BVA9508270 DOCKET NO. 93-11 717 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD W. H. Wetmore, Counsel INTRODUCTION The veteran served on active duty from December 1942 to November 1944. The Board of Veterans' Appeals (Board) received this case on appeal from a November 1990 RO rating decision which denied increased evaluations for the veteran's service-connected left below-the-knee amputation and right knee arthritis. During the pendency of the veteran's appeal, the RO granted service connection in January 1992 for arthritis of both hips, assigning 10 percent evaluations for the impairment of each hip. In that rating decision, the RO also increased the 10 percent evaluation assigned arthritis of his right knee to a 20 percent evaluation. The RO denied his claim for total rating benefits in a July 1992 rating decision. In an October 1992 statement, the veteran's representative withdrew a claim of service connection for hypertension. The claims for increased evaluations for the residuals of an amputation of the left leg and for arthritis of the right knee were withdrawn by his representative in a March 1993 statement. Accordingly, the Board has appellate jurisdiction of the issue set forth on the front page of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he meets the criteria established in 38 C.F.R. § 4.16 (1994) for a grant of unemployability benefits. He claims that no one ever would hire him because of his below-the- knee amputation, sustained in combat, and that he has been self- employed since separation from active duty. He asserts that his health has deteriorated over the years, with hypertension diagnosed in the 1970's and arthritis causing him difficulty in the 1980's. He avers that these problems lead to his having to give up his occupation as an animal artificial inseminator and try selling and working his farm. He claims that his age and arthritis and "complications" have now forced him to reduce his activities to the degree that he cannot support himself. 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 is in favor of the claim of a total rating based on individual unemployability due to service-connected disabilities. FINDING OF FACT The veteran's service-connected disabilities are of sufficient severity to produce unemployability. CONCLUSION OF LAW A total rating based on individual unemployability due to service-connected disabilities is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16, 4.26 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION It is the established policy of VA that all veterans who are unable to follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). It follows that consideration of the veteran's age or nonservice-connected disabilities, such as hypertension, is not for consideration in the current claim. The matter before the Board is limited to whether the service- connected disabilities are shown to preclude him from employment. In the claim received from him in April 1992, the veteran stated that he had completed 11 years of formal education and completed a course on insemination. He stated that his work experience had been limited to being a self-employed animal inseminator. At the August 1991 examination, he described himself as a retired farmer. The veteran is service connected for the residuals of a below- the-knee amputation of the left leg (assigned a 40 percent rating), arthritis of the right knee (assigned a 20 percent rating), arthritis of the right hip (assigned a 10 percent rating) and arthritis of the left hip (assigned a 10 percent evaluation). With consideration of the bilateral factor (38 C.F.R. § 4.26), the combined evaluation is 70 percent. The veteran is also entitled to special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) on account of anatomical loss of one foot. The veteran worked, by his own account, until 1989 in the field of artificial insemination. He contends that he has been unable to do so since then because of arthritis, hypertension, age and "complications." He has indicated that he has tried working his farm, but his disabilities have required him to cut back. In March 1993, he reported that he had lost most of his lambs that year, due to being unable to get to his barn. Considering only the service-connected disabilities, the Board notes that the veteran sustained severe land mine fragment wounds in January 1944, in service, which resulted in surgical amputations that month and in May 1944. A satisfactory prosthesis was provided and there has been no showing of a painful neuroma since. However, the alteration in his gait due to this was deemed to result in arthritis of his right knee and both hips. The arthritis of the knee was shown during a VA examination in May 1980. Limitation of motion affecting the right knee was noted at a VA examination in August 1986. Some deformity, some limitation of motion and the absence of instability were noted at a VA examination in October 1990. A private doctor reported arthritis of the veteran's right hip in a June 1991 statement. Arthritis of both hips was radiographically established during a VA examination in November 1991. Bilateral knee flexion was significantly reduced. Bilateral hip flexion was moderately reduced, as were abduction and rotation. The veteran was noted to walk with a limp. Passive motion of the hips produced pain. Limitation of motion and pain on motion involving the hips and right knee were objectively established during this examination. Prominent degenerative changes of the right knee were also demonstrated radiographically. At the August 1991 rating examination, severe degenerative changes of the right knee were shown on X-ray. The left leg amputation stump was tender to palpation and there were some erosions, due to rubbing by the prosthesis. The veteran complained of aching of the amputation stump. There is no question but that the veteran has severe impairment of his lower extremities attributable to his service-connected disabilities, but there are no other service-connected disabilities. He has had some of these problems for many years and was able to work until recently. In reaching a decision in this case, the Board is mindful of the veteran's relatively limited education. He has reported difficulty in obtaining employment from others through the years due to his amputation. This forced him to become self-employed, and he reportedly engaged in work as a self-employed animal inseminator for many years. Due to current disability, however, he discontinued this work. The Board finds it significant that he was unsuccessful in obtaining substitute work as an inseminator, a job for which he would seem to be eminently qualified. As to his work on his farm, the veteran has indicated that he has been unable to meet the physical demands thereof, and has had to cease this type of work as well. The evidence is uncontradicted in this regard. It must also be determined, as noted earlier, whether the service-connected disabilities, acting alone, preclude work. The Board concludes that the physical restrictions imposed by the service-connected disabilities alone are shown to be sufficient to preclude the veteran from obtaining and retaining substantially gainful employment which is commensurate with his education and prior work experience. ORDER A total rating based on individual unemployability due to service-connected disabilities is allowed. 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.