BVA9505776 DOCKET NO. 92-55 073 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from January 1961 to January 1981. This appeal arises from a May 1991 Department of Veterans Affairs Regional Office in San Diego, California (VARO) rating decision which denied the appellant service connection for a cervical spine disorder and denied him a total disability rating based upon individual unemployability. The Board remanded the appellant's claim in a July 1992 decision for further development. VARO subsequently granted the appellant service connection for degenerative changes of the cervical spine, evaluated as 20 percent disabling, in a December 1993 rating decision, but continued its denial of a total rating based upon individual unemployability. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to a total disability evaluation on the basis of individual unemployability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 the appellant is unemployable due to his service-connected disabilities and that a total rating is warranted. FINDINGS OF FACT 1. The appellant served on active duty from January 1961 to January 1981. 2. He has not been employed for years. 3. He is unemployable due to his service-connected, lumbar spine disorder and degenerative arthritis of the cervical spine with a combined disability rating of 70 percent, and residuals of a hemorrhoidectomy, currently evaluated as 0 percent disabling. 4. The appellant's service-connected lumbar spine disorder and degenerative arthritis of the cervical spine preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW A total rating for compensation on account of individual unemployability is warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, and Part 4 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking a total disability rating based on individual unemployability due to his service-connected, lumbar spine disorder and degenerative arthritis of the cervical spine, with a combined disability evaluation of 70 percent. The Board, in reaching its decision in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all relevant evidence and material of record incorporated in the appellant's claims folder and its attachments. Further, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded." 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board also finds that the appellant's claim has been adequately developed for appellate purposes by VARO and it may therefore proceed to disposition of the matter. Before discussing the appellant's claim, the Board believes that an overview of the appellant's medical history is in order. Medical history A March 1969 service medical treatement entry reported that the appellant suffered from low back strain during service. The appellant was hospitalized in May 1980 for a hemorrhoidectomy. The hospital summary reported that the physical examination was within normal limits with the exception of the rectal examination which showed 3 plus internal and external hemorrhoids. A chest x- ray was within normal limits except for scoliosis of the thoracic spine. The appellant's military personnel records reported that he received, among other awards, the Purple Heart and Combat Infantryman Badge. The appellant applied for service connection for "back pain" and an "eye condition" in February 1981. A VA examination was conducted in May 1981. The appellant related his back pain to a parachute accident in 1966. He complained of periodic pain across the lower back, radiating down the left posterior thigh and leg. His range of motion was normal and his lumbosacral spine was in midline. However, there was a "pulling sensation" noted across the lower back. The examiner diagnosed post-traumatic residuals with degenerative joint disease. A May 1983 statement from the appellant's private physician, Donald J. Ross, M.D., P.C., was submitted. Dr. Ross reported a diagnosis of left discogenic back pains with left calf atrophy. A VA examination was conducted in October 1983. The appellant complained of increased pain and discomfort of his lumbosacral spine radiating into the left buttock and into the left lower extremity to the level of the knee. He denied limitation of physical activities regarding work. He had flexion to 80 degrees; extension to 20 degrees; lateral bending to 40 degrees to the right and to 30 degrees to the left. The examiner diagnosed chronic strain, without current x-ray evidence of arthritis. A November 1983 hospital treatment summary from the appellant's private physician, William F. Deverell, M.D. was submitted. Dr. Deverell reported that the appellant received a partial hemilaminectomy and diskectomy, L-5, S-1 left. An April 1984 VA examination reported that the appellant complained of persistent low back pain with radiation to his lower left extremity. The appellant had limited range of motion of the lumbar spine. His forward flexion was to 50 degrees; backward extension was to 15 degrees; and lateral flexion was to 20 degrees. He had limited straight leg raising on the left and left ankle jerk was absent. There was marked impairment to pinprick present over the dorsolateral aspect of the left foot and heel. The examiner diagnosed status post hemilaminectomy and diskectomy L5, S1 for herniated nucleus pulposus, healed, with persistent radicular symptoms. A VA examination was conducted in December 1985. The appellant continued to complain of low back pain radiating into his left leg and claimed that he had missed 10 days from work in 6 months as the result of back pain. The examiner observed straight leg raising of only 10 degrees on the left. The appellant had limited range of motion of the lumbar spine with rotation to the right of 35 degrees and to the left of 30 degrees. He had right lateral flexion to 10 degrees and 20 degrees to the left. He had extension to 10 degrees and flexion to 40 degrees. The examiner diagnosed status post lumbar laminectomy with left sciatic radiculopathy, weakness, atrophy and limitation of motion. An October 1990 orthopedic evaluation by the appellant's private physician, Glenn D. Cunningham, M.D., was submitted. Dr. Cunningham diagnosed a possible herniated nucleus pulposus L4-5, L5-S1, and possible herniated nucleus pulposus C5-6 and C6-7. October 1990 x-rays, interpreted by the appellant's private physician David E. Constan, M.D., revealed degenerative disc disease at C5-6; upper thoracic levoscoliosis; degenerative disc disease at L5-S1; and questionable lower lumbar spinal stenosis. An MRI was performed in November 1990. A summary from the appellant's private physician, J. Bruce Jacobs, M.D., reported relatively minor annular bulges with left eccentricity at L3-4 and L4-5 causing left lateral recess stenosis and a scleotic protrusion into the left lateral recess juxtaposed to and slightly dislocating the left S1 root. A November 1990 statement from the appellant's private physician, Robert S. Bertrand, D.C., reported that the appellant had been receiving treatment for a chronic neck and back injury with degenerative and neurological changes in his neck and lower spine since May 1990. A February 1991 MRI, submitted by the appellant's private physician, Curtis E. Manning, M.D., reported moderate bilateral nerve root impingement at the C6-7 levels; minimal, left C5-6 nerve root involvement; degenerative spurring and probable mild bulge of discs C3-4, C4-5 and C5-6; and moderate extradural defect anteriorly caused by degenerative spurring at C6-7 level. A February 1991 nerve conduction study from Desert Hospital reported normal distal latencies with no evidence of carpal tunnel syndrome; no slowing across the ulnar nerve at the elbow on either side; mild, acute and chronic denervation of the cervical 5 and 6 roots on the right side; and mild denervation of cervical 8 and thoracic 1 root left side. The examiner concluded that the appellant had right cervical 5-6 radiculopathy and possibly, a minimal left cervical 8th radiculopathy. A March 1991 VA examination reported that the appellant had lateral flexion of 5 degrees to the right and 10 degrees to the left; rotation of 20 degrees to the right and 15 degrees to the left; anterior flexion of the femoral sacral of 15 degrees and anterior flexion of the thoracodorsal of 0 degrees; and extension of 10 degrees. The examiner observed that the appellant walked on his tiptoes and heels without difficulty, but moved carefully and slowly. His impression was status following laminectomy and chronic lumbosacral strain. In his May 1991 application for employment benefits the appellant reported that he last worked as a sales branch manager at Columbia Savings and Loan Association. He reported that no concessions were made by his employer due to his disability and did not indicate a reason for his unemployment. A March 1992 disability award letter from the Social Security Administration reporting the appellant's entitlement to $968.00 per month for disability benefits was submitted VA outpatient treatment records dated from December 1991 to September 1993 reported that the appellant continued to complain of low back and neck pain. A January 1992 MRI of the cervical spine revealed diffuse degenerative changes of the cervical spine, most severe at C6-7, with narrowing of the disc and moderate right neural foraminal narrowing. A VA medical examination was conducted in August 1993. The appellant had forward position of the head. His range of motion of the cervical spine was limited, with forward flexion to 45 degrees; extension to 45 degrees; right rotation to 70 degrees; left rotation to 75 degrees. The appellant had lateral sidebending within normal limits, to 40 degrees. There was no pain to palpation in the supraclavicular area. Range of motion of the shoulders, wrists and elbows was within normal limits. Examination of the lumbosacral spine revealed that the iliac crest was symmetrical in height. The appellant had flattened lordosis; no scoliosis; no paralumbar spasm or pain to palpation. His range of motion was limited, with forward flexion to 45 degrees; extension to 0 degrees; lateral sidebending to 20 degrees, rotation to 30 degrees, limited in grade. He complained of pain at the lumbosacral junction with all motions. He had unequal calf circumference, which was 40 cm on the right and 38 cm on the left. He had 5/5 strength throughout the lower extremities and a normal gait. The examiner diagnosed degenerative changes of the cervical spine, observed on x-ray and MRI, and abnormal EMG by history with limitation of range of motion and discomfort. Regarding the lumbosacral spine, he diagnosed degenerative changes seen on x-ray and MRI, status post laminectomy in 1984 by history with well- healed nontender scar, limitation of range of motion and discomfort as described. Regarding the thoracic spine, he diagnosed a compression fracture at T12 secondary to trauma, documented in 1986. At his April 1994 hearing on appeal, the appellant testified that he retired because of his disability and that he missed approximately 1 week per month during the last year of his employment due to disability. He reported that he received workers' compensation disability because of his back condition and claimed that he regularly took Codeine for pain, which affected his ability to perform his job. Analysis The appellant is seeking a total disability rating based upon individual unemployability due to service-connected, degenerative disc disease of the lumbar and cervical spine with a combined disability evaluation of 70 percent disabling. According to his May 1991 claim for such benefits, he is unemployed. He worked as a bank manager for a number of years. He claimed that he last worked in 1990 and discontinued employment due to his "back" disorder. The appellant's compensable service-connected disorders include a lumbar spine disorder and degernative arthritis of the cerviceal spine, discussed at length above, which are currently evaluated as 60 and 20 percent disabling, respectively. The appellant is also service-connected for the residuals of a hemorrhoidectomy evaluated as 0 percent disabling. A total disability compensation rating may be assigned in a case in which the schedular rating is less than 100 percent, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, and Part 4 (1993). After having reviewed all of the evidence, the Board believes that the record establishes that the appellant's service-connected lumbar spine disorder and degererative arthritis of the cervical spine render him unable to secure and retain gainful employment. The medical evidence, particularly his most recent VA examinations, indicates that he has substantial limitation of motion of both his lumbar and cervical spine. Further, the fact that the appellant was awarded social security disability benefits for unemployability is of significant importance and can not be disregarded by the Board. Murincsak v. Derwinski 2 Vet.App. 363 (1992). Without evidence of employability, the Board must find that the appellant is totally disabled. ORDER A total rating for compensation purposes is granted, subject to controlling regulations applicable to the payment of monetary benefits. C. P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (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.