92 Decision Citation: BVA 92-23533 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-10 732 ) DATE ) ) ) THE ISSUES 1. Entitlement to restoration of a rating in excess of 10 percent for bilateral defective hearing. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: William N. Butler, Attorney WITNESSES AT HEARING ON APPEAL The appellant and B. G. ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION This matter initially came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision of December 1988 from the Baltimore, Maryland, Regional Office (hereinafter RO). The veteran served from February 1944 to May 1945. The notice of disagreement was received in January 1989. The statement of the case was issued in February 1989. The substantive appeal was received in February 1989. The appeal was initially received by the Board in April 1989, and it was docketed in June 1989. The veteran was then represented before the Board by the Veterans of Foreign Wars of the United States. That organization submitted additional written argument to the Board in August 1989. By Board decision of October 1989, the case was Remanded to the RO for further development of the medical evidence of record, to include a special pulmonary examination. The requested examination was conducted in March 1990. A supplemental statement of the case was issued in June 1990. The case was returned to the Board and was redocketed in September 1990. By Board decision of November 15, 1990, the veteran's appeal for restoration of a rating in excess of 10 percent for bilateral defective hearing and his appeal for a total disability rating based on individual unemployability due to service-connected disabilities were denied. In that decision, the Board noted that the veteran had further raised a claim that a reduction of a total schedular rating to a combined schedular rating of 90 percent by rating decision of March 1988, based on clear and unmistakable error in the computation of the combined rating in previous rating actions, was improper. That issue was not then in appellate status and was referred to the RO for appropriate disposition. The veteran subsequently initiated a timely appeal of the Board decision of November 15, 1990, to the United States Court of Veterans Appeals (hereinafter the Court). In an order dated December 30, 1991, the Court remanded the case to the Board for compliance with its decision requiring the Board to set out reasons and bases for its decisions. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). With regard to the appeal for restoration of a rating in excess of 10 percent for bilateral defective hearing, the cited Order further directed the Board to follow the Court's decision in Fugere v. Derwinski, 1 Vet.App. 103 (1990). This decision is entered in compliance with the Order of the Court. The veteran, accompanied by a witness and by his representa- tive, appeared at a hearing before a Member of the Board in August 1992. At a prehearing conference, the veteran's representative again raised the issue of entitlement to restoration of a total schedular rating. Testimony and argu- ments on that issue (in the context of the reduction to a 90 percent combined schedular rating being based on the reduction of the schedular rating for defective hearing from 20 percent to 10 percent) were accepted at the hearing. On close review of the veteran's claims folder subsequent to the hearing, it became apparent that the reduction from a 100 percent combined schedular rating to a 90 percent combined schedular rating by rating decision in March 1988 was based on a finding of clear and unmistakable error in the computation of the combined schedular rating and that the reduction in the evaluation of the hearing loss did not affect the combined schedular rating. The matter of whether the reduction of the veteran's combined schedular rating from 100 percent to 90 percent was proper has not been developed for appellate consideration and is not so intertwined with the other issues before us that it must be addressed at this time. In light of this and the request of the veteran's representative for an expeditious handling of this case, it is referred to the RO, once again, for appropriate action. However, we would be remiss in our "duty to assist" if we did not mention at this time that the questions raised in the matter of the reduction of the schedular rating are controlled by the provisions of 38 C.F.R. §§ 3.105, 4.25, 4.26 (1991). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in not granting restoration of a rating in excess of 10 percent for bilateral defective hearing because his hearing acuity has not improved and the evaluation of his bilateral defective hearing should not have been reduced. It is further contended that the RO erred in denying a total disability rating based on individual unemployability due to service- connected disabilities. It is contended that the veteran's only work experience is in manual labor, and that his service-connected disabilities prevent him from engaging in any substantially gainful employment. DECISION OF THE BOARD In reaching its determinations, the Board has reviewed and considered all evidence and material of record incorporated in the veteran's claims file in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991). For the reasons and bases hereinafter set forth, it is the decision of the Board that the evidence of record supports restoration of a 20 percent evaluation for bilateral defective hearing. For the reasons and bases hereinafter set forth, it is the decision of the Board that the evidence of record supports a grant of a total disability rating based on individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. Clinical findings obtained on Department of Veterans Affairs (hereinafter VA) audiological evaluation conducted in May 1988 would not have warranted reduction of the 20 percent disability evaluation for bilateral defective hearing under criteria in effect prior to December 18, 1987. 3. Service connection is in effect for nonunion of the head of the right humerus, currently evaluated as 60 percent disabling; residuals of a pleural cavity injury, currently evaluated as 40 percent disabling; residuals of injury to Muscle Group III, right, currently evaluated as 30 percent disabling; residuals of injury to Muscle Group II, left, currently evaluated as 20 percent disabling; bilateral defective hearing, currently evaluated as 20 percent disabling; and otitis media, currently evaluated as noncompensably disabling. His combined service-connected disability rating, with consideration of the bilateral factor, is 90 percent from June 1988. 4. The veteran's service-connected disabilities preclude his engaging in all forms of gainful employment in view of his education and work experience. CONCLUSIONS OF LAW 1. Restoration of a 20 percent disability evaluation for bilateral defective hearing is warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85 and Part 4, Code 6289; effective prior to December 18, 1987. 2. The veteran meets the requirements for a total disability rating based on individual unemployability due to service-connected disabilities. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds initially that the appellant's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, they are not inherently implausible. We also find that the facts relevant to the issues on appeal have been properly developed and that the statutory obliga- tion of the VA to assist the appellant in the development of his claims has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). On appellate review, we see no areas in which further development might be fruitful. 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 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Evaluations for loss of hearing acuity are based upon the results of modern and scientific testing at approved facilities. This testing is performed under controlled conditions to measure the degree of organic hearing impairment and the results of that testing are then compared to the schedular criteria which are designed to reflect, as nearly as possible, the average functional impairment due to the hearing loss in everyday situations. Evaluations of bilateral hearing loss range from noncompen- sable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of Department of Veterans Affairs regional office or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Codes 6277 to 6297; effective prior to December 18, 1987. A report of VA audiological evaluation conducted in June 1971 disclosed speech reception thresholds of 44 decibels in the right ear and 46 decibels in the left ear, while speech discrimination was 92 percent in each ear. These findings are consistent with a level "C" hearing acuity in the right ear and a level "D" hearing acuity in the left ear. Under applicable schedular criteria in effect prior to December 18, 1987, these findings on audiological evaluation warranted assignment of a 20 percent evaluation under 38 C.F.R. § 4.85, Part 4, Code 6289. On a VA audiological evaluation in May 1988, pure tone thresholds, in decibels, were as follow: Hertz 1,000 2,000 3,000 4,000 Average Right 65 65 60 60 63 Left 70 60 65 75 68 Speech audiometry revealed speech recognition ability of 70 percent in the right ear and of 84 percent in the left ear. Under applicable schedular criteria which became effective December 18, 1987, these findings are consistent with a level V hearing acuity in the right ear and a level III hearing acuity in the left ear, and would warrant an evaluation no higher than 10 percent for bilateral defective hearing. This, then, was the basis for the reduction in the evaluation for the veteran's service-connected bilateral defective hearing from 20 percent to 10 percent by rating decision of December 1988. However, in Fugere v. Derwinski, 1 Vet.App. 103 (1990), the Court determined that, despite adoption of new rating criteria, the VA could not reduce a veteran's disability compensation if there had not been any change in his condition or disability because VA had not entered a substantive change to the Department's Adjudica- tion and Procedure Manual, M21-1, in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 552(a)(1) and 553. Fugere is a precedential decision of the Court and this case has been remanded by the Court for revision in accordance with the guidelines set by the Court in Fugere. Based upon the foregoing, the Board finds that restoration of the prior 20 percent evaluation for bilateral defective hearing is required. The Board has also carefully considered the veteran's claim for a total disability rating based on individual unemploy- ability due to service-connected disabilities. It is the established policy of the 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. Total disability ratings for compensation purposes 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. Part 4, § 4.16. Age may not be considered as a factor in evaluating unemployability by reason of service-connected disability. 38 C.F.R. Part 4, § 4.19. On VA Form 21-8940, submitted in November 1988, the veteran reported that he had a high school education and long-term experience as a warehouseman and forklift operator at a State agency. He indicated that he last worked in December 1986, and that he had not tried to obtain employment since that time. Service connection is in effect for nonunion of the head of the right humerus, currently evaluated as 60 percent disabling; residuals of a pleural cavity injury, currently evaluated as 40 percent disabling; residuals of injury to Muscle Group III, right, currently evaluated as 30 percent disabling; residuals of injury to Muscle Group II, left, currently evaluated as 20 percent disabling; bilateral defective hearing, currently evaluated as 20 percent disabling; and otitis media, currently evaluated as noncompensably disabling. His combined schedular dis- ability rating is 90 percent from June 1988. VA disability compensation evaluations were conducted in May and June 1988 and in January, February, and March 1990. The report of VA examination in June 1988 cited the veteran's complaints of chest and right shoulder pain during inclement weather, limitation of right shoulder motion, and diminished grip strength in both hands. Physical examination disclosed a well-healed, nontender, 4-inch scar of the mid-deltoid muscle of the right shoulder and a nontender, adherent, 8-inch left subcostal scar which is affixed to the underlying rib cage. Circumferential measurement disclosed a 1-inch atrophy of the right upper arm and a 1/2-inch atrophy of the right forearm as compared to the left. Abduction of the arms was limited to 45 degrees on the right, while full abduction of 150 degrees was demonstrated on the left. Forward elevation was limited to 45 degrees on the right, but was accomplished to 150 degrees on the left. Supination and pronation of the right forearm were a full 80 degrees on the right, but limited to 45 degrees in either direction on the left. Internal and external rotation of the left shoulder was limited to approximately 5 degrees in both directions, while the same motions were unrestricted on the right. Anteroposterior and lateral compression of the rib cage caused mild discomfort in the left lower ribs. X-ray examination of the chest disclosed deformity of the anterior ends of the left 6th and 7th ribs, consistent with old fractures. Small rounded lucencies were seen within the head of the left humerus of unknown etiology, but suggestive of drill holes or cystic degeneration. The right shoulder was considerably deformed, with bone loss of the head of the right humerus, areas of cystic degeneration, spurring of the apposing margins of the glenohumeral joint, and deformity of the glenoid fossa of the right scapula, thought to be post-traumatic in nature. The report of VA pulmonary evaluation conducted in January, February and March 1990 cited the veteran's complaints of increasing shortness of breath. Physical examination disclosed a surgical scar on the left chest wall under the left breast. His lungs were clear to auscultation and percussion. The initial diagnoses were status post gunshot wound, chest, and dyspnea. Pulmonary function tests on February 10, 1990, were within the range of normal, while a repeat pulmonary function test on February 15, 1990, reportedly disclosed essentially normal spirometry. A third pulmonary function test on February 27, 1990, was likewise normal. X-ray examination disclosed that the lungs were clear of active pathology. A summary of the examination reflects normal pulmonary function tests, normal chest X-ray, and normal arterial blood gases. It was indicated that the veteran's dyspnea complaints were unrelated to his primary pulmonary problem. At a hearing in August 1992, the veteran and his stepson testified extensively regarding the impact of his service- connected disabilities on his employment and regarding the circumstances of the termination of employment. Based on this testimony and the medical and other evidence of record, the Board concludes that the veteran's service-connected disabilities are currently productive of such impairment as to preclude all forms of gainful employment in view of his education and work experience. Accordingly, the Board finds that a total disability rating based on individual unemploy- ability due to service-connected disability is warranted. ORDER Restoration of a 20 percent evaluation for bilateral defective hearing and a total disability rating based on individual unemployability due to service-connected disabilities are granted, subject to the regulations governing the award of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * GEORGE R. SENYK BRUCE E. HYMAN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) 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.