**UNITED STATES COURT OF VETERANS APPEALS**

No. 91-1388

[Mitchell C. Brown, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided March 2, 1993 )

*David I. Brown* was on the brief for appellant.

*James A. Endicott, Jr*., General Counsel, *David T. Landers*, Acting
Assistant General Counsel, *Thomas A. McLaughlin*, Deputy Assistant
General Counsel, and *Edward V. Cassidy, Jr*., were on the brief for
appellee.

Before KRAMER, MANKIN, and HOLDAWAY, *Associate Judges*.

HOLDAWAY, *Associate Judge*: Appellant, Mitchell C. Brown, appeals a
decision of the Board of Veterans\' Appeals (Board or BVA) which denied
a total disability rating based on individual unemployability.

**BACKGROUND**

Appellant had active service from October 1942 to June 1945. In October
1944, appellant was wounded during an enemy attack on his ship.
Appellant sustained shrapnel wounds to both thighs and both legs,
including lacerations, fractures, comminuted fractures, and displacement
of fragments. In June 1946, an x-ray examination revealed foreign bodies
in the right femur, and multiple fractures involving the heads and necks
of the second, third and fifth metacarpal bones with deformity and
osteoporosis in these bones. In an April 1, 1949, rating decision, the
Department of Veterans Affairs (formerly the Veterans\' Administration)
(VA) Regional Office (RO) granted appellant a 20% disability rating for
shrapnel wounds to the left foot resulting in marked deformity and the
fracture of the distal metatarsal heads resulting in inward angulation,
a 20% disability rating for a large scar on the left thigh, and a 10%
disability rating for healed shrapnel wounds on the left leg with mild
residual left femoral neuralgia.

In 1958, appellant averred that his condition had worsened and applied
for an increased rating. In support of his claim, he submitted a
statement from Dr. Alvin Schaye, a private physician. Dr. Schaye stated
that appellant could not \"stand or keep his feet down for long without
pain.\" Dr. Schaye also noted atrophy and marked varicosities of
appellant\'s right leg. In December 1958, appellant testified at his
personal hearing that he had been employed with the United States Postal
Service since 1950 in a half-standing half-sitting position, and that he
had been forced to miss at least forty days of work during the past year
because the pain in his legs had worsened. In late 1958, the VARO denied
an increased disability rating. Apparently, appellant did not appeal his
claim.

In September 1963, appellant applied to the United States Civil Service
Commission for total disability retirement. In response to his
application for total disability retirement, appellant received a
physical examination in October 1963 at the United States Public Health
Service Clinic. That examination revealed a metallic object anterior to
the left tibia and residual fracture deformities at the metatarsal
phalangeal areas of the left foot with some osteoarthritis. The examiner
concluded that appellant had a \"significant disability\" as a result of
his injury. On October 30, 1963, the United States Civil Service
Commission granted appellant disability retirement.

In April 1987, appellant applied for a total disability rating based on
individual unemployability. In September 1988, a limited examination was
performed at the VA Medical Center. The examiner diagnosed appellant
with residuals of a gunshot wound in the left foot with rather severe
deformity resulting in a lack of toe function, muscle group XII weakness
and atrophy, gastrocnemius atrophy in the left leg, a left heel spur,
and foot pronation secondary to imbalanced gait and muscle weakness. On
February 8, 1990, the VARO granted appellant a combined disability
rating of 80%.

On March 15, 1990, appellant appealed the VARO\'s denial of a total
disability rating based on individual unemployability. In support of his
claim, appellant submitted a January 1964 determination by the New York
State Department of Labor that appellant was \"incapable of
employment.\" In April 1990, the VARO confirmed and continued
appellant\'s previous rating. Thereafter, appellant filed a Notice of
Disagreement, and his claim proceeded to the BVA.

On April 19, 1991, the Board determined that appellant\'s
service-connected disabilities did not preclude him from obtaining
substantial employment. *Mitchell C. Brown*, BVA 90-44977 (Apr. 19,
1991). In discussing the evidence before it, the Board acknowledged that
appellant had been determined unemployable in 1963 and 1964 by the
United States Postal Service and the New York State Department of Labor,
and that the combination of the veteran\'s disabilities rendered him
disabled, under the schedular evaluation, to a degree of 80%. *Id*. at
2-4. Nevertheless, the Board determined that:

> No doubt, jobs which require prolonged standing or walking are still
> infeasible. However, many occupational endeavors, including sedentary
> employment, will appear to be within his capability. . . . The
> evidence only shows that he is precluded from performing the duties
> associated with that position \[the job with the Postal Service\]. It
> does not convincingly show that his ability to work in other suitable
> positions is entirely compromised by disabilities he incurred in
> service.

*Id*. at 5.

**ANALYSIS**

Under 38 U.S.C.A. § 7261(a)(4) (West 1991), and *Gilbert v. Derwinski*,
1 Vet.App. 49 (1990), the Court must set aside a finding of material
fact as clearly erroneous when the Court is left with a definite and
firm conviction, after reviewing the entire evidence, that a mistake has
been committed. The Court may reach that conclusion only if there is no
\"\'plausible basis in the record\'\" for the BVA findings at issue.
*Gilbert*, 1 Vet.App. at 52-53; *see Moore v. Derwinski*, 1 Vet.App.
356, 358 (1991).

Under these particular circumstances, where the United States Postal
Service and the New York State Department of Labor determined that
appellant was unemployable, the Court finds no plausible basis for the
BVA\'s conclusion that appellant is able to engage in substantially
gainful employment. All evidence of record indicates that appellant is
unemployable, and should be granted a total disability rating based on
individual unemployability. The BVA, in speculating on his
employability, did not point to a single piece of evidence supporting
its conclusion that the veteran is able to pursue substantially gainful
employment. *See* 38 C.F.R. §§ 4.1, 4.10, 4.16 (1991); *Hersey v.
Derwinski*, 2 Vet.App. 91, 94 (1992); *Moore*, 1 Vet.App. at 359. The
Secretary of Veterans Affairs (Secretary) has conceded that the BVA
decision contains numerous errors. However, in light of this Court\'s
decision, it is unnecessary to address the remaining issues raised in
the Secretary\'s brief. The decision of the BVA is REVERSED and the
matter REMANDED with directions to assign a total disability rating
based on individual unemployability.