BVA9504342 DOCKET NO. 93-06 639 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to an total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from September 1977 and November 1981. This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 1990 rating decision in which service connection was established for multiple sclerosis. Also, by the same decision, the evaluation assigned to the residuals of a fracture of the right humerus was increased from noncompensable to 10 percent. Originally, the issues certified on appeal were two-fold-i.e., entitlement to an increased rating for multiple sclerosis and entitlement to an increased rating for residuals of a fracture of the right humerus. In a May 1992 VA Form 21-4138 (Statement In Support of Claim) the veteran withdrew his claim of entitlement to an increased rating for residuals of a fracture of the right humerus. Also, the veteran submitted VA Form 21-8940 (Veteran's Application for Increased Compensation Based On Unemployability) in May 1992. The RO has not adjudicated that issue. However, the Board, in an attempt to provide a more appropriate and complete response to the veteran's assertions that he is totally disabled, assumes jurisdiction over the issue of entitlement to a total rating based on individual unemployability due to service- connected disability and construes that to be the singular issue on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to increased compensation for service-connected multiple sclerosis. He has provided testimony to the effect that he has exhaustion, clumsiness of the upper extremities, weakness in the lower extremities, numbness and a tingling sensation in the hands and feet, as well as poor coordination. The veteran also reports having slurred speech at times, floaters in both eyes, urinary urgency and hesitancy, sexual dysfunction and a tremor of both arms. He reported that he staggered all the time, that he tripped over his own feet and that he was unable to climb stairs. He states additionally that he had not worked since November 1989 due to his service- connected disability. He testified that his only training had been in refrigeration work to which he is unable to return. Furthermore, he reports that he is unable to do any of the household chores because of poor coordination and fatigability. 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 favors a total rating based on individual unemployability due to service- connected disability. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. The veteran completed one year of college, has work experience in maintenance and refrigeration and last worked in November 1989. 3. Combined, his service-connected disabilities are evaluated as 70 percent disabling and show marked interference with his ability to work at substantially gainful employment. CONCLUSION OF LAW The veteran is totally disabled and unemployable by reason of his service-connected disability. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That means that he has presented a claim that is plausible. The Board is also satisfied that all appropriate development has been accomplished and that there is no further action required for VA to satisfy its duty to assist. Service connection was established for multiple sclerosis in a rating decision, dated in October 1990. This decision was based on the veteran's service medical records and the reports of private and VA outpatient treatment. The veteran was assigned the following disability ratings: a 20 percent rating for left lower extremity weakness due to multiple sclerosis, a 10 percent rating for right lower extremity weakness secondary to multiple sclerosis and a noncompensable rating for decreased sensation in the right arm and face secondary to multiple sclerosis. The August 1992 rating reflects that the veteran was assigned the following ratings for symptoms due to multiple sclerosis: a 20 percent rating for left lower extremity weakness, a 20 percent rating for right lower extremity weakness, a 20 percent rating for left upper extremity weakness, a 20 percent rating for right upper extremity weakness, a 20 percent rating for loss of bladder control and a 10 percent rating for facial nerve weakness. Service connection has been established for the residuals of a right humerus fracture, as noted previously, evaluated as 10 percent disabling. The veteran has other noncompensable service-connected disabilities and has a combined rating of 70 percent. The bilateral factor has been considered in this rating. The veteran has completed one year of college. He has work experience in maintenance and last worked in November 1989. The veteran underwent a VA examination in April 1990. At that time, he stated that while he was in the military, he always hurt himself on the right side. He was hospitalized for two weeks because he felt weak. Initially, the diagnosis was mononucleosis. He also reported that his fingers were crushed in a truck accident when he could not pull his right hand away fast enough. He also related that he lost his balance in Germany and fell 12 feet, injuring his right arm. In 1986 he staggered around for two weeks, and was diagnosed as having an inner ear problem. He had had sexual dysfunction as well, with difficulty with both erection and ejaculation. He was easily fatigued. Finally, in November 1989, he lost his balance and was unable to walk. His legs were weak and fatigued. Evaluations including magnetic resonance imaging (MRI) and evoked potentials were consistent with multiple sclerosis. He had problems with his balance, and stated that he saw floaters before his eyes in the previous summer. He denied having diplopia, however. He had had slurred speech that occurred periodically in the previous year. He reported having muscle twitches from lying down. He could no longer perform the type of employment that required him to walk or to use tools or ladders. He stated that he had urgency of urination and reported one episode of urinary incontinence. It was not clear as to whether or not the veteran had any true bowel incontinence. The examination showed that the veteran's discs were pale with a temporal pallor. He had a left affective facial. Extraocular muscles were full with no nystagmus. The cranial nerves were otherwise intact. He had very mild dysarthria. Motor function was 5/5, except for the hip flexor muscle on the right, which was 4 out of 5. The knee extensor on the left was 4.5 out of 5. The sensory examination showed decreased sensation to pin prick in the right arm, leg and face. Vibratory and position tests were intact. Deep tendon reflexes were 2+ in the right arm, 3+ in the left arm, 2+ in the right leg and 3+ in the left leg. The toes on the right were downgoing, while the toes on the left were upgoing. There was finger to nose ataxia. Heel to shin motion showed severe bilateral ataxia. The veteran's gait was wide-based, and there was clonus at the ankle on the right. The diagnosis was multiple sclerosis with signs of spinal cord, brain stem, cerebellar involvement and MRI evidence of cortical involvement. The veteran also had sexual dysfunction and urinary incontinence. The examining physician expressed the opinion that the veteran was disabled from his job. The veteran underwent private evaluation by R. Sherkat, M.D. of the New England Neurological Associates, P.C., in March 1991. At that time, he complained of progressive weakness in the legs, urinary hesitancy and urgency and sexual dysfunction. He was alert and oriented. He had slight cerebellar dysarthria. The cranial nerves 2-12 otherwise showed no appreciable deficits. The veteran was observed to have a wide-based gait, a slight intention tremor in his arms and dystaxia in both legs. The muscle tone was not appreciably increased by manual examination. But, there was unsustained clonus in both ankles. Deep tendon reflexes were present and symmetrical throughout. Strength was 5/5 on the right and 4/5 on the left. Sensory testing revealed diminished vibration sensation in a stocking distribution. In September 1991, Dr. Sherkat described the veteran as a 31-year-old male with a history of multiple sclerosis. There had been no flare-up since his last visit in March of that year. He complained of problems with obtaining an erection and ejaculation, and reported having muscle spasms, headaches and joint pain. The neurological examination showed that there were no changes in mentation. Speech was no longer dysarthric. The fundi revealed right-sided temporal pallor. There was no nystagmus. Motor testing revealed somewhat of a wide-based gait, positive Romberg and tandem walking. He had unsustained clonus in the ankles. Deep tendon reflexes were brisk in the knees and 2+ in the ankles. The veteran had dystaxia with the heel to shin maneuver, and there was slight postural tremor and mild intention tremor with the left finger-to-nose maneuver. The sensory testing revealed diminished vibration in both feet. The impression was that the veteran had no symptoms suggestive of a multiple sclerosis flare-up and had some objective findings that remained stable or were somewhat improved. The veteran underwent a private medical examination, from R. S. Finkleman, M.D., of the New England Neurological Associates, P.C., in February 1992. He was described as a 32-year-old right- handed male with multiple sclerosis, characterized by coordination and balance problems. As reported, the veteran was first seen three years previously. Subsequently, he developed involvement of the cortical spinal and posterior column pathways, as well as bilateral optic neuropathy. He complained of stiffness and weakness in both lower extremities as well as some clumsiness of the upper extremities. There was no marked visual disturbance. The veteran was no longer employed; but was attending college in an attempt to obtain a business degree. On examination, the veteran showed slight lability of his affect. Mental status testing otherwise appeared unremarkable. His speech was mildly slurred. There was flattening of the left nasal labial fold, that was less prominent with smiling. There was increased flexortone to a mild extent in both upper extremities and a significant increase in extensortone in both lower extremities. There was a mild tremor and some choreoathetoid movements of outstretched arms, more so on the left side. Grip strength was good, and proximal muscle power in the upper extremities was normal. There was slowing of the fast finger movements bilaterally. There was some decreased motor function in the lower extremities, but this appeared to be more the result of marked spasticity. There was no true weakness or foot drop. There was bilateral ankle clonus which was unsustained. Reflexes were extraordinarily brisk in the lower extremities with bilaterally upgoing toes and were 2 to 3+ in the upper extremities. There were bilateral Hoffmann's signs, some loss of vibratory sensation in both ankles and positive Romberg sign, although the veteran was somewhat unsteady with his eyes open. He had an ataxic spastic gait with bilateral circumduction. Cerebellar testing showed finger-to-nose dysmetria, more prominent on the left side. There was severe heel to shin dysmetria which might have been related to spasticity. The impression was multiple sclerosis, remitting-relapsing course. The physician noted that the veteran was 5.5 to 6 on the Kurtzke extended disability scale. The majority of the findings appeared to relate mostly to spinal involvement although there certainly appeared to be involvement of the cerebellar pathways and posterior column. There was no evidence to suggest acute exacerbation. The spasticity was rather marked and might respond to low doses of Baclofen. He was interested in obtaining physical therapy which might be possible in the near future. It was not believed that the veteran would benefit from the use of steroids or from experimental protocol. He had mild complaints of fatigue. Treatment with medication and the cessation of alcohol use were recommended. A March 1992 statement from J. J. Shula, M.D., shows that the veteran was tested with a snap gauge while sleeping and was able to develop complete erections. However, he did have variable periods of impotence and an inability to ejaculate, related to his multiple sclerosis. In June 1992, the veteran underwent a VA eye examination which showed that he had an unaided distant visual acuity of 20/25 in the right eye and 20/40 in the left eye. No ocular complications from multiple sclerosis were disclosed. In June 1992, the veteran underwent a VA urology examination. At that time, he presented a history of multiple sclerosis and a failure of ejaculation and erections over a period of three years. He had had no obstructive voiding symptoms, but had urgency incontinence. He brought a statement from Dr. Shula who had done a cystometric study and found an uninhibited bladder consistent with multiple sclerosis with hyperreflexia of the bladder. The veteran reported that he urinated 12 times during the day and stated that he had nocturia. There was no gross pyuria or pain on urination. In order to reduce the chance of incontinence, the veteran often stopped drinking fluids. Otherwise, when he went to a public event, he wore a pad for incontinence. When at home, he could reach a bathroom soon enough, however. The diagnosis was uninhibited urinary bladder with incontinence and impotence, both consistent with multiple sclerosis. The veteran underwent an examination of the peripheral nerves in June 1992. It was noted that in 1989, the veteran was diagnosed with multiple sclerosis. He was advised not to return to the type of work that he had been doing because of the tremors of his legs. He had tingling in his fingertips and toes. He reported that he had had bowel incontinence in the last year. On the physical examination, the discs were flat with a temporal pallor, bilaterally. Motor function was 5/5 in the arms, 3/5 proximally in the legs and 5/5 distally in the legs. Spasticity on the right leg was greater than the left leg, but bilateral spasticity was present. The sensory examination showed decreased pin prick sensation on the face on the left side. There was decreased position in the left foot and decreased pin prick sensation in the left arm, from the toes up to T2 and the right sacral segment. There was decreased vibratory sensation in the left ankle. Deep reflexes were 2+ on the right, 3+ on the left and 4+ in the legs, with clonus. The toes were upgoing. The finger- to-nose maneuver was performed with an ataxia on the left. The diagnosis was multiple sclerosis with bowel/bladder incontinence and impotence with cord signs, cerebellar signs, optic signs by evoked potentials, and cortical signs. In the opinion of the examining physician, the veteran was totally disabled by multiple sclerosis. 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, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one shall be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). The Board notes that, alone, the symptomatology of multiple sclerosis, is of sufficient severity to be equivalent to a combined rating of 70 percent evaluation. 38 C.F.R. § 4.24. Moreover, a VA physician at the most recent VA examination expressed the opinion that the veteran is currently unemployable by reason of service-connected disabilities. Thus, the preponderance of the evidence supports a finding that the veteran is entitled to a total rating based on individual unemployability due to his multiple sclerosis. ORDER A total rating based on individual unemployability due to service-connected disability is established, subject to regulations controlling the payment of monetary awards. BARBARA B. COPELAND 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.