Citation Nr: 9822437 Decision Date: 07/24/98 Archive Date: 08/03/98 DOCKET NO. 97-04 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD Elizabeth Gallagher, Associate Counsel INTRODUCTION The veteran had active service from March 1943 to December 1945. The veteran was a prisoner of war of the German government from December 14, 1944 to April 23, 1945. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 1996 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Cleveland, Ohio. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the symptoms and loss of function attributable to his service-connected disabilities render him unable to obtain or maintain substantially gainful employment, and that he is thus entitled to a total disability rating for compensation purposes based on individual unemployability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 against a grant of a total disability rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. Sufficient evidence is contained in the claims file to render an equitable decision on this appeal. 2. The veteran is service-connected for peripheral neuropathy of the right upper extremity due to frostbite, rated as 20 percent disabling, peripheral neuropathy of the left upper extremity due to frostbite, rated as 20 percent disabling, peripheral neuropathy of the left lower extremity due to frostbite, rated as 10 percent disabling, peripheral neuropathy of the right lower extremity due to frostbite, rated as 10 percent disabling, tinnitus, rated as 10 percent disabling, chronic otitis externa, rated as 10 percent disabling, and anxiety reaction, rated as 10 percent disabling. His combined service-connected disability rating is thus 70 percent, including the bilateral factor. 3. The veteran has a two years of college education, and has had occupational experience as a steel mill worker, and as a delivery person for a dental lab; he last worked at a full- time position in approximately 1980. 4. The veteran’s service-connected disabilities did not prevent him from working in a steel mill until he took normal retirement and did not preclude subsequent employment. 5. The veteran’s service-connected disabilities are not of such a nature and severity that he is currently prevented from engaging in all forms of substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The veteran is not unemployable by reason of his service- connected disabilities. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran’s claim is well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. The VA determines disability evaluations through a schedule of ratings which is based on the average impairment of earning capacity resulting from specific service-connected disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1997). A total disability rating for compensation purposes may be assigned when the schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age; provided that, if there is only one such disability, that 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. For the purposes of finding a single 40 percent disability, disorders affecting upper or lower extremities, resulting from a single accident or common etiology, affecting a single bodily system, or incurred in action, or while a prisoner of war shall be considered a single disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The veteran is service-connected for peripheral neuropathy of the right upper extremity due to frostbite, rated as 20 percent disabling, peripheral neuropathy of the left upper extremity due to frostbite, rated as 20 percent disabling, peripheral neuropathy of the left lower extremity due to frostbite, rated as 10 percent disabling, peripheral neuropathy of the right lower extremity due to frostbite, rated as 10 percent disabling, tinnitus, rated as 10 percent disabling, chronic otitis externa, rated as 10 percent disabling, and anxiety reaction, rated as 10 percent disabling. His combined service-connected disability rating is thus 70 percent, including the bilateral factor. The Board notes that the veteran’s service-connected disabilities can be considered as one disability for purposes of 38 C.F.R. § 4.16 as they were incurred in, or resulted directly from, his experiences as a prisoner of war. The veteran’s service medical and personnel records show that his disabilities were incurred during his period of captivity as a prisoner of war of the German government from December 19, 1944 to April 23, 1945. While a prisoner of war, he developed bilateral chronic suppurative otitis, and tinnitus, and was also exposed to conditions of extreme cold which resulted in frostbitten hands and feet. The emotionally traumatic experience of being held captive led to his development of an anxiety reaction, including symptoms consistent with post-traumatic stress disorder. Records reviewed by this Board showed that the veteran graduated from High School and has had two years of college level training in electrical and mechanical engineering. He has had occupational experience as a foreman in a steel mill, and as a delivery person for a dental lab. The Board noted that the veteran’s last full-time employment was ended by retirement in approximately 1980. In statements submitted by the veteran and his representative, including his substantive appeal (VA Form 9), and the statement of accredited representation (VA Form 646), the veteran asserts that he obtained a part-time job as a delivery person for a dental lab after his retirement in 1980 at age 57 from his long-time employment at a steel mill, but that he had to give up his part-time position, in approximately 1983, due to swelling, tremors, and hypesthesia in his hands and feet. He further asserts that he has great difficulty walking over 200 feet. In 1949 service connection was granted for the veteran’s constant, bilateral tinnitus due to damage from acoustic trauma in service. As of the date of his December 1987 prisoner of war protocol examination, the veteran continued to complain of that disability. Multiple non-service connected disabilities were noted at that time including marked exogenous obesity, cardiovascular disorders, cerebral atrophy, diffuse arthralgia, and prostatic hypertrophy. A social survey noted that after his appropriate retirement from a 30 year tenure at a steel mill the veteran had occupied his time with travel, home repair and a local POW group. He had no social, marital or financial problems. The report of the veteran’s January 1993 VA examination of his arteries and veins noted that there was pallor on elevation of the feet, and a lesser degree of pallor in the dependent position as well. Examination of the hands showed edema of the hands on both the dorsal and palmar surfaces. The pedal pulses were Grade II to III on the left, and Grade II on the right. The tips of the toes, but not the fingers, were cold to the touch. Paresthesias and cardiac involvement were present. X-ray studies showed evidence of arthritic changes in the first metatarsal phalangeal joints bilaterally particularly in the right foot, and minimal arthritis in the region of the right thumb. The diagnoses were organic residuals of frostbite of the hands and feet, obesity and cardiac problems. The veteran was afforded a VA peripheral nerves examination in May 1994. He presented with complaints of constant numbness in his left hand, sporadic numbness in his right third finger radiating to the elbow, and numbness in both feet up to the ankles. He reported that his symptoms were worse in cold weather. He further reported that after walking about three hundred feet he would need to stop and rest otherwise his legs would give out and he would fall. The examiner noted that the veteran’s gait appeared normal except that he walked with associated arm movements. The grip in his hands was found to be half that of normal. Hypesthesia was noted in the dorsum of the left fifth finger, the dorsum of the right hand, and minimal hypesthesia was noted in the dorsum of the right toes. The diagnosis was peripheral neuropathy of the feet and hands secondary to frostbite. The report of the veteran’s July 1996 VA peripheral nerves examination noted that he presented with complaints of shaking in his arms and hands, causing him to spill things, sporadic numbness in his arms and hands, and numbness in his feet when he walks. The examiner noted a benign tremor in the veteran’s hands and feet, worse with use. Hypesthesia was observed in the distal two-thirds of the left lower leg and foot, and of the distal one-quarter of the right lower leg. The examiner diagnosed peripheral neuropathy of the lower extremities, but found no gross neurological signs of peripheral neuropathy in the upper extremities. No active otitis was noted at the time of the veteran’s July 1996 VA general medical examination. The examiner noted that the veteran had atrial fibrillation, obesity and a history of sleep apnea. He was observed to have normal posture and gait, and to ambulate well. The report of the veteran’s July 1996 VA psychiatric examination noted that the veteran did not report any emotional difficulties, and that he indicated he felt he had adjusted well to life after his release from captivity. The examiner noted that the veteran’s sleep apnea was his main difficulty. The veteran reported that, in his view, his main source of disability at that time was his legs. The Axis I diagnosis was mild post-traumatic stress disorder. The veteran’s global assessment of functioning was listed as 65. Upon consideration of all the evidence of record, the Board notes that the veteran’s service-connected disabilities did not prevent him from remaining in his employment at a steel mill until a normal retirement age and he has been able to engage in normal post-retirement activities since that time. See Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). The Board further notes that the veteran’s primary health problems at the present appear to be cardiac disorders, sleep apnea, obesity and other conditions consistent with his advancing age. While the veteran asserts that he has great difficulty in walking, VA examiners have noted that he ambulates well. Therefore, the Board finds that the veteran’s service-connected disabilities do not render him individually unemployable. Thus, the veteran’s claim of entitlement to a total disability rating for compensation purposes based upon individual unemployability is denied. The evidence with regard to this matter is not so evenly balanced as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to a total disability rating for compensation purposes based on individual unemployability is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (1988). 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