Gary v. Brown

7 Vet. App. 229, 1994 U.S. Vet. App. LEXIS 1005, 1994 WL 703034
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 14, 1994
DocketNo. 92-1483
StatusPublished
Cited by2 cases

This text of 7 Vet. App. 229 (Gary v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gary v. Brown, 7 Vet. App. 229, 1994 U.S. Vet. App. LEXIS 1005, 1994 WL 703034 (Cal. 1994).

Opinion

NEBEKER, Chief Judge:

The appellant, George A. Gary, appeals an August 31, 1992, Board of Veterans’ Appeals (Board) decision denying entitlement to a total disability rating for compensation based on individual unemployability (TDIU). For the following reasons, the decision of the Board is affirmed.

I. FACTS

The appellant served on active duty with the U.S. Air Force from 1951 to 1966. Record (R.) at 4. During his service, he sustained a head injury and a fractured pelvis in an automobile accident. As a result of the accident, he has a disfiguring facial scar and suffers from anxiety reaction with depression. He was awarded service connection and compensable ratings for the facial scar, anxiety, and fracture of the left pelvis with traumatic arthritis, all conditions which were determined by VA to have resulted from the in-service accident. He also received service connection without a compensable rating for, a hemorrhoidectomy, fistulectomy, and car-diomegaly (enlarged heart) with angina. R. at 118. The record reflects that he has a history of medical treatment for symptoms of anxiety, depression, headaches, insomnia, and chest pain.

In March 1990, the appellant filed a claim for increased compensation based on unem-ployability. R. at 87-88. The following month, a VA regional office (RO) denied his claim for increased compensation. R. at 92. VA also informed him of his potential entitlement to a TDIU rating and requested additional information to support a TDIU claim. R. at 94-95. The Travis County, Texas, Personnel Department responded to VA’s request for information by stating that the appellant was discharged from his employment in June 1987, “for reasons unrelated to any type of disability.” Supplemental Record at 1. In June and July 1990, VA provided him with a comprehensive medical examination and a psychiatric consultation. R. at 98-112. The medical report lists very minor degenerative joint disease in both hips. During the examination, the appellant reported that he did not have any problem as a result of the pelvic fracture, “except for some aching in the legs when he walks.” R. at 110. In their July 1990 consultation report, the VA psychiatric examiners concluded that his anxiety disorder “results in mild impairment of his vocational ability and mild impairment of social relationships.” R. at 112.

In its September 1990 rating decision, VA determined that the appellant had not met the requirements for a total schedular rating and that he was not shown to be unemployable due to his service-connected disabilities. R. at 117-18. He submitted a Notice of Disagreement and subsequently appeared before the RO at a personal hearing. R. at 124,136-46. He testified that he was fired in 1987 from his last full-time employment as a precinct manager and bookkeeper with Travis County because he was hospitalized due to his service-connected anxiety disorder. R. at 138. Since then he had had part-time employment, with limited success, as an insurance salesman. He stated that he had difficulty working with people because he suffered from severe headaches and anxiety. R. at 138-39.

In December 1990, the RO determined that, although the appellant satisfied the schedular criteria for consideration of individual unemployability pursuant to 38 C.F.R. § 4.16, his service-connected disabilities were not so disabling as to render him permanently unemployable. R. at 154. On appeal, the Board determined that in light of his education, work experience, and combined disability rating, there was no convincing evidence that the appellant’s failure to obtain employment was the result of a service-connected disability or disabilities. R. at 5, 9. A timely appeal to this Court followed.

II. ANALYSIS

The Court reviews the Board’s findings of fact under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). If the Board’s factual determinations [231]*231have a plausible basis in the record, the Court cannot overturn them. Id. The Board must also “account for the evidence which it finds to be persuasive or unpersuasive,” and provide adequate reasons or bases for rejecting evidence submitted by or on behalf of the claimant. Id. at 57; 38 U.S.C. § 7104(d)(1); see Douglas v. Derwinski, 2 Vet.App. 435 (1992) (en banc).

Total disability exists “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15 (1993). Where the sche-dular disability rating is less than 100%, a TDIU rating may be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are met. See, e.g., Holland v. Brown, 6 Vet.App. 443, 446-47 (1994). Pursuant to 38 C.F.R. § 4.16:

(a) Total disability ratings for compensation may be assigned, where the schedu-lar 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....

Additionally, multiple disabilities resulting from a common etiology or a single accident are considered one disability. Id.

The Board’s determination that the appellant was not entitled to a TDIU rating has a plausible basis in the record. As the Board found, R. at 5, the appellant has three compensable service-connected disabilities, resulting from a single accident—disfiguring facial scar, rated at 30% disabling; anxiety reaction with depression, rated at 30% disabling; and fracture of the left pelvis with traumatic arthritis, rated at 10% disabling. The combined value for these three disabilities results in a rating of 60% disabling. See 38 C.F.R. § 4.25 (using the combined ratings table, the combined value for the first two disabilities—each rated at 30%—is 51% and this value is combined with that for the third disability—rated at 10%—to reach 56% which is then rounded to 60%). The appellant therefore satisfies the regulatory sche-dular criteria for consideration of a TDIU rating. See 38 C.F.R. §§ 3.340, 4.16. However, the record shows that he has computer experience, a two-year college degree, and occupational experience in accounting and. business administration. Additionally, the VA psychiatric examiners concluded that he has only “mild impairment of his vocational ability” due to his anxiety disorder.

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Bluebook (online)
7 Vet. App. 229, 1994 U.S. Vet. App. LEXIS 1005, 1994 WL 703034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gary-v-brown-cavc-1994.