BVA9505335 DOCKET NO. 92-04 135 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased rating for a lumbar spine disability, currently evaluated as 40 percent disabling. 2. Entitlement to a total rating based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel REMAND The veteran had active service from November 1954 to October 1956. The veteran is seeking an increased evaluation of his service- connected degenerative joint disease of the lumbosacral spine with herniated disc L5-S1. He is also seeking a total disability rating based on individual unemployability as a result of his back disorder. By a rating action in November 1983, the veteran was granted service connection for a back injury which had occurred when he was working on a sports plaza in Germany and injured his back while operating a jackhammer. Although service medical records were unavailable, having been destroyed in the Federal Records Center fire, a decision based on other evidence granted service connection for degenerative joint disease of the lumbosacral spine with herniated disc L5 - S1, evaluated as 40 percent disabling from August 1983. The RO assigned this rating under the provisions of Diagnostic Code 5293 of the schedule for rating disabilities, 38 C.F.R. § 4.71(a) (1994). The veteran was also granted service connected for major depression, shown to be secondary to the service-connected back condition, evaluated as 30 percent disabling from June 6, 1991. "Total disability will be considered to exist 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) (1994). Where the schedular disability rating is less than 100 percent, a total disability rating based on individual unemployability may be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are met. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected 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. 38 C.F.R. § 4.16 (1994). 38 C.F.R. § 4.16(a) further reads, "...the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable." Further, 38 C.F.R. § 4.16(b) states, "It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." The veteran has two compensable service connected disabilities, resulting from a single etiology--degenerative joint disease of the lumbosacral spine with herniated disc L5 - S1, rated at 40 percent disabling; and major depression, shown to be secondary to the service-connected back condition, rated at 30 percent disabling. The combined value for these two disabilities results in a rating of 60 percent disabling. See 38 C.F.R. § 4.25 (1994). The veteran therefore satisfies the regulatory schedular criteria for consideration of a total disability rating based on individual unemployability. The Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with a 60 percent disability rating. See Van Hoose v. Brown, 4 Vet.App. 361 (1993). The task of the Board is to decide if the service- connected disabilities are sufficiently incapacitating as to render him unemployable. See Pratt v. Derwinski, 3 Vet.App. 269 (1992). The file contains extensive medical records which show that the veteran has degenerative joint disease of the lumbosacral spine with herniated disc L5 - S1, and complaints of chronic low back pain, for which he has sought treatment. In addition, in July 1990, a private doctor, David A. Perry, M. D., indicated the veteran had chondrocalcinosis and complaints of multiple body aches and pains. The condition was described as chronic and progressive, which limited the veteran's activities to a bare minimum. Dr. Perry wrote in June 1992 to confirm the ongoing long-standing problems that the veteran has with back discomfort and with chondrocalcinosis, which is progressive. He also indicated that the veteran's back symptoms are aggravated by the chondrocalcinosis, and that the veteran's problems are progressive in nature and debilitating. The veteran was seen by the Midwest Spine Institute in December 1992 for evaluation and treatment of back pain. A CT scan gave an impression of spinal stenosis, L4-L5 and L5-S1. A VA medical examination in March 1994 gave an assessment of degenerative joint disease of the lumbosacral spine. In addition, the assessment included chondrocalcinosis with secondary degenerative joint disease of the shoulders, hips, and knees, progressive. The veteran also had clinical arthritis of the cervical spine. The veteran was hospitalized in June 1994 for a cervical and lumbar myelogram followed by a CT scan. The lumbar spine showed only modest degenerative changes with no evidence of spinal stenosis or neural impingement. The examiner believed that the veteran's lower back discomfort was secondary to calcium pyrophosphate arthropathy. He was also seen by the rheumatology service who concurred with the impression of calcium pyrophosphate deposition disease. To determine if the service-connected disabilities are sufficiently incapacitating as to render the veteran unemployable, an attempt needs to be made to distinguish the low back symptoms manifested by the service-connected disability from the low back symptoms resulting from the non-service-connected calcium pyrophosphate deposition disease. In addition, the extent of pain appellant experiences and its impact on his employability must be addressed. See Hatlestad v. Derwinski, 1 Vet.App. 164 (1991). To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The veteran should be afforded a VA orthopedic examination, to include all pertinent tests not medically counterindicated, in order to distinguish between low back symptoms manifested by the service-connected disability, and the low back symptoms resulting from the non- service-connected calcium pyrophosphate deposition disease. The claims folder should be made available to the examiner for review before the examination. The examining VA physician should address the extent of functional and industrial impairment resulting from the service- connected disability; and the extent of pain the appellant experiences from the service connected back disability and its impact on his employability. All test results and examination reports shall be made a part of the claims folder. The RO should review the examination reports to determine if they are adequate for rating purposes and in compliance with this remand. If not, they should be returned to the examiner for supplemental action. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. JACK W. BLASINGAME 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).