Citation Nr: 0002751 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 95-04 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an annual clothing allowance. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The appellant has active service from December 1939 to December 1959. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 1994, the prosthetic treatment center determined the veteran was not entitled to an annual clothing allowance. A rating decision in August 1994 denied entitlement to a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disability. The representative, in an informal hearing presentation in June 1999, claimed that the rating action of February 1998 contained clear and unmistakable error in denying an increased rating for the appendectomy scar. This issue is referred to the RO for further consideration. FINDINGS OF FACT 1. A designee of a VA Medical Facility has certified that the scrotal support necessitated by the veteran's service- connected filariasis does not tends to wear out or tear his clothing. 2. The appellant is service-connected for filariasis, evaluated as 30 percent disabling; residuals of cholecystectomy, evaluated as 10 percent disabling; and an appendectomy scar, evaluated as noncompensable. His combined disability evaluation is 40 percent. 3. The appellant has not been employed since 1979. He is a high school graduate. 4. The appellant's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for payment of a clothing allowance are not met. 38 U.S.C.A. § 1162 (West 1991); 38 C.F.R. § 3.810 (1999). 2. The appellant's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation without regard to advancing age. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background. The appellant is service-connected for filariasis, evaluated as 30 percent disabling; residuals of cholecystectomy, evaluated as 10 percent disabling; and an appendectomy scar, evaluated as noncompensable. His combined disability evaluation is 40 percent. The veteran filed a claim for TDIU in April 1994. He reported that he last worked full time in 1979 and that his service-connected filariasis prevented him from working. He indicated that he had a high school education. In April 1994, a VA physical therapist wrote that when the veteran was issued a walker in April 1994, he forgot to mention that his testicles swelled due to filariasis, and the metal snaps on the cloth cup he wore caused his underwear to rip. In June 1994, a VA supervisory physical therapist indicated that the veteran wore a suspensory elastic waist band and leg strap which wore out his underwear. He was able to verify this because there was a definite tear in his underwear. VA outpatient records disclose the veteran was seen in August 1994. His shorts were torn. He stated that this was caused by his service-connected scrotal support. The veteran received a VA examination for infectious, immune, and nutritional disabilities in December 1997. The examiner reviewed the veteran's claims folder. The veteran claimed that he developed filariasis in 1943 and symptoms included swelling and pain in the left arm and swelling and pain in the scrotum and particular tenderness in the right spermatic cord. He claimed several exacerbations since that time but did not recall any type of treatment. His primary symptoms now were generalized aches and pains, along with swelling in the scrotum and tenderness and pain in the right spermatic cord. He said the condition flared up in hot weather and may last as long as three or four months. He could recall no recent treatment other than Motrin for symptom relief. On examination, the left arm was normal and there was no swelling redness, heat, edema, lymphangitis, or other change. There was a large swollen mass in the left half of the scrotum. It transilluminated, suggesting a hydrocele. The right spermatic code was enlarged and tender. He had no apparent residuals of malnutrition or of vitamin deficiency. He was described as well developed and well nourished. The diagnosis was status post filariasis. The examiner stated that when the veteran had exacerbations of filariasis, and he was assuming that was what was occurring, he would have trouble lifting because of pain and weakness in the left arm. He would also have trouble lifting because of pain and weakness in the scrotum and spermatic cord. The examiner stated that the veteran should be given a residual functional capacity as a light individual, which meant that he could occasionally lift 20 pounds, and frequently lift ten pounds. He stated the veteran should be able to sit, stand, or walk six hours out of an eight hour work day. He stressed that the veteran was 77 years of age, was not a factor in the workforce, and was retired with no plans to work further. The veteran received a VA liver, gallbladder, and pancreas examination in December 1997. The examiner reviewed the claims file. The veteran reported that he underwent a cholecystectomy in 1945 and had had no surgery since. He was told that he had 24 moderate sized gallstones, he claimed residual gastrointestinal symptoms since that time. He claimed that he had had a complete gastrointestinal workup two years ago at the Fayetteville VA Medical Center. For some time he had been taking Tagamet and Maalox. His symptoms included abdominal pain, nausea, vomiting, intolerance to fats, fried foods, and other foods, aching, right upper quadrant pain, bloating, and belching after meals. He stated that he sometimes wondered if he still had a stone. He claimed he became nauseated and vomited about two days a week but then he might go for a week or more without any nausea and vomiting. He could not relate the symptoms to any particular incident of ingestion of any particular food. He denied hematemesis and melena. On examination, the veteran's abdomen was slightly obese and protuberant. Surgical scars were noted in the epigastric area and the right lower quadrant. He had generalized abdominal tenderness but no organomegaly was noted. There were no abnormal masses. Muscle strength was normal and no wasting was noted. An ultrasound of the abdomen revealed an absent gallbladder and was otherwise normal. An esophogram disclosed mild presbyesophagus in the distal esophagus and was other wise normal. A test for ova and para sites disclosed no evidence of either. The diagnosis was status post cholecystectomy with residual gastrointestinal symptoms and mild psuedoesphagus. The examiner commented that although the veteran was not really a candidate for the workforce, the cholecystectomy would only affect his ability to work during time when he was experiencing abdominal pain, nausea, and vomiting. This occurred on an irregular basis, sometimes every week and sometimes the veteran went for a week or more without any symptoms. When he had episodes of pain, nausea, and vomiting, he would be unable to work during those periods of time. Otherwise, the examiner would have given him a light residual functional capacity based on his combined impairments and the residual functional capacity outlined under the immune system examination. The veteran received a VA scar examination in December 1997. The veteran's claim file was reviewed. The veteran disclosed that he underwent an appendectomy in service for a ruptured appendix. His current symptoms included frequent episodes of "pinching pain" over the appendectomy scar with movement or heavy lifting. On examination, the veteran had a scar in the upper half of the abdomen that measured 1 and 1/2 cm. by almost 20cm. long. It represent the cholecystotomy. There was a right lower quadrant scar that measured 1cm by 10cm long. There was some tenderness over the appendectomy scar. The upper scar also had some tenderness and some sensitivity. There was no adherence. The texture was rough. There was no ulceration or breakdown. There was no elevation or depression. There was no tissue loss. There was no inflammation, edema, or keloid formation. The scar was red. There was no disfigurement. The examiner commented that the veteran had no limitation of function as a result of the cholecystectomy scar. The pain in the appendectomy scar would limit his function and the examiner thought a light residual functional capacity was appropriated. The diagnoses were cholecystectomy and appendectomy scar. In February 1998, an examination of the veteran's underwear was performed by a VA physician in the presence of the veteran and a VA prosthetics clerk. The claims file was reviewed. It was reported that the veteran claimed that his clothing was damaged by a VA issued scrotal support. The underwear was examined in the veteran's presence. He presented a large pair of boxer shorts with two areas of small tears just below the waistband of the shorts, far above where the scrotal support was worn. On the right side, there was a tear which measured 1/4 of an inch long and another tear which measured approximately 1/4 of an inch long. There was another tear on the left side of the upper part of the underwear just below the elastic waistband. It was in the shape of an upside down "L". The upper leg, which was horizontal, measured 1/4 of an inch. The lower leg measured 1/2 of an inch. In the lower part of the shorts where the scrotal support was worn, on the right side there was a tear which measured 5 and 3/4 inches long. On the left side of the lower part of the shorts, in the same area where the scrotal support was worn, there was another upside down "L" with the top leg measuring1 and 3/4 inches and the lower part measuring 2 and 3/4 inches. The shorts were soiled and had a brownish discoloration. The scrotal support was also examined. It had three plastic clips. The veteran alleged that the plastic clips had torn the underwear in all the involved areas. In June 1998, documentation was received from the veteran including his disabled person's parking permits, dated in 1992 and 1997. He also submitted a private physician's statement, dated in April 1992, to the effect that he was permanent disabled and severely limited in his ability to walk due to an arthritic, neurological, or orthopedic condition. In a report of contact, dated in January 1998, a VA purchasing agent in the prosthetics section spoke by telephone with the quality assurance coordinator of the manufacturer who stated there had been no documented cases of the scrotal suspensory (Model D-2) causing wear/tear to clothing. She stressed that none of the description of the product mentioned anything pertaining to wear. She faxed the prosthetics division a copy of the product and the summary of the item. This particular support had a plastic buckle and not a metal buckle. A facsimile of the scrotal suspensory, with directions for use, is in the claims file. In the supplemental statement of case, dated in February 1999, the denial of the clothing allowance was upheld. The reasons for this decision were as follows: strap buckles had been used successfully on garments, especially women undergarments, for decades; the manufacture of the suspensory had never received a complaint about damage to clothing caused by the buckles; no other veteran wearing this type of device had reported problems with wear and tear to clothing; In January 1998, the veteran reported that he had no articles of clothing that could support his claim of wear and tear to his clothing. In February 1998, the veteran was only able to produce one pair of shorts that were ripped in four different locations. As assumption was made that any device that caused that much damage to one garment should have damaged all of the undergarments worn during the 23 day period. Consequently, the Chief, VA Prosthetic Treatment Center, and a VA Prosthetic Staff Representative, concluded that they did not feel that a case had been made that buckles caused damage to the veteran's underwear. Legal Analysis Clothing allowance The veteran's claim for a clothing allowance is well grounded within the meaning of 38 U.S.C.A. § 5107(a) particularly in view of the statements of the VA physical therapist in 1994. Additionally, VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(b). In order to establish entitlement to an annual clothing allowance, the Chief Medical Director or Designee of a VA Medical Facility must certify that the veteran wears or uses a prosthetic or orthopedic appliance (including a wheelchair) because of a service-connected disability that tends to wear out or tear his clothing; or uses medication prescribed by a physician for a service-connected skin disorder that causes irreparable damage to his outer garments. 38 U.S.C.A. § 1162 (West 1991 & Supp. 1998); 38 C.F.R. § 3.810 (1999). The controlling regulations are clear that eligibility for an annual clothing allowance requires that the Chief Medical Director or VA Medical Facility Designee conclude that a prosthetic or orthopedic appliance worn because of service connected disability tends to wear out or tear clothing. In this case, VA Medical Facility Designees have concluded that the prosthetic device issued to the veteran because of service connected filariasis did not damage his clothing. Because the evidence does not show that the veteran's scrotal support wears or tears his clothing, or that he otherwise meets the criteria, he is not entitled to an annual clothing allowance, and the claim must be denied. 38 U.S.C.A. § 1162; 38 C.F.R. § 3.810. TDIU A total disability compensation rating may be assigned in a case in which the schedular rating is less than 100 percent, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. 38 C.F.R. §§ 3.340, 4.16 (1999). VA will grant a total rating for compensation purposes based on Unemployability (TDIU) when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). In Hatlestad v. Derwinski, 3 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to Individual Unemployability benefits. Specifically, the Court indicated that there was a need for discussing whether the standard delineated in the controlling regulations was an "objective" one based on average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. Subsequent thereto, the VA General Counsel concluded that the controlling VA regulations generally provided that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also determined that "Unemployability" is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (Dec. 27, 1991) (O.G.C. Prec. 75-91), 57 Fed. Reg. 2317 (1992). The Board is bound in its decisions by the regulations, the Secretary's instructions and precedent opinions of the Chief Legal Officer of VA. 38 U.S.C.A. § 7104(c). In determining whether a veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the veteran's nonservice-connected disabilities with respect to their degree of interference with the veteran's unemployability. In Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court of Veterans' Appeals stated the following concerning the issue on appeal: For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm for such veteran. See C.F.R. §§ 4.1, 4.15 (1992). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (1992). The 30 percent rating assigned for filariasis under Diagnostic Code 6305 contemplates residuals such as epididymitis or lymphangitis. On the VA examination in December 1997 to determine the residuals of the service- connected filariasis, the examiner stated the veteran should be given a functional capacity of a light individual, who was able to lift 20 pounds occasionally and frequently lift 10 pounds and that he should be able to sit, stand, and walk six hours our of an 8 hour day. The 10 percent rating for the residuals of a cholecystectomy contemplates mils symptoms. On the VA gastrointestinal examination in December 1997, examination in December 1997, the examiner stated that it would only effect his ability to work during the times when he was experiencing abdominal pain, nausea, and vomiting and he would have a light residual functional capacity based on this condition. The veteran's other service-connected disability is an appendectomy scar which is evaluated as noncompensable. The examiner again thought a light residual capacity was appropriated as a result of this scar. Although it has been contended otherwise, VA examiners did offer recent medical opinion as to the impact of each service connected disability on the veteran's ability to work, and all concluded that he could perform substantially gainful employment There is no medical opinion or other equally probative evidence to the contrary. At present, the veteran does not meet the schedular guidelines provided for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(a) (1999). That is, he has no single service-connected disability ratable at 60 percent or more, or a combination of disabilities with at least one disability ratable at 40 percent or more with additional service- connected disability to bring the combined rating to 70 percent or more. Moreover, the Board does not find him individually unemployable by reason of service connected disabilities pursuant to 38 C.F.R. § 4.16(b) (1999) The Board, after weighing the evidence, does not find that the service connected disabilities alone preclude the veteran from substantially gainful employment consistent with his education. Accordingly, referral to the Director of VA Compensation and Pension for extraschedular consideration is not warranted. He is not individually unemployable. U.S.C.A. § 1155; 38 C.F.R. §§ 3.40, 3.41, 4.16 (1999). ORDER Entitlement to an annual clothing allowance and to a total rating by reason of individual unemployability due to service-connected disability is denied.. NANCY I. PHILLIPS Member, Board of Veterans' Appeals