BVA9501545 DOCKET NO. 93-04 344 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a total disability rating based on the veteran's individual unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from July 1950 to January 1954 and from April 1954 to May 1971. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a January 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is unable to work because of his service-connected disabilities. He alleges that his heart disability did not improve following his bypass surgery. 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 evidence supports restoration of a total disability rating based on the veteran's individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran remains effectively precluded from gainful employment by his service-connected disabilities. CONCLUSION OF LAW A total disability rating is warranted based on the veteran's individual unemployability. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. § 4.16(a) (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is plausible and capable of substantiation, and thus well- grounded within the meaning of 38 U.S.C.A. § 5107(a). When an appellant submits a well-grounded claim, VA must assist in developing facts pertinent to that claim. Id. The Board is satisfied that all relevant evidence has been obtained and that no further assistance to the appellant is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected disabilities, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. 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). The initial requirement of a total rating under this provision, is that where, as here, 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. Id. Here, the veteran's service-connected disorders are arteriosclerotic heart disease with hypertension and angina, post myocardial infarction and coronary artery bypass surgery (60 percent); residuals of mastoidectomy, bilateral, with hearing loss (20 percent); and bilateral otitis media (10 percent). The veteran meets this initial criterion, in that his heart disability is 60 percent disabling, and his total combined disability rating is 70 percent. In November 1991, the RO granted a total rating due to the veteran's individual unemployability. The evidence showed that the veteran had last worked in December 1990 and that he resigned for medical reasons. Medical records indicate that he was hospitalized in April 1991 with complaints of chest pain and shortness of breath. He was readmitted in August 1991 with chest pain. The RO noted that although heart disease alone did not render the veteran unemployable (accounting for only a 60 percent schedular rating), the combined effect of all three service- connected disabilities did. Thereafter, a VA hospitalization report for October 1991 was submitted. The veteran had two- vessel coronary artery bypass grafting. Based on this evidence, the RO, in January 1992, assigned a 100 percent schedular evaluation for one year and one month following the surgery. The total rating was effective from October 12, 1991, and the 60 percent rating was restored effective from December 1, 1992. Individual unemployability benefits were terminated as of October 12, 1991, and they were not reinstated as of December 1992. It was noted that following the surgery, there was definite probability of improvement, and a future examination was scheduled. The veteran appealed the termination of the total rating due to individual unemployability. A VA examination was conducted in November 1992. The veteran stated that following the bypass surgery, he had done quite well. However, he continued to get angina with mild exertion and used about three nitroglycerin tablets a day when active. He reported that when he did not exert himself, he might go several days without pain. The diagnoses were ischemic heart disease with healed inferior myocardial infarction, unstable angina syndrome and coronary artery bypass graft surgery. He also had a history of hypertension. In December 1992, the RO denied entitlement to a disability rating in excess of 60 percent for heart disease; however, the issue of entitlement to a total rating due to individual unemployability was not discussed. As the RO noted in its November 1991 decision to grant a total rating based on individual unemployability, although the veteran's heart disease alone did not render him unemployable, all of his service-connected disabilities did. The November 1992 VA examination did not show that the overall picture had changed significantly since the bypass surgery. Therefore, the Board finds that a total rating based on the veteran's individual unemployability should not have been terminated. ORDER Restoration of a total disability rating based on individual unemployability due to the veteran's service-connected disabilities is granted. J. J. SCHULE 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.