BVA9503606 DOCKET NO. 92-56 139 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Whether there was clear and unmistakable error in pre-January 1989 rating decisions or decisions of the Board of Veterans' Appeals that denied entitlement to a total rating based on unemployability due to service-connected disabilities. 2. Whether there was clear and unmistakable error in the January 1989 rating decision that denied entitlement to a total rating based on unemployability due to service-connected disabilities. 3. Entitlement to an effective date earlier than November 1, 1990, for an award of total disability compensation benefits based on unemployability due to service-connected disabilities. ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from July 1942 to October 1945. The issue of entitlement to an effective date earlier than November 1, 1990, for an award of total disability compensation benefits based on unemployability due to service-connected disabilities came to the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In a September 1992 decision, the Board denied the earlier effective date claim, and the veteran appealed to the United States Court of Veterans Appeals (Court). In a June 2, 1993, order, the Court vacated the Board's September 1992 decision and remanded the case to the Board for further development. [citation redacted]. The case was returned to the Board in July 1993. In October 1993, the Board remanded the case to the RO for further development and clarification as to whether the veteran was raising the issue of clear and unmistakable error in prior unappealed rating decisions and/or prior Board decisions that denied entitlement to a total rating based on unemployability due to service-connected disabilities. While the case was at the RO, the veteran confirmed that he is claiming clear and unmistakable error in prior decisions denying his total rating claims. The RO adjudicated the issue in a January 1994 rating decision and, at the same time, confirmed its prior denial of entitlement to an effective date earlier than November 1, 1990, for an award of total disability compensation benefits based on unemployability due to service-connected disabilities. The RO addressed both issues in a January 1994 Supplemental Statement of the Case. Thereafter, the veteran perfected his appeal concerning the presence of clear and unmistakable error in prior decisions that denied his total rating claims and continued his appeal on the earlier effective date issue. The case was returned to the Board in late January 1994. In a March 1994 letter, Counsel to the Chairman of the Board notified the veteran that consideration of claims involving allegations of clear and unmistakable error in prior Board decisions under 38 C.F.R. § 3.105(a) were being stayed as a result of a memorandum decision issued by the Court in Smith v. Principi, 3 Vet.App. 378 (1992). The Court's decision was, at that time, being appealed to the United States Court of Appeals for the Federal Circuit. In a January 1995 letter, Counsel to the Chairman informed the veteran that the Federal Circuit had issued its decision in Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994) and that the stay on cases involving allegations of clear and unmistakable error in prior Board decisions had been lifted as announced in Chairman's Memorandum No. 01-95-02 of January 25, 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has been unable to work since February 1969 because of his service-connected recurrent small bowel obstruction, status post small bowel resection and cholecystectomy. He states that because of his service-connected disability he has had no control over his bowel movements and as a result missed work so much that he could not keep a job. He has also stated that because of his service-connected disability he could not pass employment physical examinations, and when prospective employers learned of his health problems and numerous hospitalizations, they would not consider him for a job. The veteran points out that since 1969 he has been hospitalized many, many times because of his service-connected disability. He claims the RO and the Board have made clear and unmistakable errors in reviewing the medical evidence, the severity of his service-connected disabilities and their impact on his ability 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 files. 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 veteran's claims of clear and unmistakable error in pre-January 1989 rating decisions or decisions of the Board that denied entitlement to a total rating based on unemployability due to service-connected disabilities fail as a matter of law. It is also the decision of the Board that the January 1989 rating decision that denied entitlement to a total rating based on unemployability due to service-connected disabilities was not clearly and unmistakably erroneous. Finally, it is the decision of the Board that the preponderance of the evidence is against the award of an effective date earlier than November 1, 1990, for total disability compensation benefits based on unemployability due to service-connected disabilities. FINDINGS OF FACT 1. The RO denied entitlement to a total rating based on unemployability due to service-connected disabilities in a November 1980 rating decision. The veteran appealed, and the RO confirmed and continued its denial in rating decisions dated in March 1982, August 1982 and May 1983. The RO's denial was affirmed by the Board in an October 1983 decision. 2. The RO denied entitlement to a total rating based on unemployability due to service-connected disabilities in a November 1985 rating decision. The veteran appealed, and the RO's denial was affirmed by the Board in a July 1987 decision. 3. The RO denied entitlement to a total rating based on unemployability due to service-connected disabilities in an October 1987 rating decision. The veteran appealed, and the RO confirmed and continued its denial in a January 1988 rating decision. The RO's denial was affirmed by the Board in an August 1988 decision. 4. The RO denied entitlement to a total rating based on unemployability due to service-connected disabilities in a January 1989 rating decision. That decision was adequately supported by the evidence then of record, and the veteran did not timely appeal. 5. The veteran is not shown to have been rendered unemployable due to service-connected disabilities prior to his hospital admission on May 18, 1990. CONCLUSIONS OF LAW 1. The November 1980, March 1982, August 1982 and May 1983 rating decisions denying entitlement to a total rating based on unemployability due to service-connected disabilities were subsumed by the October 1983 Board decision. 38 C.F.R. § 20.1104 (1993). 2. The November 1985 rating decision denying entitlement to a total rating based on unemployability due to service-connected disabilities was subsumed by the July 1987 Board decision. 38 C.F.R. § 20.1104 (1993). 3. The October 1987 and January 1988 rating decisions denying entitlement to a total rating based on unemployability due to service-connected disabilities were subsumed by the August 1988 Board decision. 38 C.F.R. § 20.1104 (1993). 4. No claim of clear and unmistakable error under 38 C.F.R. § 3.105(a) exists as a matter of law with respect to the November 1980, March 1982, August 1982, May 1983, November 1985, October 1987 and January 1988 rating decisions denying entitlement to a total rating based on unemployability due to service-connected disabilities. Duran v. Brown, No. 93-388 (U.S. Vet. App. Dec. 13, 1994). 5. The October 1983, July 1987, and August 1988 Board decisions denying entitlement to a total rating based on unemployability due to service-connected disabilities are final and not subject to collateral review for clear and unmistakable error under 38 C.F.R. § 3.105(a). 38 U.S.C.A. 7104 (West 1991); Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). 6. The January 1989 rating decision denying entitlement to a total rating based on unemployability due to service-connected disabilities was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105(a) (1993). 7. The requirements for an effective date earlier than November 1, 1990, for the assignment of a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. 5110 (West 1991); 38 C.F.R. § 3.400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he has been unable to work since February 1969 because of his service-connected recurrent small bowel obstruction, status post small bowel resection and cholecystectomy. He claims that rating decisions and Board decisions that denied entitlement to a total rating based on unemployability due to service-connected disabilities are clearly and unmistakable erroneous because they did not consider the impact of the severity of his disability, including his inability to control his bowel movements, and the impact of his many periods of hospitalization on his ability to obtain or keep a job. Review of the file shows that the RO in Boston, Massachusetts, first denied entitlement to a total rating based on unemployability in a November 1980 rating decision. The veteran appealed the decision, and the RO confirmed and continued its denial in rating decisions dated in March 1982, August 1982 and May 1983. The RO's denial was affirmed by the Board in an October 1983 decision. In October 1985, the veteran again claimed entitlement to a total rating, and the RO denied the claim in a November 1985 rating decision; the veteran appealed. The denial was affirmed by the Board in a July 1987 decision. The RO denied a total rating based on unemployability due to service-connected disabilities in an October 1987 rating decision. Again the veteran appealed. The RO confirmed and continued the denial in a January 1988 rating decision. The Board affirmed the RO's denial in an August 1988 decision. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations which are final and binding, including decisions of service connection, degree of disability and other issues will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. In Smith v. Brown, 35 F.3d 1516 (1994), the United States Court of Appeals for the Federal Circuit held that otherwise final decisions of the Board are not subject to collateral review for clear and unmistakable error under 38 C.F.R. § 3.105(a). With exceptions pertaining to cases involving insurance claims and certain other matters not relevant to this case, unless the Chairman of the Board orders reconsideration, all Board decisions are final on the date stamped on the face of the decision, as are decisions on reconsideration. 38 C.F.R. § 20.1100 (1993). As the Chairman of the Board has not ordered reconsideration of any of the Board decisions at issue, that is, the October 1983, July 1987, and August 1988 Board decisions that denied entitlement to a total rating based on unemployability due to service-connected disabilities, all are final, and, under Smith none is subject to collateral review for clear and unmistakable error under 38 C.F.R. § 3.105(a). In addition to claiming clear and unmistakable error in prior Board decisions, the veteran has claimed clear and unmistakable error in pre-January 1989 rating decisions in which the RO, the agency of original jurisdiction, denied his total rating claims. As outlined above, each of those rating decisions was affirmed by one of the three Board decisions in October 1983, July 1987 or August 1988. When a determination of the agency of original jurisdiction, in this case a RO, is affirmed by the Board, such determination is subsumed by the final appellate decision. 38 C.F.R. § 20.1104. The Court has held that where an agency of original jurisdiction decision was appealed to and affirmed by the Board and thus subsumed by the Board's decision, no claim of clear and unmistakable error under 38 C.F.R. § 3.105(a) exists as a matter of law with respect to that agency of original jurisdiction decision. Duran v. Brown, No. 93-388 (U.S. Vet. App. Dec. 13, 1994). Under the circumstances, the veteran's claim of clear and unmistakable error in pre-January 1989 rating decisions and Board decisions that denied entitlement to a total rating based on unemployability due to service-connected disabilities must fail as a matter of law. After Smith, a veteran may still assert a claim of clear and unmistakable error under 38 C.F.R. § 3.105(a) in a prior, unappealed RO rating decision. The RO did deny entitlement to a total rating based on unemployability due to service connected disabilities in a January 1989 rating decision by indicating that the evidence warranted no change from the prior denials. The RO notified the veteran of this decision by letter, and the veteran did not file a Notice of Disagreement within the following year. The rating decision is, therefore, a prior unappealed rating decision which may be reviewed for clear and unmistakable error under 38 C.F.R. § 3.105(a). By way of background, the evidence in this case shows that the RO granted service connection for cholecystopathy in a 1949 rating action and assigned a 10 percent rating effective from April 1949. The 10 percent rating was continued until 1970 when the veteran underwent a cholecystectomy and was awarded a temporary total rating for convalescence after which the 10 percent rating was reassigned. Later, the RO increased the rating to 30 percent effective from June 1977 describing the veteran's service- connected disability as postoperative cholecystectomy with bowel obstruction due to adhesions. In a March 1980 rating decision, the RO noted that medical evidence indicated increased severity in the veteran's service-connected disability requiring frequent outpatient treatment and hospitalization and assigned a 50 percent rating effective from December 1978 with a temporary total rating for convalescence from May to September 1979, followed by return to the 50 percent pre-hospitalization rating. Subsequent rating decisions show that the veteran was awarded a temporary total rating for various periods of hospitalization for treatment of recurrent small bowel obstructions at various times during the 1980s. As was noted earlier, claims for a total rating based on unemployability due to service-connected disabilities were denied by the RO on several occasions and by the Board in October 1983 and July 1987. However, in its July 1987 decision, the Board noted that under the VA Rating Schedule for Disabilities there was no basis for a rating greater than 50 percent for the veteran's service-connected gastrointestinal disability, but that under the provisions of 38 C.F.R. § 3.321(b)(1) a 60 percent rating was warranted in light of numerous periods of hospitalization for relief of recurrent bowel obstructions. In September 1987, the veteran again claimed entitlement to a total rating based on unemployability due to service connected disabilities, and, as outlined above, the claim was denied by RO, appealed to Board, and denied by the Board in its August 1988 decision. At the time of the Board's August 1988 decision, the record included a photocopy of a VA hospital discharge summary showing the veteran was hospitalized from October 5 to October 15, 1987, for observation and workup of syncope, having reported fainting 2 days prior to admission and on the day of admission. The diagnoses reported on the hospital summary were: syncope; coronary artery disease; hypertension; adult onset diabetes mellitus; reflux esophagitis; status post cholecystectomy and appendectomy; history of small bowel obstruction, 3/87; status post penile implant; and history of seizure disorder. Under discharge status it was reported that the veteran was "fully employable". Spaces on the form for diagnostic codes, operation/procedures codes, type of release, inpatient days, absence days and signature of approving physician/dentist were blank. A date stamp on the document shows October 21, 1987, as its date of receipt at the RO. In an October 6, 1988, letter, the VA Medical Administration Service forwarded a "corrected copy" of the October 1987 VA hospital discharge summary to the RO. It was this document that the RO considered in its unappealed January 1989 rating decision continuing the denial of a total rating based on unemployability due to service-connected disabilities. The copy of the discharge summary furnished to the RO in October 1988 differs from the photocopy considered by the Board in August 1988 in that it includes entries in the space for diagnostic codes, and entry in the space for operation/procedures code, the entry "Regular" in the space for type of release, "10" in the space for inpatient days, "0" in the space for absence days and a signature in the space for signature of approving physician/dentist. In addition, under discharge status it is stated that the veteran "is fully unemployable" rather than fully employable. The "corrected copy" also includes a stamp stating "MED. INFO. SEC. COMPLETED BY _____ ON ______". Initials appear on the line following "BY", and "OCT" followed by illegible marks appears on the line following "ON". The Board has obtained the folder containing the veteran's VA hospital records dated in 1987. It includes the "original" (as opposed to a photocopy) of the hospital discharge summary in question and matches the "corrected copy" furnished to the RO by the Medical Administration Service in October 1988. The date stamp is legible and reads "OCT 30 1987". Comparison of the records satisfies the Board as to the authenticity of the "corrected copy" and that it represents the final version of the October 1987 VA hospital discharge summary. The question now is whether the January 1989 rating decision that denied the veteran's total rating claim based on this document was clearly and unmistakably erroneous. The Board notes that clear and unmistakable error is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet.App. 40, 43 (1993). As outlined above, the VA hospital discharge summary considered by the RO shows that the veteran was admitted for observation and workup of syncope. Under discharge status it was stated that the veteran was "fully unemployable". However, this statement is no way linked to the veteran's service-connected recurrent small bowel obstruction, status post small bowel resection and cholecystectomy, and the summary does not indicate complaints or treatment of those disabilities during the October 1987 hospitalization. Those conditions are listed among many other diagnoses for disabilities for which service connection is not in effect including syncope, coronary artery disease, chronic obstructive pulmonary disease, hypertension, adult onset diabetes mellitus, reflux esophagitis and history of seizure disorder. Further, from the list of diagnoses it could be inferred that the most recent episode involving small bowel obstruction had been some seven months earlier in March 1987. The Board finds that the January 1989 rating decision denying a total rating based on unemployability due to service-connected disabilities was adequately supported by the evidence then of record and concludes that the decision was not clearly and unmistakably erroneous. The remaining issue to be considered by the Board is entitlement to an effective date earlier than November 1, 1990, for an award of total disability compensation benefits based on unemployability due to service-connected disabilities. In Servello v. Derwinski, 3 Vet.App. 196, 198 (1992), the Court addressed the issue of entitlement to an earlier effective date in a total rating claim and pointed out that the applicable statutory and regulatory provisions, fairly construed, require that the Board look to all communications in the file that may be interpreted as applications or claims, formal and informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which", within the year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); see 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet.App. 129, 134 (1992). The Court also pointed out that under 38 C.F.R. § 3.155(a), an informal claim may, in some circumstances, be considered the date of a claim, and there is no requirement that an informal claim specifically identify the benefit sought. Moreover, 38 C.F.R. § 3.157(b) (1993) provides that the date of an outpatient or hospital examination or admission to a VA or uniformed service hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted. This section does not require the veteran to identify the report as a claim or to identify the benefits sought. In this case, evidence added to the record following the unappealed January 1989 rating decision that denied the total rating claim includes VA hospital discharge summaries showing the veteran was hospitalized for treatment of his service-connected recurrent partial small bowel obstruction in December 1988, for a period in February and March 1989, for a period in April and May 1989, and in November 1989. The file of course includes the record of VA hospitalization from May to August 1990 during which the veteran underwent extensive treatment and multiple surgeries for his service-connected disability. The RO awarded a temporary total rating during the veteran's hospitalization and up to November 1, 1990, followed by the award of a total rating based on unemployability due to service-connected disabilities effective from November 1, 1990. A completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, was received at the RO in late November 1990. The veteran had submitted a statement to the RO in which he said his service-connected disability had deteriorated and he could not work in August 1990, but the record does not show the date the application form was sent to the veteran. In light of the veteran's continuing pursuit of an award of a total rating based on unemployability due to service- connected disabilities demonstrated by the history of the case, the Board acknowledges that the veteran had also submitted informal claims for individual unemployability, within the purview of 38 C.F.R. §§ 3.1(p), 3.155(a), and 3.157(b)(1) (1993), on December 16, 1988, February 22, 1989, April 24, 1989, November 2, 1989, VA hospital admission dates more than a year prior to receipt of his total rating application form. As the record does not show when VA forwarded the "application form," the one-year period for filing a formal claim cannot be determined to have begun to run before late November 1990, and the hospital admission dates in 1988 and 1989 must be taken as the dates of his claim or application for purposes of determining an effective date under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. §§ 3.1(p), 3.400(o)(2), 3.155(a), and 3.157(b)(1). See Servello at 200. Review of the record shows that the veteran was admitted to a VA hospital in December 1988 with a 3 to 4 day history of crampy abdominal pain and signs and symptoms of small bowel obstruction. It was noted that veteran's recurrent small bowel obstruction had been managed by surgical lysis of adhesion approximately five to six times, the last time in 1984, and that he had been managed by nasogastric decompression many times, the last being in December 1987. During the 9-day December 1988 hospitalization, the veteran was treated with nasogastric decompression until the obstruction resolved, and he was returned to a regular diet. There is no indication that the veteran was unable to return to normal activities upon hospital discharge. On February 22, 1989, the veteran was admitted to a VA hospital with a three day history of diarrhea, vomiting, crampy abdominal pains and malaise. He was diagnosed as having a partial small bowel obstruction, admitted to the surgical service and treated conservatively with resolution of the obstruction. On March 3, 1989, he was transferred to the medical service because of complaints of shortness of breath. After testing and treatment, he showed clinical improvement of his shortness of breath which it was stated appeared to be mainly secondary to chronic obstructive pulmonary disease with a reactive airway component. He was discharged home "in very good condition" on March 10, 1989. On April 24,1989, the veteran was admitted to a VA hospital with a two to three day history of diarrhea and a one day history of nausea, vomiting and increasing abdominal girth. After diagnostic tests, the veteran was admitted to the surgical service with a partial small bowel obstruction. He was treated conservatively with nasogastric tube placement and Miller-Abbot tube placement, and the obstruction resolved conservatively by May 3, 1989. On May 4 the veteran was transferred to the medical service for treatment of an exacerbation of his nonservice- connected chronic obstructive pulmonary disease. He was discharged from the hospital May 16, 1989. The veteran has submitted a statement from four men who report that while visiting their shop in November 1989, the veteran began vomiting and continued to do so until they were able to get him to the hospital. A VA hospital summary shows that on November 2, 1989, the veteran was admitted to a VA hospital with complaints of constipation, nausea, vomiting, dizziness, abdominal pain, and cold and clammy sweats. Air from his bowel was decompressed with a nasogastric tube, and the impression was resolving small bowel obstruction. After the veteran had a large bowel movement, the tube was removed, his diet was advanced to normal, and he was discharged after 6 days of hospitalization. VA outpatient records show that the veteran was seen in March 1990 for routine followup. The veteran reported he continued to do well from a pulmonary standpoint and noted he still had intermittent small bowel obstruction. After examination, the physician reported that the veteran continued to do well. In late March 1990, when the veteran was hospitalized at a VA hospital for surveillance concerning possible Barrett's esophagus, he complained of crampy abdominal pain and diarrhea alternating with constipation. The VA medical certificate does not indicate evaluation or treatment concerning small bowel obstruction. The record also shows that the veteran was seen at a VA hospital emergency room in April 1990 stating that he had had breathing problems over the previous weekend. He also complained of abdominal swelling and reported that he had had a bowel movement the previous day. On examination of the abdomen, the physician noted hyperactive bowel sounds and no abdominal tenderness. The diagnoses included history of abdominal adhesions. In May 1990, the veteran was admitted to a VA hospital with severe abdominal pain and change in bowel habits along with vomiting bilious fluid. The following day, without resolution of the small bowel obstruction, the veteran underwent exploratory laparotomy, lysis of adhesions, and a jejunostomy. Complications included antibiotic-resistant sepsis, multiple respiratory problems, and an enterocutaneous fistula. The veteran was discharged in August 1990. At a May 1991 hearing, the veteran testified that after he had had surgery for his service-connected disability in the late 1960's he was unable to return to his previous job and the company for which he worked had no light-duty jobs available. He testified that after that whenever he applied for a job that required a pre-employment physical, he was turned down because when the company physician learned about his surgery for bowel blockage. He reported that he had been an electric station operator and a diesel mechanic. He testified that he tried construction and other work, but could not last more than 2 or 3 days because he was always in the men's room. He said the longest period after 1970 that he was able to hold a job was three days at a supermarket; he testified that he had last tried to get a job in 1980. At the hearing, the veteran also testified that subsequent to his hospital discharge in August 1990, he had experienced severe stomach cramps at least four times, usually had three loose bowel movements every day, and sometimes had bowel accidents. He testified that he wore an abdominal corset because of the ventral hernia that resulted from his surgeries. In response to the Hearing Officer's decision, the RO issued a June 1991 rating decision, confirming a temporary total rating based on hospitalization and convalescence from May 18, 1990 to November 1, 1990, and granting a total rating based on unemployability effective from November 1, 1990. The Board agrees that with the veteran's prolonged hospitalization beginning in May 1990, during which he underwent additional surgery and lengthy convalescence related to his recurrent small bowel obstruction, status post small bowel resection and cholecystectomy, it became factually ascertainable that an increase in the veteran's service-connected disability had occurred that prevented the veteran from obtaining or retaining substantially gainful employment. (Service connection has since also been granted for the large post-operative ventral hernia with a 40 percent disability rating assigned.) VA will grant a total rating for compensation purposes based on unemployability where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). Review of the reports of the hospitalization and outpatient treatment from late 1988 to early 1990 do not convince the Board that it was factually ascertainable at those times that the veteran's service-connected disability alone prevented him from obtaining or keeping a job. This is so because the periods of hospitalization actually involving treatment of the service-connected disability were relatively brief, and in each instance the veteran was discharged without restrictions. In addition, although the outpatient records show that the veteran reported continuing abdominal complaints, they primarily concern treatment for nonservice-connected disabilities and do not indicate that the service-connected disability prevented the veteran from working. The veteran has variously reported that he has 2 to 4 years of high school education and that his last full-time jobs were electric station operator and diesel mechanic. There is no indication that in the late 1980s the veteran applied or was rejected for sedentary jobs not requiring physical exertion. Although an extraschedular 60 percent rating for the veteran's service-connected post-operative recurrent small bowel obstruction, status post cholecystectomy had been granted effective from 1984, the medical evidence does not show that prior to May 1990 the veteran's service-connected disabilities alone prevented him from getting or keeping a job. Under the circumstances, the Board finds that the veteran is not shown to have been rendered unemployable due to service-connected disabilities prior to his hospital admission on May 18, 1990. Under the provisions of 38 C.F.R. § 4.30 (1993), the RO appropriately awarded a temporary total rating based on hospitalization from May to August 1990 followed by convalescence to November 1, 1990. Therefore, the Board concludes that the requirements have not been met for an effective date earlier than November 1, 1990, for a total rating based on unemployability. ORDER 1. Being without legal merit, the claims of clear and unmistakable error in pre-January 1989 rating decisions or decisions of the Board that denied entitlement to a total rating based on unemployability due to service-connected disabilities are denied. 2. The January 1989 rating decision that denied entitlement to a total rating based on unemployability due to service-connected disabilities was not clearly and unmistakably erroneous. 3. An effective date earlier than November 1, 1990, for an award of total disability compensation benefits based on unemployability due to service-connected disabilities is denied. ROBERT E. 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. (CONTINUED ON NEXT PAGE) 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.