BVA9500990 DOCKET NO. 91-10 392 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to service connection for a bilateral acquired eye disorder. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from March 1957 to March 1961. The current appeal is taken from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, in December 1989, denying service connection for carpal tunnel syndrome, tinnitus, and an eye disorder, and a total rating based on individual unemployability. In August 1991, the Board granted service connection for defective hearing and tinnitus, and remanded the case on the issue of entitlement to a total rating based on individual unemployability for review by the RO in light of the Board's grant of additional service-connected disabilities. The Board deferred action on the issues of service connection for carpal tunnel syndrome and an eye disorder pending completion of the remand action. In a rating action in September 1991, the RO assigned a 10 percent evaluation for tinnitus and a zero percent rating for bilateral defective hearing from June 21, 1989, and continued to deny a total rating based on individual unemployability. The case was remanded again by the Board in October 1992 for RO review of the veteran's claim with regard to increased evaluations for all of his service-connected disabilities which, at that time and to that limited extent, the Board considered to be inextricably intertwined with his pending claim for a total rating based on individual unemployability. The RO considered the veteran's claim for increased compensation, confirmed the prior ratings and continued to deny a total rating based on individual unemployability. The RO subsequently prepared a supplemental statement of the case on and returned the case to the Board on the issues shown on the front cover of this decision, which the Board finds are properly before the Board as part of the current appeal. The veteran has been represented throughout his appeal by the Disabled American Veterans which has made presentations on his behalf, the most recent of which was in December 1994. CONTENTIONS OF APPELLANT ON APPEAL In substance, it is argued that the veteran's inservice head trauma precipitated his carpal tunnel syndrome in both upper extremities and current acquired eye difficulties, and that the veteran's service-connected disabilities cause him to be 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 veteran's claim for service connection for bilateral carpal tunnel syndrome and an acquired eye disorder is not well grounded; and that the preponderance of the evidence is against the veteran's claim for entitlement to a total rating based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. There is no medical evidence or opinion associating bilateral carpal tunnel syndrome of the upper extremities or any acquired eye disability to service or to the veteran's service-connected traumatic organic brain syndrome. 3. The veteran's service-connected organic brain syndrome, tinnitus and bilateral defective hearing, evaluated as 30 percent, 10 percent and zero percent disabling, respectively, do not render him unable to work in all forms of gainful occupational endeavor. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for bilateral carpal tunnel syndrome of the upper extremities and an acquired eye disability is not well-grounded. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303(c), 3.310 (1993). 2. A total rating based on individual unemployability due to service-connected disabilities is not warranted. 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS History In service, the veteran was knocked unconscious and apparently robbed by persons unknown, after a party, in February 1958. When hospitalized, he was described as having marked edema of the left side of the face and various lacerations which were sutured. He initially had marked edema and ecchymosis of the left eyelid and inability to open the left eye without assistance. However, neurologic evaluation and examination of the eyes and a skull X- ray and other tests were normal and showed no evidence of intracranial injury. The remainder of the service medical records reflect no complaints or findings related to the February 1958 head trauma. On his separation examination in 1961, there were no eye abnormalities, and visual acuity was 20/20. Service records indicate no wrist problems, nor were wrist problems shown in records within several years of separation from service. An August 1965 VA examination included no wrist or eye complaints or clinical abnormalities related thereto. During a VA examination performed in September 1970, he described problems with a vague, non-lateralizing feeling of unsteadiness most notable when he drove and objects moved rapidly past the periphery in the visual field. The examiner concluded that this mild vertigo was probably due to perception of moving objects in the periphery of his visual fields while he was in a moving vehicle, but that this was not due to either any labyrinthine disease or peripheral vestibular mechanism. He has had similar complaints periodically since then. Service Connection Pursuant to 38 U.S.C.A. 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is a "plausible claim, one which is meritorious on its own or capable of substantiation". Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran is seeking service connection for bilateral carpal tunnel syndrome and an acquired eye disorder either as a result of inservice head trauma or secondary to his organic brain syndrome. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and an organic neurological disorder becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for chronic disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). A developmental defect or anomaly such as refractive error of the eyes is not a disease entity subject to service connection. 38 C.F.R. § 3.303(c). Service Connection: Eye Disorder A development defect or anomaly such as refractive error of the eyes is not a disease entity subject to service connection. 38 C.F.R. § 3.303(c). In his April 1990 substantive appeal, the veteran referred to refractive error for which he had been prescribed glasses. In reaching its decision, the Board has taken into consideration the veteran's claim that his head injury in service precipitated chronic acquired eye problems. However, the appellant's claim is not confirmed by contemporaneous medical records, nor is there medical evidence or opinion to support that assertion. It is noted that at the time he was initially knocked out in service, he was unable to open his left eye because of swelling. However, there was no evidence of eye injury at that time or since. Refractive error of his eyes shown since service is developmental in nature, unrelated to head trauma, and was not caused by any service-connected injury or disability. On a recent VA examination, the veteran was found to have refractive error of his eyes, an incorrect lens in his prescription glasses for the left eye, non-ocular related complaints of dizziness, and a "normal eye examination". Regarding the veteran's periodic complaints of alleged nystagmus with symptoms allegedly aggravated by visual stimulation of moving cars at stop lights, a VA examiner in the past found no organic basis for the complaints. More recently, there were equivocal findings on electronystagmographic (ENG) subtests in May 1992, but a follow-up evaluation in June 1992 showed no abnormal findings, and it was suggested that these complaints had been due to his stress and fatigue at the time of prior testing as well as other unrelated factors. There was no evidence of any eye disorder other than a refractive error. There is neither medical evidence nor opinion to support his contention that he has any acquired eye disorder which is the result of service injury including a trauma to his head, or service-connected disability. While the veteran has stated that he believes his inservice head injury caused chronic eye problems, this is not borne out by the evidence; moreover, the veteran, as a lay person, is not qualified to determine medical causation. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The Board finds that the appellant's claim for service connection for an acquired eye disorder is not well-grounded and therefore must be dismissed. 38 U.S.C.A §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.310. If the appellant were to submit medical evidence relating an acquired eye disorder to service or to any service-connected disabilities, his claim in this regard would be well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Oct. 21, 1994). Service Connection: Wrist/Elbow Disorder With regard to bilateral carpal tunnel syndrome, it is noted that the veteran did not manifest such a problem in service or for many years thereafter, nor prior to apparently the early 1980's. Since then, VA clinical records confirm that he has had recurring problems for which he has undergone treatment and surgical procedures on both wrists and elbows, and there have been variable long-term results. While the veteran has argued that he believes there is a relationship between his head injury and his carpal tunnel syndrome, this is not supported by the evidence of record and, the veteran is not qualified to reach such a medical conclusion. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). There is no medical opinion or medical evidence of record to support his contentions that his inservice head trauma precipitated the more recent carpal tunnel syndrome, nor that the organic neurological disorder was demonstrated in proximity to service. The Board finds that the appellant's claim for service connection for bilateral carpal tunnel syndrome is not well- grounded and therefore must be dismissed. 38 U.S.C.A §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.310. If the appellant were to submit medical evidence relating carpal tunnel syndrome to service or to any service-connected disabilities, his claim in this regard would be well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Oct. 21, 1994). Individual Unemployability A total rating based on individual unemployability due to service-connected disabilities requires that a veteran's service- connected disabilities, alone, without regard to advancing age or nonservice-connected factors, preclude gainful employment. In pertinent part, the regulations relating to total ratings indicate that they may be assigned where the schedular rating is less than l00 percent when the disabled person is unable to follow a substantially gainful occupation as a result of service- connected disabilities, provided that if there is only one such disability this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). At the present time, the veteran does not have any disability ratable at 40 percent or more, nor are his service-connected disorders, when rated in combination, 70 percent or more disabling. The veteran has reported that while he has not lost any jobs because of his disabilities, he has not been hired after he has told prospective employers of his disabilities, and that he has given up in finding work. The record shows that over the years, he has worked at a number of jobs, primarily of a labor nature, none for extensive periods. A VA Form 21-8940, dated in September 1987, indicated that he last worked on a full-time basis in 1982, and that he had since worked as a mail handler and since as a self-employed painter and woodcutter. The evidence shows that he previously requested VA vocational rehabilitation, but has more recently withdrawn that request. In correspondence to which the veteran has since referred, and after a report by a counseling psychologist, he was informed by the RO in March 1988 that he was considered infeasible for vocational rehabilitation training at that time because of his neuropsychiatric condition as well as his nonservice-connected carpal tunnel syndrome. The veteran was not interested in participating in a sheltered workshop. Social Security benefits have not been awarded. Pursuant to the Board's remands, additional clinical records have been obtained and are associated with the file, including extensive VA outpatient treatment records and other evidence. The veteran has had nonservice-connected disorders associated with his knees with possible degenerative joint disease, skin lesions, instances of elevation in blood pressure, and elbow and wrist problems, particularly of a sensory nature, in both upper extremities for which he has had care and surgery. He has had minor bouts of anxiety and depression, for which he is not service-connected. As for service-connected disabilities, the veteran's rating for his service-connected head injury with post-traumatic encephalopathy, now described as traumatic organic brain syndrome, was increased from 10 to 30 percent in January 1986 primarily because of VA examination findings confirming his problems with memory and concentration. This was also a reflection of the industrial impact that this memory deficit might cause, as identified on a recent Social and Industrial Survey. He has periodically complained of mild vertigo and headaches and dizziness along with his tinnitus. VA examination in 1987 including a CT scan showed normal neurological findings except for his carpal tunnel complaints and a positive Babinski's sign on the right. In April 1993, a VA physician commented that the veteran did not suffer from an organic mental disorder, or, if he did, it was at best, of a mild degree. In addition, he has service connection and a 10 percent rating for tinnitus, and bilateral defective hearing for which a zero percent rating is now assigned, for a combined 40 percent rating. While these disabilities may cause some vocational incapacitations, it is not demonstrated that these disabilities alone preclude the veteran's work in some sort of gainful occupational endeavor. A total rating based on individual unemployability is not warranted. ORDER The veteran's claim for service connection for bilateral carpal tunnel syndrome and a bilateral acquired eye disorder is dismissed. The veteran's claim for a total rating based on individual unemployability due to service-connected disabilities is denied. RENÉE M. PELLETIER 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.