92 Decision Citation: BVA 92-20636 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-23 560 ) DATE ) ) ) THE ISSUE Entitlement to a total rating based on individual unemployability, due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran had recognized guerrilla service in the Philippines from March 1945 to April 1946. In a decision by the Board of Veterans' Appeals (BVA) entered on November 29, 1990, increased ratings for residuals of a right pleural cavity injury, residuals of a shell fragment wound of the right chest and back, and a shell fragment wound scar of the left scapular region, as well as a claim for entitlement to a total rating based on individual unemployability, due to service-connected disabilities, were denied. The BVA decision was appealed to the United States Court of Veterans Appeals, hereinafter the Court, which affirmed the denial of increased ratings for the veteran's service-connected disabilities, and remanded the issue of the veteran's entitlement to a total rating based on individual unemployability, due to service-connected disabilities, to BVA for compliance with the "reasons and bases" requirement outlined in Gilbert v. Derwinski, 1 Vet.App. 49 (1991) and Hyder v. Derwinski, 1 Vet.App. 221 (1991), and for consideration of 38 U.S.C. §§ 1155, 5107 (1992); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, and 4.16(b) (1991), and the doctrine of reasonable doubt. The Court found, in part, that the BVA's statement in its November 1990 decision that, "(w)hile the veteran might not be able to engage in any heavy manual labor, he may be able to perform duties which are sedentary and not of a strenuous nature," was unsupported by adequate reasons or bases, considering the veteran's former occupation as a farmer, his educational level, and the job opportunities of a sedentary nature available in the Philippines. [citation redacted]. Only the issue identified on the title page of the instant decision is properly before BVA for review at this time. All other matters, to include the issue of the veteran's entitlement to compensation from the Department of Veterans Affairs (VA) for loss of use of the right ribs, with deformation of the spinal cord, are specifically referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in essence, that multiple service-connected disabilities permanently preclude him from engaging in any substantially gainful employment. It is not felt that the veteran has the physical capabilities to reenter the competitive labor market, considering his past experience as a farmer and limited educational background. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C. § 7104 (1992) and upon review and consideration of all evidence and material of record in the veteran's claims folder, and for the following reasons and bases, it is the decision of BVA that a preponderance of the evidence is against the veteran's claim of entitlement to a total rating based on individual unemployability, due to service-connected disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected disabilities consist of a pleural cavity injury on the right with encapsulated pleural effusion, residuals of a shell fragment wound of the right chest and back, and a scar from a shell fragment wound of the left scapular region, for which a combined rating of 50 percent has been in effect since 1946. 3. The service-connected disablement of the veteran is not of such a nature and severity as to preclude him from performing all forms of substantially gainful employment. 4. An exceptional or unusual disability picture with respect to the veteran's service-connected disorders is not shown to be present. CONCLUSION OF LAW The criteria for assignment of a total rating based on individual unemployability, due to service-connected disabilities, have not been met. 38 U.S.C. §§ 1155, 5107 (1992); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.16, and Part 4 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, we find that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C. § 5107(a). That is, we hold that he has presented a claim which is plausible. As well, we are satisfied, following a review of the record, that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case to the RO for additional action. Accordingly, VA is found to have no further obligation to assist the veteran in the development of facts pertinent to this claim. 38 U.S.C. § 5107(a). Some of the basic facts are not in dispute. Service connection has been established for a pleural cavity injury on the right, with encapsulated pleural effusion, evaluated as 40 percent disabling since January 1955; residuals of a shell fragment wound of the right chest and back, evaluated as 20 percent disabling since April 1946; and a scar from a shell fragment of the left scapular region, evaluated as noncompensable since January 1955. A combined schedular disability evaluation of 50 percent has remained in effect since April 1946. Facts which remain in dispute will be discussed below. 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 as 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. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in [38 C.F.R. § 4.16(a)]. 38 C.F.R. § 4.16(b). Age may not be considered as a factor in evaluating service connected disability and unemployability, associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (1991). In this instance, while there is one service-connected disability ratable at 40 percent under the VA's Schedule for Rating Disabilities, there is not sufficient additional disability to bring the combined rating to 70 percent or more. Hence, the disabilities at issue are not sufficiently severe as to satisfy the threshold entitlement requirements of 38 C.F.R. § 4.16(a). Considered on that basis alone, the benefit sought must be denied. Had the percentage criteria of 38 C.F.R. § 4.16(a) been met, the question of whether the veteran was able to secure and follow a substantially gainful occupation by reason of his service-connected disabilities would be for consideration. It is of note, in this regard, that the VA's Veterans Benefits Administration Manual M21-1, paragraph 50.55(b), defines substantially gainful employment as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." In assessing the veteran's ability to function within a work setting, considering only his service-connected disorders, it is noted that his prior work experience was as a farmer and laborer and that he reportedly is without any formal education. In a VA application for total disability benefits filed in 1981, the veteran reported that he previously had been involved in employment activities involving the piling and unpiling of items of construction and supply, loading and unloading cargo from trucks, use of tools, digging of ditches, and other manual labor. It was therein set forth that he had become totally disabled 20 years prior thereto, although certified birth certificates prepared for several of the veteran's children from 1961 to 1970 identify the veteran's usual occupation as "farmer" or "farming." This objective evidence is found by the Board to be more credible than the veteran's self-serving statements that he is precluded from substantially gainful employment by reason of his service connected disorders, made in connection with his claim for increased monetary benefits. As to the severity of the veteran's service-connected disorders, service medical records indicate that he sustained a penetrating wound of the chest wall and pleural space at the level of the fourth rib on the right in May 1945. A right pneumothorax and pulmonary abscess of the right middle lobe followed. Multiple surgical procedures were necessitated for management of the right chest wound and its effects. The veteran was initially examined by VA in February 1950, when it was noted that the left chest was more prominent than the right. The right shoulder was lower than the left. There was a 2- by 1-inch scar at the level of the fifth rib on the right, which was slightly depressed, nontender, and nonadherent. There was an elevated scar of the right interscapular region at the level of the fourth dorsal spine, three-eighths of an inch in diameter, which was nontender and nonadherent. At the interscapular border of the right scapula, there was an additional scar, which was irregular, nontender, and nonadherent. Other scars were apparent over the superior aspect of the left scapula at the level of its spinous process. One such scar was near the acromial process; it was depressed, slightly adherent, and nontender. The other was near the interscapular border, and it was depressed, nontender, and nonadherent. There was no evidence of functional disability of either shoulder joint. There was increased vocal fremitus of the right upper lung, with impaired resonance over the same area. Upon auscultation of the chest, cavernous breath sounds on the right and broncho-vesicular breathing were present. X-ray films of the chest identified an old encapsulated pleurisy representing an empyema of the right hemithorax, with extension into the posterior thoracic wall. Osteitis of the ribs was visualized, as was the presence of multiple metallic foreign bodies, the largest of which was 3.5 by 1.2 centimeters. The dorsal spine was markedly concave to the right. The diagnoses were of residuals of a shrapnel wound of the anterior chest and back involving healed scars; old encapsulated pleurisy representing an empyema of the right hemithorax; multiple metallic foreign bodies with osteitis of the ribs; and injury to Muscle Groups I, II, III, IV, XXI, with deformity of the left chest. Medical assistance was received by the veteran from a private physician in 1954, at which time examination revealed scarring of the posterior and anterior aspects of the trunk. Other findings disclosed that the veteran reportedly became asthenic and coughed on slight exertion. There was a discernible depression of the right upper chest and the right shoulder was noted to fall in semi-permanent posture much below the normal shoulder line. In the opinion of the physician, the veteran appeared undernourished, anemic, and complaining of insomnia of a recurrent type, due to dull pain of the right chest. X-ray films of the chest were noted to identify a complete opacity of 1-inch diameter around the perihilar region. On VA medical examination in April 1955, the veteran complained of occasional chest pain, dyspnea on slight exertion, and a tingling sensation in the area of scarring. Physical findings included a nondepressed, nonadherent, nontender scar of the right anterior chest wall, without impaired movement of the right shoulder or hip. The contours of the thorax were unequal, and there was an elevation of the left hemithorax and flattening of the right anterior chest, together with a lowering of the right shoulder. Expansion was limited on the right, with there being impairment of resonance and diminished breath sounds of the lower half of the right lung area. There was also noted to be a depressed, slightly adherent, and nontender scar at the outer third of the spine of the left scapula. Also shown was a slightly adherent, depressed, and nontender scar 2 inches medial to the left scapular scar, which was the alleged point of extraction of a shell fragment. There was no noted impairment of function of the left shoulder, although the veteran complained of a tingling sensation during cold weather. X-ray films of the chest disclosed encapsulated pleural effusion, calcified pleural thickening, and metallic foreign bodies of the lungs and abdomen. On private medical examination in July 1989, the veteran's primary complaint was of worsening dyspnea associated with chest and back pain, even on slight physical exertion. The right chest was found to be markedly deformed; the ribs were depressed and there was lowering of the shoulder. A depressed and tender scar was noted to be located beside the right nipple, with there being a 1- by 2-centimeter scar of the right back, beside the vertebral border of the scapula. Two scars of the left shoulder were found to be adherent to underlying bone. There was decreased expansion of the chest on the right, with dull percussion and decreased breath sounds. X-ray films of the chest showed that the right lung was small in volume. A pleural plaque was noted in the lateral aspect of the right hemisphere. The right hemidiaphragm was elevated, and the left lung was hyperaerated. There were at least two opaque densities noted at the right lower hemithorax, probably retained foreign bodies. The diagnoses were of residual scarring of the right chest secondary to a penetrating shrapnel wound, loss of volume of the right lung, right pleural plaque with compensatory hyperaeration of the left lung, rule out fractured right ribs, retained foreign bodies of the right lower hemithorax, right chest neuritis secondary to trauma, residual scars of the left shoulder due to shrapnel wounds, and left shoulder neuritis secondary to trauma. On VA medical evaluation in October 1989, the veteran noted complaints of chest and shoulder pain and occasional dyspnea. Inspection of the chest showed incomplete expansion of the right side of the chest. There was diminished vocal fremitus over the right upper lobe with a dull percussion note and hyperresonance over the right lower lobe and the left lung. There were diminished breath sounds over both lung fields, without rales or wheezing. On inspection of the chest, there was a scar of the right chest which was slightly depressed, slightly adherent, and nontender. It was found to be healed. Indicia of muscle injury involving Muscle Groups II and XXI were in evidence, with probable involvement of the pleural cavity. With respect to the left shoulder, there was a healed scar at the outer third of the spine of the left scapula, approximately 2 inches from the acromion. It was depressed, slightly adherent, and nontender. There was also noted to be a scar 2 inches medial to the first scar, which was depressed, slightly adherent, and nontender. Injury to Muscle Group I was found to be present. X-ray films of the veteran's chest disclosed probable atelectasis with pleural calcification of the entire right upper lobe, pulmonary infiltrations of the right mid-lung, compensatory emphysema of the right middle lower lobe with pulmonary emphysema of the left lung, probably compensatory as well. There was also noted to be a metallic foreign body, probably in the liver. X-ray films of the shoulders were consistent with the presence of osteoarthritis of both acromioclavicular joints. The left scapula was essentially negative. Neurological examination was performed, findings from which identified no evidence of neurological deficit. In the neurologist's opinion, the veteran's gait, movements, and muscle status, to include strength, tone, volume, tenderness, and fibrillations, were normal. Neither examiner uncovered any objective data confirming the presence of fractured ribs or neuritis of the chest or shoulder, as had been noted by the veteran's private physician in July 1989. Recent medical data pertaining to service-connected disabilities outline the absence of normal contours of the veteran's chest, as well as an unevenness in the height of the veteran's shoulders, retained foreign bodies, and injuries to several muscle groups. However, there is not shown to be any limitation of motion or significant impairment of function in either of the affected areas, nor is there shown to be impaired muscle strength, tone, or volume. There is evidence of slightly depressed and adherent scarring, which is productive of only occasional pain and tingling. Also indicated are resultant lung-related difficulties, to include probable atelectasis, pleural calcification and infiltration, and emphysema. Yet, the veteran's inability to expand completely the right side of his chest, and the other lung abnormalities in evidence are chiefly manifested, in subjective terms, by complaints of occasional dyspnea on exertion and chest discomfort. While there undoubtedly has been some reduction in the veteran's ability to breathe, the resulting lung impairment, by itself or in combination with other restrictions imposed by other components of service-connected disorders, does not effectively remove the veteran from the competitive labor market. We are unable to conclude that the chest and shoulder pain, painful scars, and impaired breathing capacity experienced by the veteran as a result of his service-connected disabilities render him unable to perform any type of gainful work activity. The nature of the veteran's previously undertaken vocational pursuits, when viewed together with his limited educational background, would certainly limit him to not more than unskilled work. Still, the medical data of record are not reflective of functional limitations which would prohibit the sustained and satisfactory performance of unskilled work activity entailing only a light or sedentary level of exertion, provided that such work was performed in a setting free of pollutants or other agents which might unduly aggravate the veteran's respiratory problems. Otherwise, the veteran is, in our estimation, fully capable of the minimal amount of walking, standing, lifting, and carrying, as well as the other exertional activities, required of sedentary work. In addition, it is pertinent to note that the service connected disabilities have remained at a static level since the mid-1950's. There is simply no evidence that any of the disorders has required medical treatment or hospitalization since then. Moreover, the veteran was able to work as a farmer for many years with the same level of disability he has now. There is no credible evidence that he has attempted to seek or retain gainful employment, without success, due to service connected disability as noted above, it must be emphasized that advancing age may not be the basis of a grant of a total disability rating. 38 C.F.R. § 4.19. Under the governing law and regulations, the availability of work in the Philippines, for which the veteran is physically and mentally qualified, is not a determinative consideration as to whether the veteran is entitled to the benefit sought; rather, the focus here is whether the veteran retains the physical and mental capabilities to perform gainful work activity of any type. Similarly, the rate of unemployment in any given locale of the Philippines is not a matter that has any bearing on the issue presented. The aforementioned may be matters for appropriate consideration in cases pending before the Social Security Administration in which claimants are seeking disability-related benefits from that agency. See Moore v. Derwinski, 1 Vet.App. 356 (1991); Ferraro v. Derwinski, 1 Vet.App. 326 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164 (1991). For the reasons and bases set forth above, a preponderance of the evidence is found to be against the veteran's claim of entitlement to a total rating based on individual unemployability, due to service-connected disabilities, in the absence of evidence satisfying the threshold requirements of 38 C.F.R. § 4.16(a). The record does not demonstrate an approximate balance of positive and negative evidence as to this matter, so as to warrant the invocation of the doctrine of affording the veteran the benefit of any existing doubt. As well, we are convinced that the veteran is not precluded from performing substantially gainful employment as a result of service-connected disabilities, considering his current functional abilities, previous occupational experience, and educational background. 38 C.F.R. § 4.l6(b). Again, the positive and negative evidence with respect to the veteran's employability is not in an approximate balance, such as would warrant resolution of this point in the veteran's favor, pursuant to 38 U.S.C. § 5107(b). In that regard, we observe that no examining or treating physician or other individual, other than the veteran, has offered an opinion that the veteran is unemployable solely because of service-connected disabilities; available medical data clearly indicate that he is not unemployable. Moreover, an exceptional or unusual disability picture involving such factors as a marked interference with employment or frequent periods of hospitalization is not shown to be present, and thus, an extraschedular evaluation of total disability is not felt to be in order. 38 C.F.R. § 3.321(b). In all, the veteran's entitlement to the benefits sought on appeal is not demonstrated by the record, and to that extent, the contentions and allegations set forth by the veteran are not supported by the great weight of the evidence of record. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, and 4.16. ORDER A total rating based on individual unemployability, due to service-connected disabilities, is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 NANCY R. ROBIN B. KANNEE * (MEMBER TEMPORARILY ABSENT) *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992), 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.