BVA9507950 DOCKET NO. 93-12 850 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Wayne A. Tonkins, Associate Counsel INTRODUCTION The veteran had active service from August 1954 to June 1958. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 1991 from the Pittsburgh, Pennsylvania, Regional Office (hereinafter RO) which denied the claim for individual unemployability. The veteran's accredited representative contends in his informal hearing presentation dated in September 1993 that the disability rating for the veteran's back disorder should be increased from 40 percent to 60 percent disabling. The veteran specifically requested a 40 percent evaluation, and that evaluation was granted during the appeal period. No additional action is warranted. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that his service-connected back disability has increased in severity and renders him unable to secure and follow any form of substantially gainful employment. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that a preponderance of the evidence is against the claim for a total rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. Service connection is in effect for chronic lumbosacral strain, residuals of compression fractures of L1, L2 and L3 evaluated as 40 percent disabling. 2. The veteran has completed high school and has "some college." He has occupational experience as a mechanic. He reports having last worked on a full-time basis in April 1986. 3. The veteran's service-connected disability is not of such severity as to preclude him from securing and following some form of substantially gainful employment consistent with his education and work experience. 4. The case does not present an exception or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the regular schedular standards. CONCLUSION OF LAW A total rating for compensation purposes based on individual unemployability due to the veteran's service-connected disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. The veteran contends that his service-connected disability has rendered him unemployable. Total ratings for compensation purposes may be assigned where the combined scheduler rating for the veteran's service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to render the veteran unemployable without regard to either his advancing age or the presence of any non service-connected disorders. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341 (1994). The provisions of 38 C.F.R. § 4.16(a) (1994), establish, in pertinent part, that: Total disability ratings for compensation may be assigned, where the scheduler rating is less than the 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. Further, a total rating for compensation purposes based on individual unemployability may be granted irrespective of the combined scheduler rating where it is shown that the veteran's service-connected disabilities render him unemployable. 38 C.F.R. §§ 3.321, 4.16(b) (1994). Service connection is only in effect for chronic lumbosacral strain, residuals of compression fractures of L1, L2 and L3 evaluated as 40 percent disabling. Therefore, the veteran does not meet the scheduler requirements set forth in 38 C.F.R. § 4.16(a) (1994). Accordingly, the regional office did not have authority to grant a total rating for compensation on the basis of individual unemployability. Given this fact, we need to address whether the veteran's service-connected disability nevertheless renders him unemployable. 38 C.F.R. § 3.321 (1994). The record shows that the veteran has completed high school with "some college." He has occupational experience as a mechanic. He reports having last worked on a full-time basis in April 1986. The January 1984 statement from L. C. Dobler, M.D., reflected that the veteran had been treated since 1979 for recurring acute arthritis which he believed to be acute gouty arthritis. The attacks of acute arthritis were severe and totally incapacitating when they occurred and caused the veteran to miss a substantial amount of work time during the past four years. The January 1986 statement from M. H. V. Murthy, M.D., reflected that the veteran had acute gouty arthritis. He appeared to have episodic arthritis and it was difficult to predict a complete recovery from this disease. He appeared stable with medication but because of the frequency of attacks, it was considered probably prudent for him to perform sedentary work. The VA compensation and pension examination conducted in January 1991 showed no tenderness and no swelling of the lumbar spine. The veteran's lumbosacral spine was capable of 20 degrees of flexion, 10 degrees of left rotation, 15 degrees of right rotation and 0 degrees of extension. The X-ray study conducted in the same month indicated minimal facet joint sclerosis at L4- L5 with very minimal disc bulging at that level. Minimal facet joint spurring at L2-L3, with minimal stenosis at that level was also noted. However, no fractures and no epidural mass were observed. The veteran provided testimony during a personal hearing conducted in September 1992 that his current back symptoms consisted of constant back pain with spasms approximately every 2 or 3 days, and pain in the lower back that radiates towards the hips. He further testified that he does not take medication nor has he actively sought medical treatment because doctors informed him while he was in service that they could not do anything for him. For temporary relief, the veteran takes hot baths, use heating pads and when the pain is severe he lays down. He also testified that he could only sit for "so long," and that he could not stand on a hard surface more than 45 minutes. He also indicated he tried to obtain jobs driving but they never worked out. The VA compensation and pension examination of the veteran's spine conducted in January 1993 revealed palpable pain over the upper lumbar spine with palpable spasm in the paraspinal muscles as well as palpable tenderness over the lumbosacral joint. Muscle strength was 5/5 and equal bilaterally in the hip flexors and extensors. He did not exhibit sensory deficits to pain and light touch. A postural abnormality of approximately 10 degrees of flexion, which was not fixed, was noted. The musculature of the back was in spasm. Forward flexion was limited to approximately 40 degrees, and backward extension was limited to 10 degrees with pain on extremes of motion. Left and right lateroflexion were full and the left and right rotation were full. Marked pain was noted with extremes of flexion and especially extension. A CT examination of his lumbosacral spine was significant for moderate degenerative disease of the lumbar spine and for central lumbar stenosis at approximately L3. There was no herniated disc noted. The clinical impression indicated lumbar stenosis exacerbated by activity related to a service injury becoming worse with degenerative arthritis of the lumbar spine. The veteran also provided a 1986 employment statement to the effect that he was unable to perform his duties as a result of physical disability. The Board acknowledges that the veteran's service-connected disability, chronic lumbosacral strain, residuals of compression fractures of L1, L2 and L3, is productive of physical impairment. However, the issue before the Board is whether the veteran has been rendered unemployable by reason of the service connected disability. In this regard, Dr. Dobler concluded that the veteran suffered from acute arthritis attacks that were so severe and totally incapacitating that he missed a substantial amount of time from his job over a four-year period. The veteran is not service connected for the acute arthritis, and the manifestations of that disability may not be considered in evaluating the claim. 38 C.F.R. § 4.19 (1994). In a report dated in January 1986, Dr. Murthy recommended that the veteran seek sedentary work because strenuous activity could cause an acute attack of his episodic gouty arthritis. Again, the manifestations of the gouty arthritis may not be considered in evaluating the claim. 38 C.F.R. § 4.19. Regardless, the opinion does establish the veteran is capable of performing sedentary employment. This medical opinion has not been contradicted by other competent authority, and if the veteran is capable of performing sedentary employment, he is not unemployable. There is no objective indication that the veteran's service- connected back disability prohibits him from retaining gainful employment. Indeed, the hospital summary report from Suburban General Hospital in January 1984 showed the veteran had problems with his right foot, right ankle, both knees, left elbow and right shoulder, but did not show any treatment for back problems. The veteran experienced flare-ups of arthritis every two months or so that required him to take off from work a week to 10 days. The doctor noted that when the veteran was free of arthritis, he was able to work without significant problems. In regard to the 1986 employment statement, the document does not establish that termination of employment was due to the service- connected low back disability. In fact, the contemporaneous medical statements support a reasonable conclusion that employment was terminated due to other medical causes. The evidence tends to establish that the veteran's prior employment was terminated due to causes unrelated to the service- connected disability. In addition, the Board has not been presented with significant evidence that tends to establish that the veteran is precluded from reentering the work force due to the low back disability. Although the veteran has presented testimony, such testimony related more to the level of disability of the low back than whether he is precluded from performing substantially gainful employment. Regardless, the Board has been presented with a medical opinion to the effect that the veteran is capable of performing sedentary employment. In essence, the veteran does not meet the basic schedular requirements for a total rating for compensation on the basis of individual unemployability. 38 C.F.R. § 4.16. The veteran has indicated that he has not sought much treatment for the low back. Accordingly, the facts establish that the disability has not required frequent periods of hospitalization. See 38 C.F.R. § 3.321. In regard to whether there is marked interference with employment, the medical evidence establishes that he is capable of performing sedentary employment. The Board has been presented with positive and negative evidence. The veteran has filed a claim, alleging that he is unemployable. However, an examiner has concluded that the veteran is capable of performing sedentary employment (but such opinion did not relate to the service connected impairment). The Board may consider only the effects of the service connected disability. The examiner is a trained professional who is competent to enter opinions regarding impairment of an individual. The veteran, although competent to testify, is not trained in assessing occupational handicaps. Accordingly, his own opinion is of diminished probative value. Furthermore, no medical professional has entered an opinion to the effect that the service-connected lumbar disability precludes substantially gainful employment. We conclude that the negative medical opinion from a trained professional is more probative of the veteran's ability than his equivocal testimony. In regard to the 1986 employment statement, the document is of no probative value because there was no reference to the service-connected back impairment.We conclude that the preponderance of the evidence is against the claim and that there is no doubt to be resolved. ORDER A total rating for compensation purposes based on individual unemployability is denied. H. N. SCHWARTZ 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.