strength was normal. Diagnoses included low back strain. With reference to a scar on the right lower extremity, at a VA surgical examination in October 1982 the veteran presented with a history of a shrapnel wound to the right lower leg. He complained that a scar at the wound site was sensitive and that he had paresthesia which radiated to the right thigh and right hip area, with occasional pain. On examination a 5- by 1 1/2-centimeter scar on the medial aspect of the right lower leg was observed. The scar was not depressed or fixed to deep tissues; it was atrophic and scaly. The scar was tender to pressure, which produced paresthesias proximal to the scar for a few centimeters. Range of motion of the right lower extremity was normal. There was no neurological deficit distal to the scar. X-rays showed no abnormality of the right lower leg; there were no retained metallic fragments. The impression was status post shrapnel wound to the right lower leg, manifested by hyperesthesia and paresthesia in the area of the scar. The examiner commented that the veteran had signs and symptoms of sensory nerve irritation, probably due to scar tissue in the depths of the wound, which would be permanent. Although his physical disabilities might preclude hard manual labor, the Board finds that light manual labor or sedentary employment would not be precluded by his physical limitations. Because up-to-date information about his physical status would have been helpful in the adjudication of his appeal, the Board remanded this case to, inter alia, provide the veteran with an opportunity to undergo VA orthopedic and neurological examinations. Although he was notified when and where to report for such examinations, he failed to report. Applicable regulations provide that, when entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, appropriate action shall be taken. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, and the like. When a claimant fails to report for an examination in conjunction with a claim for increased compensation, the claim shall be denied. 38 C.F.R. § 3.655(a)(b). The Board will not deny the veteran's individual unemployability claim on the basis that he failed to report for the required orthopedic and neurological examinations. However, the Board does find that, upon consideration of the most recent medical information, some of it from years ago, there remains insufficient evidence that the veteran's physical disabilities are so severe as to preclude him from working. 38 C.F.R. §§ 3.340, 3.341, 4.16. II. Psychiatric Disability While this case was in remand status, the veteran did report for a VA psychiatric examination in September 1993. At that examination he complained that his mind would go blank if something happened to him rapidly and he would become upset at noises and pictures, perhaps describing a startle reaction. He stated that he was bothered by people and their stupidity; he was impatient with people and did not like to relate to people who steal, lie and are devious. He had received the diagnosis of PTSD several years earlier. His sleep was disturbed, but if he would eat ice cream and pie, he could sleep for eight hours straight. He had not been dreaming recently. He claimed that PTSD symptoms had existed ever since he was in Vietnam in 1968. He was not receiving any psychiatric treatment. He had talked to a doctor about his nerves two years earlier. When asked if he dreamed about Vietnam, he stated that he blocked it out. During the day, he was so busy that he did not think about Vietnam. He had never been hospitalized for psychiatric treatment. He had been wounded by shrapnel in combat in Vietnam after a booby trap exploded and he received the Purple Heart Medal. He had graduated from high school and taken college courses. Also, he had been a student at a technical school for almost two years. He had performed various jobs including television repair, working on cranberry bogs, driving a cab and doing cleaning work. He admitted to use of marihuana and implied that he had recently used cocaine. On mental status examination the veteran was talkative and somewhat digressive. He smiled and laughed, more or less appropriately. He seemed restless and had mild pressure to his speech. He described himself as an individual without emotions. He denied suicidal ideation or hallucinations, but he implied that he had certain powers of telepathy. He was well-oriented. Recent and remote memory were normal. His fund of general information was average. He spent his time with friends, working on cars, repairing televisions and VCRs, and taking care of his tropical fish and plants. Diagnostic impressions included anxiety disorder, apparent psychoactive substance abuse (cocaine) and PTSD, with minimal symptoms, and rule out bipolar/cyclothymic disorder. The Axis II diagnosis was schizotypal personality disorder, which far and away predominated in the veteran's psychopathology. The Board notes that the veteran has never been hospitalized for psychiatric treatment and has not been receiving any psychiatric treatment. He does not take psychoactive medication and does not see a therapist. The examiner found his PTSD symptoms to be "minimal", and his anxiety level is not incapacitating. The examiner was of the opinion that a personality disorder, for which service connection is not in effect, accounts for most of his psychopathology. Therefore the Board finds that his psychiatric status would not, by itself or in conjunction with his physical disabilities, preclude some form of substantially gainful employment. (Finally, the Board notes that the record reflects that the veteran has nonservice-connected arteriosclerotic heart disease. He had a myocardial infarction in November 1981 at age 34 years.) For all of the reasons stated above, entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is not established. 38 C.F.R. § 3.340, 3.341, 4.16. While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER A total disability evaluation based on individual unemployability due to service-connected disabilities is denied. ALBERT D. TUTERA 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.