Citation Nr: 0001261 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 93-26 493A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from October 1960 to October 1964 and from October 1967 to February 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine which, in part, denied a total rating based on individual unemployability. The veteran testified at a personal hearing in February 1994, and in August 1994 the hearing officer confirmed the denial. In January 1999, a videoconference hearing was held before the undersigned Board member. This case was previously before the Board in November 1996 and again in March 1999 when it was remanded for additional development. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. Service connection is in effect for the following: dysthymic disorder rated 30 percent disabling, metastatic papillary thyroid cancer with metastasis from the lymph nodes rated 10 percent disabling, tendonitis of the right wrist rated 10 percent disabling, residuals of contusion to the left elbow with bursitis and tenderness rated 10 percent disabling, residuals of a left shoulder injury with mild bursitis and tendonitis rated 10 percent disabling, carpal tunnel syndrome of the right and left hand rated 10 percent disabling each, hypertension rated 10 percent disabling, and several noncompensable disabilities including a left eye scar, a scar on the left shin and residuals of a left inguinal hernia repair. The combined schedular rating is 70 percent. 3. The veteran has completed two undergraduate college degrees and has occupational experience as a cashier at a department store where he is currently employed part time 16 hours a week; he was last employed full time in April 1991 as a field engineer in a shipyard. 4. A vocational rehabilitation assessment found that the veteran was not capable of holding full time or part time substantial employment. 5. The veteran is unemployable due to his service-connected disabilities. CONCLUSION OF LAW A total disability rating based on individual unemployability due to service-connected disabilities is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for a total rating based on individual unemployability is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Stanton v. Brown, 5 Vet. App. 563, 571 (1993) (where an appellant stated that he could no longer seek or maintain employment, he presented a well- grounded claim for a total disability rating). All relevant facts have been properly developed on remand, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). To establish a total disability rating based on individual unemployability due to service-connected disabilities, the evidence must show that the veteran is unable to obtain or retain substantially gainful employment because of service- connected disabilities. 38 C.F.R. §§ 3.340, 3.341 (1999). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (1999). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (1999). The applicable laws and regulations provide that a total rating for compensation may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a) (1999). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular, renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In this case, service connection is in effect for the following: dysthymic disorder rated 30 percent disabling, metastatic papillary thyroid cancer with metastasis from the lymph nodes rated 10 percent disabling, tendonitis of the right wrist rated 10 percent disabling, residuals of contusion to the left elbow with bursitis and tenderness rated 10 percent disabling, residuals of a left shoulder injury with mild bursitis and tendonitis rated 10 percent disabling, carpal tunnel syndrome of the right and left hand rated 10 percent disabling each, hypertension rated 10 percent disabling, and several noncompensable disabilities including a left eye scar, a scar on the left shin and residuals of a left inguinal hernia repair. The combined schedular rating is 70 percent. At this point, the Board notes that in the previous remand it had determined that the veteran did not meet either the criteria of having one service-connected disability of 60 percent disabling, or a combined rating of 70 percent with a single disability rated 40 percent. Upon further review of the record and the applicable regulation, the Board agrees with the contention of the veteran's representative that he does meet the latter of the above-listed alternate requirements, i.e., he has a combined 70 percent rating with a single disability rated, at least, 40 percent. This 40 percent single rating is computed (per 38 C.F.R. § 4.16(a)) using his five service-connected disabilities involving the upper extremities that combine to exceed 40 percent. These are: 1. Tendonitis of the right wrist rated 10 percent disabling; 2. Residuals of contusion to the left elbow with bursitis and tenderness rated 10 percent disabling; 3. Residuals of a left shoulder injury with mild bursitis and tendonitis rated 10 percent disabling; 4. Carpal tunnel syndrome of the right (major) hand rated 10 percent disabling; and 5. Carpal tunnel syndrome of the left (minor) hand rated 10 percent disabling. These disabilities combine to 41 percent. See 38 C.F.R. § 4.25(a). Adding the bilateral factor of 4.1 percent brings the single disability rating (for disabilities of the upper extremities) to 45 percent. See 38 C.F.R. § 4.26(a). As such, the minimum percentage requirements under 38 C.F.R. § 4.16(a) (1999) have been met. However, in addition to satisfying the percentage requirements, the evidence must show that the veteran is unemployable as a direct result of his service-connected disabilities. In Van Hoose v. Brown, 4 Vet. App. 361 (1993), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") noted that: For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such veteran. See 38 C.F.R. §§ 4.1, 4.15 (1992). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (1992). In the veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated in May 1993, he indicated that he had four years of college education, and last worked full time in 1991 at a shipyard, an occupation he held for approximately 4 months. On April 1991 VA examination it was noted that the veteran had thyroid cancer diagnosed in service. This was successfully treated by thyroidectomy but he developed hypothyroidism and carpal tunnel syndrome, related to his hypothyroidism. His hands now had pain and numbness, greater on the right and with use. The examiner noted that the veteran's hand complaints should resolve with the proper dose of Synthroid. He had a history of left inguinal hernia repair, noted by the examiner to be without residuals. His elbow had been injured during service and was now slightly tender. His left shoulder had been injured twice, and now he only had occasional aching on movement. He had tendonitis in the right wrist which also ached only occasionally. His hypertension was reported to be under fair control with medication. In a July 1992 letter from a VA physician, the veteran was noted to have bilateral carpal tunnel syndrome of his hands. This condition was described as precluding employment requiring fine motor use of the hands. Another letter also dated in July 1992 from one of the physicians treating him for thyroid cancer indicated that his carpal tunnel syndrome was severe and "caused him much difficulty in terms of working." Based in part on the above medical evidence and opinions, the veteran was awarded disability benefits from the Social Security Administration (SSA) in a November 1992 determination. The veteran provided testimony in a personal hearing before a hearing officer at the RO in February 1994. He stated that he was currently enrolled in a fine arts program at the University of Southern Maine, working on his bachelor of Fine Arts degree with the intent to teach. He stated that he wore braces on his wrists because of the carpal tunnel syndrome but took them off during drawing class because he had great difficulty manipulating charcoal or pencil with them on. This would cause his hands to hurt a great deal. He also expressed some doubt about his ability to obtain gainful employment teaching art in his local area of Maine. In November 1996, the Board remanded the veteran's claim for additional development to include VA examinations and opinions regarding the veteran's employability. The veteran was provided a general VA compensation and pension examination in February 1997. His thyroid cancer was noted to be without any recurrence. With regard to his hands, he complained of occasional right hand numbness and an inability to carry heavy objects for prolonged periods of time. He described wearing wrist splints intermittently which did seem to cause some improvement in his symptoms. Because of his shoulder, he was unable to tolerate any overhead work. In March 1997, the veteran was provided a post-traumatic stress disorder (PTSD) examination, apparently in response to erroneous remand instructions which requested an evaluation of his PTSD. Although the examiner noted that the veteran did not appear to have PTSD, he did note the following: His condition more appropriately would be described as an adjustment disorder with depressed mood, specifically in response to the changed physical status and limitations as the long-term consequences of his thyroid cancer. He has marked distress about his physical conditions and significant impairment in social/occupational/academic functioning. Regarding the question of the degree to which the veteran's psychiatric disorder affects his occupational and social functioning, the examiner noted that there was impairment due to mild symptoms only during periods of significant stress. He added that "it should be noted that the stress is ongoing and chronic because of the chronic nature of his physical problems, so these symptoms are not transient, but they do not cause inability to perform occupational tasks." On further evaluation of the veteran's medical condition in June 1997, a VA examiner stated that the veteran would probably not be able to tolerate a manual labor type job and would require a sedentary job. In a January 1999 videoconference hearing, the veteran testified that despite two undergraduate degrees, he had been unable to obtain employment due to his service-connected disabilities, other than working 16 hours per week at Wal- Mart. He also reported that a "fifth year" extended teachers' program was available at the University of Southern Maine, where he received his second degree in fine arts. However, he was unable to attend it because of two knee operations. Subsequently, he was disenrolled in the vocational rehabilitation program. In March 1999, the Board again remanded the claim, partly to obtain the veteran's missing vocational rehabilitation file, and partly for the RO to consider new issues raised by the veteran which were considered inextricably intertwined with the issue of individual unemployability. In August 1999, the RO denied service connection for these additional issues. The veteran's vocational rehabilitation folder was associated with the claims file. A note dated in October 1997 shows that the veteran would not be attending school starting the following fall because he was not physically able. He was informed that VA would be discontinuing his case under Chapter 31 due to his physical limitations. The case manager noted that it was apparent that the veteran was not "physically capable of holding full time or even part time substantial employment." The Board finds that the veteran is unemployable, relying principally on the opinion of his vocational rehabilitation case manager noted above. While it is apparent that the veteran also suffers from nonservice connected disabilities, which were considered along with his service-connected disabilities in the determination of the SSA that he was unemployable, it is also clear that his primary disability is in working with his hands. As his vocational goals have been directed towards a career in art, and he is significantly impaired in the use of his hands and upper extremities due to his service-connected disabilities, the Board concludes that he is effectively precluded from seeking employment in this field due to his service-connected disabilities and any other employment he would obtain would be no more than marginal employment. It is impossible to say with absolute certainty that the service-connected disabilities alone would prevent the veteran from securing or following a gainful occupation in light of his education and experience. However, the Board finds that the evidence for and against the claim is in equipoise and, in consideration of the principle of reasonable doubt, the veteran prevails. Accordingly, a total rating based on individual unemployability is warranted in this case. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102, 3.321(b), 4.16 (1999). Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A total disability rating based on individual unemployability due to service connected disabilities is granted, subject to the regulations governing payment of monetary awards. GEORGE R. SENYK Member, Board of Veterans' Appeals