Citation NR: 9621060 Decision Date: 07/29/96 Archive Date: 08/06/96 DOCKET NO. 94-25 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for defective vision. 2. Entitlement to an increased rating for neuropathy of the right brachial plexus, with involvement of the median and ulnar nerve roots, currently evaluated as 50 percent disabling. 3. Entitlement to an increased rating for residuals of a fracture of the greater tuberosity of the right shoulder, with non-union and arthritis, currently evaluated as 20 percent disabling. 4. Entitlement to a total rating based on individual unemployability, due to service-connected disabilities. REPRESENTATION Appellant represented by: Catholic War Veterans of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from November 1945 to January 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating determinations entered in February and April 1994 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denying various claims for benefits. In December 1994, the veteran was afforded a hearing before the RO’s hearing officer, at which time testimony in support of the veteran’s entitlement to the benefits sought was set forth. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in substance, that he sustained an injury to his eyes in an inservice motor vehicle accident in October 1948. At that time, he reportedly experienced blurred vision and diplopia and such symptoms were the same as those following a cerebral vascular accident occurring in late 1992. Ever since the inservice jeep accident, he has required use of eyeglasses to improve his visual acuity. Increased ratings for right arm and shoulder disorders are reportedly warranted on the basis of a progressive and substantial loss of strength, constant pain, and the need to move his upper arm every hour or so to reduce his pain level. The combination of the veteran’s service- connected disabilities is noted to result in his unemployability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 a preponderance of the evidence is against the veteran’s claims for service connection for defective vision, for increased ratings for neuropathy of the right brachial plexus with median and ulnar root involvement and residuals of a fracture of the greater tuberosity of the right shoulder, and for a total rating based on individual unemployability, due to service-connected disabilities. FINDINGS OF FACT 1. Inservice visual dysfunction as a result of a motor vehicle accident in October 1948 is not shown to have been other than acute and transitory. 2. Any diminution in visual acuity during service is not demonstrated to have been the result of anything other than refractive error. 3. The veteran’s service-connected neuropathy of the right brachial plexus is currently manifested by atrophy and weakness of muscles of the right upper extremity and associated pain, but the disorder is not manifested by complete paralysis of all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers, or by a substantial loss of use of the hand. 4. The veteran’s service-connected residuals of a fracture of the greater tuberosity of the right shoulder are currently manifested by subjective complaints of progressive pain and related fatigue of right arm muscles, and objective findings of a well-healed, non-adherent scar, pain on motion, limited motion, and osteopenia with arthritic changes by x-ray. Frequent episodes of humeral dislocation and guarding of all arm movements are not indicated. 5. The veteran has a college education and prior work experience as a private consultant, having reportedly become too disabled to work in late 1992. 6. A combined schedular disability evaluation of 60 percent is in effect, but the service-connected disorders are not shown to be of such a nature and severity as to preclude the performance of all forms of substantially gainful employment, considering the veteran’s educational and vocational background. CONCLUSIONS OF LAW 1. Defective vision was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 4.9 (1995). 2. The criteria for an increased rating for neuropathy of the right brachial plexus, with involvement of the median and ulnar nerve roots, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.124a, Code 8512 (1995). 3. The criteria for an increased rating for residuals of a fracture of the greater tuberosity of the right shoulder, with non-union and arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a , Code 5010-5202 (1995). 4. The criteria for the assignment of a total rating based on individual unemployability, due to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, it is found that the veteran’s multiple claims for benefits are “well-grounded” within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has presented claims which are plausible. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). As well, the Board is 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. In reference to the challenge to the statements concerning right hand strength he reportedly made to a VA physician in October 1993, at the time of a medical examination, it is apparent that the veteran was afforded additional VA medical evaluations in July 1994 and that he was afforded the opportunity to present sworn testimony regarding his right arm strength and other manifestations at a RO hearing in December 1994. That being the case, further action is deemed to be unnecessary and VA is found to have met its statutory obligation to assist the veteran in the development of all relevant facts involving his claim. 38 U.S.C.A. § 5107(a). I. Service Connection for Defective Vision The record reflects that the veteran entered service with uncorrected visual acuity of 20/20, bilaterally, as noted on an enlistment medical examination in November 1945. In October 1948, while stationed in Peru, the veteran was involved in a motor vehicle accident and was thrown from the jeep in which he was a passenger and struck his head. Among his injuries were a fractured skull with dilatation of the right pupil, with manifestations of disorientation for a five-day period and a two week complaint of double vision. In mid-November 1948, the veteran was transferred to the Fort Clayton Station Hospital with a complaint, among others, of blurring of vision on distant vision only. The admission diagnosis was of observation for damage to the right optic nerve and right shoulder, but such diagnosis was replaced by others not involving any notation of eye-related pathology. By November 22, 1948, the veteran’s diplopia and headaches had completely disappeared. Service medical records indicate that the veteran underwent an eye evaluation in September 1950, when visual acuity of 20/25 and 20/20, correctable to 20/20 bilaterally, was shown. It was at that time that eyeglasses were prescribed. On the occasion of a separation medical examination in November 1950, uncorrected distant vision of 20/30 of the right eye and 20/20 of the left eye, correctable to 20/20, bilaterally, was present. No other eye abnormality was in evidence other than a chalazion of the right upper eyelid. A separation medical evaluation performed in November 1953 disclosed uncorrected visual acuity of 20/40 on the right and 20/20 on the left; no specific eye abnormality was otherwise indicated. Corrected vision and hypermyopia were noted in the report of such examination under the section pertaining to medical history. A Physical Evaluation Board examination in November 1953 identified no eye abnormality and the veteran’s discharge from military service was subsequently effected on the basis of disabilities other than that involving his eyes. Medical treatment of either eye is not shown after service until 1992, when the veteran was seen on an outpatient basis due to a complaint of double vision preceded by blurring. Examinations revealed the existence of a cataract, glaucoma, and intermittent diplopia. A period of hospitalization followed in December 1992 due to a cerebral vascular accident involving the left posterior cerebral artery, and secondary right homonymous hemianopsia. VA eye examination in October 1993 yielded diagnoses of refractive error-correctable to 20/20 in each eye; status postoperative cerebral vascular accident with associated right homonymous hemianopsia; cataract of the left eye, not visually significant; increased cupping of the optic nerve, with normal intraocular pressures and use of medication, associated with probable glaucoma; convergence insufficiency; and retinal holes of the right eyes, treated with laser therapy. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. When a condition is not found to have been chronic in service, then a showing of continuity of symptomatology after discharge is required to support a claim of entitlement to service connection. 38 C.F.R. § 3.303(b). Refractive error of the eye, as shown in service and confirmed by postservice testing, is not a disease or injury for which VA compensation is payable. 38 C.F.R. §§ 3.303(c), 4.9; see Parker v. Derwinski, 1 Vet.App. 522, 523 (1991) (noting that myopia is nearsightedness). In this case it is demonstrated that the veteran suffered a head injury in service with associated diplopia, but it is not shown that such injury resulted in chronic disability involving the eye. Use of eyeglasses is likewise not shown to have coincided with the 1948 mishap, but to have occurred initially approximately two years after such incident. Service records reveal that his complaints of double vision were short-lived and that no damage to the optic nerve was ever confirmed, with subsequent examination and testing in service showing no pertinent pathology of the eye. Similarly, there was no showing of eye pathology until approximately 38 years after the veteran’s discharge from military service. Evidence linking the cerebral vascular accident with hemianopsia, cataract, diplopia, glaucoma, and other abnormalities initially shown, beginning in 1992, to the veteran’s period of service is absent and no physician or other health professional has specifically linked any such pathology to the appellant’s active duty or any event thereof. Moreover, no physician has rendered an opinion that the diplopia suffered by the veteran in 1992 and thereafter was in any way related to the diplopia that followed the inservice mishap of October 1948. To that extent, the testimony of the veteran as to the similarity of the inservice and postservice symptoms is unsupported by competent evidence. For the reasons set forth above, it is concluded that the great weight of the evidence is against the veteran’s claim of entitlement to service connection for defective vision. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. II. Increased Rating: Neuropathy of the Right Brachial Plexus In the motor vehicle accident of October 1948 referenced above, the veteran sustained injury to the right brachial plexus and service connection has been established for the residuals of such injury under Diagnostic Code 8512 of the VA’s Schedule for Rating Disabilities. A 50 percent rating has remained in effect since February 1954 on the basis of severe incomplete paralysis of the lower radicular group affecting the veteran’s major extremity and is now protected. 38 U.S.C.A. § 1159; 38 C.F.R. § 3.951 (1995). The next higher rating applicable in this instance requires complete paralysis of all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers, with there being a substantial loss of use of the hand. 38 C.F.R. § 4.124a, Code 8512. Recently compiled medical findings in October 1993 and July 1994 reveal only some muscle atrophy of hand and arm musculature, and minimal weakness of finger, hand, and wrist muscles. Sensory deficits were noted in the ulnar nerve distribution; reflexes were symmetrical. Pain was noted upon testing movement against resistance and there was found to be less than full range of motion of the fingers. Not more than a mild muscle injury was found to be present, and significantly there was only a mild to moderate functional limitation in the activities of daily living resulting. The foregoing in no way establish the existence of complete paralysis of the hand muscles and some or all of the wrist and finger flexors, and substantial loss of use of the right hand. Accordingly, a rating in excess of the current, protected rating of 50 percent is not for assignment. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.124a, Code 8512 (1995). III. Increased Rating: Fracture of the Greater Tuberosity of the Right Shoulder By rating decision of the RO in July 1954, service connection for a fracture of the greater tuberosity of the right shoulder, with non-union and arthritis, was established. A 20 percent rating was at that time assigned under Diagnostic Code 5010-5202, effective from February 1954, on the primary basis of recurrent dislocation of the humerus (of the major extremity) at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level. The next higher evaluation, the 30 percent rating, requires, as applicable to the facts of this case, that there be frequent episodes of dislocation and guarding of all arm movements. 38 C.F.R. § 4.71a, Code 5202. Testimony of the veteran at the RO hearing in December 1994 was to the effect that such disability is primarily manifested by increasing pain of the right shoulder and resulting fatigue of the right arm. Nevertheless, records relating to outpatient treatment sought by the veteran in 1992, 1993, and 1994 are wholly negative for specific complaints of right shoulder and/or arm dysfunction. When examined by VA in October 1993, the veteran reported that the right shoulder did not give him much problem, except mechanically. At times, when elevating, abducting, or externally rotating the shoulder, he reportedly developed a catch in his right shoulder, and when placing his right hand behind his head, pain allegedly set in that required him to take the other hand to pull the right hand into normal position. Physical examination revealed a well-healed, non- adherent scar over the acromioclavicular joint with palpation of that area producing pain of 5/10. External rotation was to 75 degrees, internal rotation was to 85 degrees, and abduction and forward flexion were to 170 degrees. No atrophy or paresthesia was present. X-rays showed marked osteopenia with osteoarthritic changes at the glenohumeral joint. Despite a complaint of constant aching of the right shoulder when evaluated by VA in July 1994, findings were substantially the same as when examined in 1993, although there was noted to be marked tenderness to palpation of the right bicipital tendon on the more recent evaluation. Pertinent diagnoses in July 1994 were osteopenia of the right shoulder with some degenerative changes, and severe bicipital tendinitis on the right. As the foregoing studies show, evidence of frequent episodes of humeral dislocation and guarding of all movements of the right arm is lacking both from examining physicians and from the veteran himself. 38 C.F.R. § 4.71a, Code 5202. While he reports the presence of continuous pain, indicia of ankylosis of the scapulohumeral articulation or limitation of motion of the arm midway between the side and shoulder levels are not identified, such as would warrant an increased rating under alternate criteria. 38 C.F.R. § 4.71a, Codes 5200, 5201. As such, assignment of a schedular evaluation in excess of 20 percent is not found to be in order. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a , Code 5010- 5202 (1995). In reaching this decision the Board carefully considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, and the role that pain may play in the appellant’s disability. The veteran, however, is service connected for arthritis, and limitation of motion due to arthritis specifically includes the consideration of pain. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. As such, assigning an evaluation for pain under 38 C.F.R. §§ 4.40 or 4.45, as interpreted in DeLuca v. Brown, 8 Vet.App. 202 (1995), would violate the principle against pyramiding. 38 C.F.R. § 4.14 (1995). IV. Total Rating Based on Individual Unemployability 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. 38 C.F.R. § 4.16(a). 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. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75- 91 (O.G.C. Prec 75-91); 57 Fed.Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. 38 C.F.R. § 4.16(b). As noted in preceding paragraphs, service connection has been established for neuropathy of the right brachial plexus, evaluated as 50 percent disabling, and for residuals of a fracture of the greater tuberosity of the right shoulder, evaluated as 20 percent disabling. In addition, service connection is also in effect for a right temporal skull fracture, for which a 0 percent rating has remained in effect since February 1954. A combined schedular disability evaluation of 60 percent is currently assigned. See 38 C.F.R. § 4.25, Table I. According to the application for a total rating filed with the RO in August 1993, the veteran has a college education and past work experience during the period from 1985 to 1990 as a private consultant, earning gross wages as high as $3,500 monthly. Attempts to obtain other work as a consultant are noted to have been undertaken in 1990 and 1991. From the veteran’s own statements, he last worked on a full-time basis in December 1990, disability affected full time employment in December 1991, and he became too disabled to work in December 1992. The record reflects that the veteran was hospitalized in December 1992 due to the onset of nonservice-connected disability, specifically a cerebral vascular accident. As noted by the veteran’s attending physician from the service department, the cerebral vascular accident resulted in right homonymous hemianopsia that underwent no improvement. Such defect, according to the physician, limited the veteran’s ability to function outside of his home without care and assistance. Similarly, an examining neurologist entered an opinion in July 1994 that the veteran’s hemianopsia presented a severe enough impairment to render employability very questionable. It is clear, however, that the effects of the cerebral vascular accident, to include the hemianopsia, as well as all of the other nonservice-connected disabilities of the veteran, including defective vision and all other eye pathology, residuals of a previous myocardial infarction, pulmonary insufficiency with rounded opacity of the left hemithorax on x-ray, hypertension, and left elbow arthritis, are not for consideration in this matter where the focus is the effect of the service-connected disabilities, alone, upon the appellant’s employability. 38 C.F.R. § 3.341(a), see Blackburn v. Brown, 4 Vet.App. 395, 398 (1993). As such, the veteran’s contentions that he cannot perform previously attempted work as a consultant due to an inability to read or drive or be present in a crowd of people are not relevant to the adjudication of the issue in question, to the extent that those restrictions are attributable to nonservice-connected entities. No physician or other qualified professional has rendered an opinion that the veteran’s service-connected disabilities, alone, render him unemployable and the record does not otherwise document the presence of functional limitations imposed by service-connected disorders that would preclude the performance of all forms of substantially gainful employment. The combined disability evaluation of 60 percent is a recognition by VA that the service-connected disabilities make it difficult to obtain and maintain employment, but it is not dispositive of the question of whether this veteran has the physical capacities to perform in any work setting. Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). In this regard, the undersigned looked to the opinions of examining VA physicians to the effect that the brachial plexus injury is not more than mild in degree and productive of not more than mild to moderate functional limitations. Furthermore, no qualified medical professional has stated that service-connected disabilities in any way interfere with the appellant’s ability to read or drive or completely compromise any one or more capability of the veteran. It is acknowledged that severe bicipital tendinitis has been found to be present, as manifested by severe tenderness of the right bicipital tendon, but the frequency of shoulder dislocations, muscle guarding, limitation of motion, or other related defect is not shown to have warranted the assignment of more than a 20 percent rating in connection with the veteran’s current claim for increase. As well, the residuals of the inservice fractured skull have been rated as 0 percent disabling for more than forty years, and there is no competent evidence to suggest that a higher rating is warranted. In all, the record does not demonstrate the existence of service-connected disabilities of such a nature or severity as to prevent the veteran from engaging in some form of gainful work activity, particularly in light of the fact that he is in possession of a college degree and considerable occupational skills. Overall, a preponderance of the evidence presented in this matter indicates that the veteran is not entitled to a total rating based on individual unemployability, due to service- connected disabilities, and as such, the "benefit of the doubt" doctrine is inapplicable. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. ORDER Service connection for defective vision is denied. Increased ratings for neuropathy of the right brachial plexus, with involvement of the median and ulnar nerve roots, and for residuals of a fracture of the greater tuberosity of the right shoulder, with non-union and arthritis, are denied. A total rating based on individual unemployability, due to service-connected disability, is denied. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), 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). 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. - 2 -