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In Evaluating Employability Claims, Debilitating Pain Should Also Be Considered Pursuant To 38 C.f.r. • 4.59



  • HadIt.com Elder


No. 90-583

Freddy, http://webisys.vetapp.gov/ISYSquery/IRLEF2...tmp/6/doc" Freddy J_ Odiorne, Appellant,_

Freddy J_ Odiorne, Appellant BVA 90-11724, at 9.

The Board, although concluding that appellant is not precluded from all forms of substantially gainful employment, failed to give reasons or bases for its determination. Although the Board stated that appellant's "unemployed status does not establish that he is unemployable, since lack of employment may result from a variety of causes, not consistent with unemployability," it is appellant's contention that the sole cause of his current unemployment and his inability to find any new employment is his left-knee disability. In his "Statement in Support of Claim," he mentioned that the pain in his knee

is severe enough that it has caused [him] problems in finding a job. I have been unemployed since 1986; and can find no

employer who will hire me, master's degree included. I have applied through city, county, [and] state agencies, has [sic] no hiring offers from any of them. I cannot stand [one] minute without severe pain - that's why I had to quit coaching in 1985 .

R. at 87. The Board must address appellant's allegations and discuss why it finds appellant employable. See 38 C.F.R. • 4.17 (1991).

In evaluating appellant's pension claim, the Board must also give more attention to the decision of the Department of Health and Human Services (Social Security). Although the Social Security decision regarding appellant's unemployability is not controlling for purposes of a final VA determination, it is relevant to the present claim. See Collier v. Derwinski, 1 Vet.App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The evidence is relevant to the determination of appellant's ability to secure and follow a substantially gainful occupation under 38 C.F.R. • 4.17. As we stated in Collier:

[T]he BVA cannot ignore or disregard relevant evidence in the record. See Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). If it discredits evidence, the BVA must give adequate reasons or bases for doing so. See Sammarco v. Derwinski, 1 Vet.App. 111, 112 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 ( 1990) (quoting International Longshoremen's Assoc. v. National Mediation Board, 870 F.2d 733, 735 (D.C.Cir. 1989)).

Collier, 1 Vet.App. at 416. In evaluating employability claims, debilitating pain should also be considered pursuant to 38 C.F.R. • 4.59 ( 1991). See Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Martin v. Derwinski, 1 Vet.App. 411, 413 (1991). Here neither the rating board nor the BVA addressed appellant's pain in its evaluations.

III. Conclusion

For the reasons stated above, the decision of the BVA is AFFIRMED as to appellant's left-knee condition but VACATED as to the Board's erroneous finding of fact that appellant's left-knee arthritis was not present until 15 years after service and as to appellant's pension claim, and those matters are REMANDED for proceedings consistent with this opinion.

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