BVA9506435 DOCKET NO. 93-13 088 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to individual unemployability for purposes of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Reynolds, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to April 1969. At the time of his death in April 1992, the veteran had a claim for individual unemployability pending before the St. Paul, Minnesota, Regional Office (RO). In a rating decision dated in October 1992, the RO denied the appellant's claim entitlement to individual unemployability for the purpose of accrued benefits. CONTENTIONS OF APPELLANT ON APPEAL The appellant and his representative contend that the veteran was totally disabled as a result of his service-connected disabilities and that accrued benefits should be awarded to him on the basis of the veteran's total service-connected disability during the year immediately preceding his death. DECISION OF THE BOARD The Board of Veterans' Appeals (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 appellant's claim for entitlement to individual unemployability for the purposes of accrued benefits. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran's service-connected disabilities consisted of post-traumatic stress disorder, evaluated as 50 percent disabling; and encephalitis with petit mal seizures, evaluated at 40 percent disabling, resulting in a combined evaluation of 70 percent. 3. At the time of the veteran's death, his service-connected disabilities were not of such severity as to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW 1. The criteria for a total disability rating on the basis of individual unemployability were not met for the year prior to the veteran's death. 38 U.S.C.A. §§ 1155, 5121 (West 1991); 38 C.F.R. § 4.16 (1994). 2. The criteria for accrued benefits based upon a total disability rating for the veteran during the last year of his life were not met. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.1000 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not alleged that any records of probative value that may be associated with his claims folder and which have already not been sought are available. The Board accordingly finds that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Total disability ratings 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. 38 C.F.R. § 4.16(a). As indicated above, the veteran's service-connected disabilities were rated as 70 percent disabling when considered on a combined bases. Since he was less than totally disabled under the schedular criteria, it accordingly must be shown that his service-connected disabilities, and these disabilities alone, precluded him from obtaining and maintaining substantially gainful employment. The Board is of the opinion that this has not been demonstrated. The veteran's application for increased compensation based on unemployability of April 1991 reflects that he was last employed in December 1988 as a desk clerk. However, clinical records from the VA Medical Center, Minneapolis, indicate in an entry dated in May 1991 that he worked 30 hours a week. Additionally, a report dated in October 1990 reveals that the veteran worked as a painter. An evaluation of the veteran conducted in September 1991, although indicating that the veteran was unemployed at that time, described the veteran as pleasant, cooperative, and affable. Further, this evaluation reveals that the veteran believed that his spells were unchanged, consisting of only a few seconds of brief lapses of attention and mild staggering. The veteran also indicated that he never lost contact and has not had a generalized seizure for many years. Therefore, in light of this moderate evaluation regarding his physical limitations, together with the evidence that he has actually worked, the Board is of the opinion that the veteran was not individually unemployable due to his service-connected disabilities. Accordingly, entitlement to a total rating based on individual unemployability due to service-connected disabilities for the purposes of accrued benefits is not warranted. ORDER A total rating based on individual unemployability due to service-connected disabilities are denied. LAWRENCE M. SULLIVAN 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.