Citation Nr: 0811897 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-07 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for heart disease. 2. Entitlement to service connection for cholecystitis and cholecystolithiasis, status post cholecystectomy. 3. Entitlement to an increased (compensable) evaluation for residuals of fracture, right 5th and 6th ribs, due to gunshot wound. 4. Entitlement to a total rating based on individual unemployabilty due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION As will be discussed further below, and as certified on numerous occasions since service, the veteran had honorable service with a recognized guerrilla unit from January 9, 1945, to January 31, 1946; and with the Regular Philippine Army from February 1, 1946, to March 1, 1946. Most documents in the file refer to the veteran's date of birth as being in September 1922, although the veteran stated in a written document in 1981 that he was born in January 1900. This appeal to the Board of Veterans' Appeals (Board) is from actions taken by the above Department of Veterans Affairs (VA) Regional Office (RO). Service connection is also in effect for residuals, injury to Muscle Groups II, III, and IV, right (major) chest, residuals of gunshot wound, rated as moderately severe injury, Muscle Group II, for which a 40 percent rating is now assigned; and degenerative joint disease, right shoulder, due to trauma, for which a 10 percent rating is now assigned. Those issues are not part of the current appeal. FINDINGS OF FACT 1. The appellant was not a prisoner of war (POW) for VA purposes. 2. The competent and probative evidence of record preponderates against a finding that the veteran has heart disease of service origin, or that any cardiovascular disorder was manifested during the first post-service year. 3. The competent and probative evidence of record preponderates against a finding that the veteran has cholecystitis and/or cholecystolithiasis, status post cholecystectomy, of service origin. 4. The veteran's residuals of fractures, 5th and 6th ribs, per se, are asymptomatic; the ribs have never been removed or resected and there have been no procedures such as a lobectomy, pneumonectomy, or thoracoplasty. 5. The veteran's service-connected disabilities alone do not prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The appellant does not meet the legal criteria for recognition as a former POW for VA purposes. 38 U.S.C.A. § 101(32) (West 2002 & Supp. 2007); 38 C.F.R. § 3.1(y) (2007). 2. An acquired cardiovascular disorder was not incurred in or aggravated by service, nor may in-service incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 3 Neither cholecystitis or cholecystolithiasis, status post cholecystectomy, was incurred in or aggravated by service, nor may in-service incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 4. The criteria for a compensable disability rating for the veteran's service-connected fracture of the 5th and 6th right ribs have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5297 (2007). 5. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all elements of a claim. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). The veteran filed his claim for increased compensation for rib fractures (and other disabilities) in September 1999, for TDIU in March 2001, and for service connection for heart and gallbladder disabilities in June 2003; ratings after each claim continued the denial of increased compensation including TDIU and denied service connection for heart and gallbladder disabilities. Throughout, extensive development was undertaken and correspondence sent to the veteran with regard the requirements to support his claims and related matters. He filed his notice of disagreement (NOD) as to the four issues herein concerned in September 2005. And the requirements, which have not changed in decades, for supporting his claim to POW status have been stated on numerous occasions since 1949. The VARO sent him explanatory letters, and an SOC and SSOCs were issued and additional correspondence was sent to the veteran, including a Dingess letter in March 2006. He timely filed a Substantive Appeal on a VA Form 9 in March 2006. In the aggregate, the Board finds that the RO has satisfied the duty to notify and assist under the VCAA. The Board finds that the content of letters and other communications complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Any other defect with respect to timing was harmless error. See Mayfield, supra. He was advised of his opportunities to submit additional evidence after which additional data was obtained and entered into the record. The Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He has submitted additional data, and has indicated that he has no other information or evidence to substantiate the claim. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. The notifications to the veteran in this case were entirely adequate to inform him, or any reasonable person for that matter, of what was required, and that he needed to provide evidence with regard to how his disabilities affect him in his everyday, daily life. There is no prejudicial error shown in this regard. In the aggregate, the veteran has demonstrated actual knowledge of and have acted on the information and evidence necessary to substantiate the pending claim. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of the current appeal. Neither has he suggested in any way that there is any prejudice due to a lack of proper VA notice or assistance. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development on this issue. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service and POW Status Numerous papers, processing affidavits, and similar documents, and copies thereof are in the file reflecting the nature of the veteran's service during World War II. Official certification was first issued by the Department of the Army in 1949, and has been reissued and clarified on several occasions since that time. An official Memorandum for the File, dated in January 2000, delineates the pertinent facts, and reflects that the veteran had honorable service with a recognized guerrilla unit from January 9, 1945, to January 31, 1946; and with the Regular Philippine Army from February 1, 1946, to March 1, 1946. His original application for VA benefits stated that he was inducted into U.S. Armed Forces, Far East (USAFFE), on December 18, 1941; that he was captured on December 28, 1941, held as a POW at Tarlac, and released on August 18, 1942; that he was a civilian engaged in farming from August 19, 1942, to September 11, 1942; that he was inducted into the military guerrilla forces on September 12, 1942, and processed on February 1, 1946. His name was not listed on POW microfiche records. The Memorandum cited the veteran's lack of providing POW support documentation, and noted that is period of incarceration predated his certified entry into active duty and thus did not qualify in any event. The veteran has often asserted that he was a POW. He argues that he was imprisoned at Camp O'Donnell, Capas, Tarlac, from December 18, 1941, to September 1, 1942. However, while such imprisonment is entirely possible, it does not impact on the veteran's having POW status for VA purposes. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. With regard to Philippine service, a service department determination as to an individual's military service shall be binding upon VA unless a reasonable basis exists for questioning it. 38 C.F.R. §§ 3.40, 3.41. Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding upon VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Manibog v. Brown, 8 Vet. App. 465 (1996); Young v. Brown, 4 Vet. App. 106 (1993). If the United States service department declines to verify the claimed service, the applicant's only recourse lies within the relevant service department, not VA. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The term "former prisoner of war" for VA purposes means a person who, while serving in the active military, naval, or air service, was forcibly detained or interned in line of duty by an enemy or foreign government, the agents of either, or a hostile force. 38 U.S.C.A. § 101(32); 38 C.F.R. § 3.1(y). VA will accept the findings of the appropriate service department that a person was (or was not) a POW during a period of war unless a reasonable basis exists for questioning it. 38 C.F.R. § 3.1(y). A Supplemental Memorandum was submitted for the file, dated in July 2000, after the veteran had provided statements with regard to persons who had been imprisoned along with him. That Memorandum noted that one of the men cited had been with him when injured, per a document from 1950; and that the other had been on the roster of independent guerrillas which was recognized only as of January 9, 1945. The Supplemental Memorandum concluded that the evidence did not support that the veteran had been a POW, and again noted that, in any event, his service was only from January 9, 1945, to March 1, 1946, that the alleged period of captivity predated that period by some considerable period of time (e.g., April, 9, 1942, to September 1942); that he had no certified USAFFE status; and that VA was bound by the service department certifications of his guerrilla service. III. Service Connection Claims A. Applicable Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including a organic heart or chronic gallbladder disease, may be presumed to have been incurred in service if they become manifest to a compensable degree within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Effective October 7, 2004, VA amended 38 C.F.R. § 3.309(c), pertaining to presumptive service connection for diseases specific to former prisoners of war, by adding atherosclerotic heart disease and its complications, including myocardial infarction, to the list of presumptive diseases. VA alonremoved the note in the 1993 version of 38 C.F.R. § 3.309(c) that the statutory term "beriberi heart disease" included ischemic heart disease in former prisoners of war who had experienced localized edema during captivity. VA explained that atherosclerotic heart disease encompasses ischemic heart disease. 38 C.F.R. § 3.309(c)). The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Board is not permitted to reach medical determinations without considering independent medical evidence to support our findings, and must cite to competent evidence of record to support such conclusions. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991), and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Similarly, it is well established that while someone who is a layperson is not considered capable of opining on matters requiring medical knowledge, they are permitted to provide observations. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, supra. However, as noted above, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of the proffered evidence of record as a whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein). The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons or bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). B. Factual Background and Analysis The veteran's service records show no sign of heart disease, beriberi or cholecystitis, cholecystolithiasis, or cholecystectomy, including on a discharge examination in January 1946, which showed normal abdominal viscera, normal cardiovascular system, and blood pressure of 112/70. Private treatment records from 1980 and VA examination in 1981 showed neither heart disease or cholecystitis (or related disability). On the latter examination, X-ray showed the heart as borderline in size. Recent private treatment records have referred to the veteran's having a diagnosis of ischemic heart disease. One private physician has reportedly treated the veteran for ischemic heart disease since 1994. Other recent private findings are of atherosclerosis of the aorta. In addition, one physician recently diagnosed angina pectoris and old myocardial ischemia. Private treatment records from 2004 also refer to the veteran's having cholecystitis with cholecystolithiasis. Another physician in 2004 noted that he had undergone a cholecystectomy due to gangrenous cholecystitis for which he was hospitalized in 2004. All in all, the competent and probative evidence of record preponderates against a finding that the veteran has either a heart disorder and/or cholecystitis due to cholecystolithiasis, status post cholecystectomy, of service origin, and such may not be presumed under any theory. Neither heart nor gallbladder disability was shown in service or for decades thereafter, and there is no competent evidence, to include a credible or competent medical opinion, to associate either with the veteran's service and/or his service-connected disabilities. In each instance, the evidence is not equivocal in that regard, and a reasonable doubt is not raised. IV. Increased Rating Claims A. Applicable Criteria As noted above, additional guidelines have recently been issued by the Court of Appeals for Veterans Claims with regard to increased ratings cases and mandatory notice, in Vazquez-Flores v. Peake, supra. Although further notice is not required in this case under Dingess, supra, on review of the file the Board finds that every effort has been made to inform the veteran as to what is required for increased compensation for the herein concerned disability; and he has affirmatively indicated by his actions and words that he fully comprehends what is required. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran's service-connected residuals of fractured right 5th and 6th ribs have been evaluated by analogy to the removal of ribs under Diagnostic Codes 5299-5297, under which a 10 percent disability rating is warranted for removal of one rib or resection of two or more ribs without regeneration. A 20 percent disability rating requires the removal of two ribs. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5297. The rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of the pleural cavity. (Note 1). Rib resection will be considered as rib removal in the case of thoracoplasty performed for collapse therapy or to accomplish obliteration of space, and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy, or the graduated ratings for pulmonary tuberculosis (Note 2). Pursuant to 38 C.F.R. § 4.16(a), 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: provided, that, if there is only one such disability, this 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. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As noted above, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent opinion, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinions of the chief legal officer of VA. 38 U.S.C.A. § 7104(c). The Board further observes that being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. 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 Van Hoose v. Brown, 4 Vet. App. 3 61, 363 (1993). It is also the policy of VA, however, 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. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the veteran's case, apart from any non- service-connected conditions and advancing age, which would justify a total rating based upon unemployability. Van Hoose, supra, at 363. In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated, in essence, that the unemployability question, that is, the ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job was realistically within the capabilities, both physical and mental, of the veteran. B. Factual Background and Analysis Post-service clinical records show no signs of rib removal at any time. On VA examination in August 2000, the residuals of the rib fractures were described as fully healed with deformity. He had some evidence of basal pleurodiaphragmatic adhesions without symptomatic complaints. Similar findings have been noted since by VA and private examiners. X-rays in 2004 showed haziness in the right lung base and blunting of the sulci. There was a notation of suspicious fracture of the 6th lateral rib on the right. The ribs or parts thereof have not been removed. Although there is some observable deformity, the fractures of the right 4th and 5th ribs are now well healed and without symptoms. These residuals of the in-service fractures do not closely approximate the removal of one rib or resection of two ribs without regeneration. Accordingly, a compensable disability rating is not warranted under DC 5297. In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court held that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. In this regard, the Board would note that the same shrapnel wounds that caused the rib fractures are also rated under residuals, injury to Muscle Groups II, III and IV, right (major) chest, residuals of gunshot wound, rated as moderately severe injury, Muscle Group II, for which a 40 percent rating is now assigned; and degenerative joint disease, right shoulder, due to trauma, for which a 10 percent rating is now assigned. Therefore, each and every component of his current aggregate residuals of the in- service injuries has been fully reflected and adequately compensated in the current ratings. The evidence is somewhat equivocal as to whether the veteran does or does not now work and/or whether he is able to do so. In any event, VA examiners in 2000 felt that he was hindered in many jobs which required ripping or lifting, could not do household chores, and had other limitations. Some of these circumstances are affected by his service-connected problems; others are not. On a recent VA examination, the veteran reported that he had worked as a security guard for a mining firm for 20 years, and had retired in 1984. Otherwise, he said that he had worked as a fisherman but no longer could do that work, and had become disabled for working in 1995. The veteran is at least 86 years of age and has numerous other organic, serious disabilities of non-service-connected origin which hinder his ability to work or engage in many other activities. In any event, he does not meet the scheduler criteria for a TDIU; and factually, it is not demonstrated that his service-connected disabilities alone are responsible for his lack of current work or inability to secure gainful employment. V. Extraschedular evaluation Under 38 C.F.R. § 3.321(b)(1), ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case represents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board finds that no exceptional circumstances in this case have been shown, or alleged, which would warrant referral for consideration of an extraschedular evaluation. ORDER Service connection for heart disease is denied. Service connection for cholecystitis and cholecystolithiasis, status post cholecystectomy, is denied. [Continued on next page] An increased (compensable) evaluation for residuals of fracture, right 5th and 6th ribs, due to gunshot wound, is denied. A total rating based on individual unemployabilty due to service-connected disabilities (TDIU) is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs