Citation Nr: 0003855 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 94-11 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran had active military service from January 1981 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1993 decision of the Hartford, Connecticut Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim seeking entitlement to a total rating for compensation purposes based on individual unemployability. A personal hearing was conducted at the RO in September 1993, and a Travel Board hearing was conducted before the undersigned Board member in April 1994. Transcripts of both hearings are of record. The Board in May 1996 remanded the case for further development. Thereafter, the veteran moved to the state of Massachusetts and the claims folder was transferred to the Boston, Massachusetts, RO. The development was completed and the case was returned to the Board for further consideration. FINDINGS OF FACT 1. The veteran has service connection for ankylosis of the lumbosacral spine due to compression fracture with displaced deformity at L2, currently evaluated at 60 percent disabling, and residuals of a graft site at the left iliac crest which is currently evaluated as noncompensable. 2. The veteran has a bachelors degree in library science, and was slated to receive a masters degree with a concentration in health in June 1999. 3. Since November 1995 the veteran has been employed at the Boston VA Medical Center as a secretary; she works 40 hours per week and earns a monthly salary of $1,860.00. 4. The veteran's service-connected disabilities do not render her unable to obtain or retain gainful employment compatible with her education and occupational experience. CONCLUSION OF LAW The criteria for a total rating for compensation purposes based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran suffered an L2 compression fracture in service reportedly after falling 10 feet onto the ground, with a hospitalization thereafter for four days and a back brace worn for four months. The veteran then re-injured her back one year later slipping and falling. In 1984 she underwent surgical fusion at the L1 to L3 levels, with placement of Harrington rods. The rods were removed nine months later due to misalignment. An attempt at L3 to L5 fusion was performed during VA hospitalization in January 1986. During VA hospitalization in November 1992, the veteran reported constant moderate pain since 1982, localized to the low back, with radiation down the right leg, and occasional episodes of stabbing pain radiating down the right leg and causing approximately five minutes of immobilization. The veteran was then noted to ambulate with a cane, with weather and physical activity aggravating her condition. She reported that muscle relaxants had no effect on her pain, but that the pain was alleviated with Tylenol. She reported significant nighttime awakenings and sleep disturbance for the prior 10 years due to pain. She reported having quit work due to pain and having entered a course of study in library science to obtain suitable employment. At a December 1992 VA orthopedic examination, the veteran's medical history was noted. She complained of persistent pain on the right side of her low back with occasional radiation into the right leg. The examiner found range of motion of the spine limited to 20 degrees flexion, zero degrees extension, 5 degrees left and right lateral bending, and 10 degrees left and right lateral rotation. Deep tendon reflexes were 2+ in both extremities in the knees and ankles, and sensation and motor function were 5/5 in the lower extremities. Straight leg raising was painless but caused audible popping and crunching in the low back consistent with nonunion of lumbosacral fusion. The examiner diagnosed 50 percent compression fracture of L2 status post two failed attempts at lumbosacral fusion. The fusions were noted to have failed due to insufficient time allowed for healing with Harrington rods in place. The examiner assessed that a (unspecified) disc must be dealt with, and then the veteran was to undergo another fusion. A December 1992 private MRI of the lumbar spine showed significant compression deformity of L2 with small focal posterior region retropulsion around the superior posterior end plate of L2, without significant spinal stenosis, with no evidence of foraminal stenosis or disc herniation. Post- operative changes and evidence of prior fusion were observed extending from T12 at least through S1. The claims file contains numerous VA medical records of treatment for the veteran's back disorder, including physical therapy and pain management treatment. Use of a back brace was initiated in February 1993 to assist in alleviating pain. The veteran also began using a right leg brace above the knee and a cane to assist in ambulation. The veteran reported that she subsequently began using crutches in place of a cane. The veteran at some point also began using a wheelchair, reportedly because of leg weakness and pain precluding walking long distances. The veteran is currently service-connected for a low back disorder, characterized by a compression fracture at L2 with displaced deformity at that level and ankylosis post three operative procedures, with two attempted spinal fusions which were incomplete. In a claim for unemployability benefits submitted in July 1992, the veteran informed that she worked from August 1986 to August 1988 as an assembler for Pratt and Whitney, working 40 hours per week, with 2.5 months lost due to illness, with highest gross earnings of approximately $2,000 per month; that she worked from August 1988 to January 1991 with tape operations for Cigna Systems, working 40 hours per week, with 1.5 months lost due to illness, with highest gross earnings of $1,300 per month; that she worked from January 1991 to August 1991 as an inspector for Windsor Manufacturing, working 40 hours per week, with 20 days lost due to illness, earning $850 per month; that she worked from August 1991 to July 1992 as an attendant for Cromwell Kennels, working 24 to 40 hours per week, with highest gross earnings of from $320 to $560 per month; and that she worked from May 1992 to the date of claim in a work-study position performing customer service and answering telephones, working 25 hours per week, with approximately 20 hours lost during that work interval due to illness, with highest gross earnings of $427 per month. She reported that she gave up her work at the kennel due to her back disorder. In an October 1992 statement the veteran informed that her work for Cigna involved walking eight hours per day, which was exacerbating her back condition, so she left that employment. She informed that the Windsor position involved sitting for eight hours, but she took breaks to stand up and walk around at that work, and those breaks caused her to be threatened with being fired due to poor production, so she quit that job. She stated that she believed that her back was getting soft at that desk job due to lack of activity. She stated that she next worked at a kennel and a veterinary hospital to have more physical activity, but that the work was too much, so she quit the job at the kennel work but kept her employment with the veterinary hospital, which only involved cleaning the lobby, offices, and examination rooms of the hospital. She reported that she was currently in a physical therapy program which included swimming, and currently worked in a work-study program. The employment figures the veteran provided with her July 1992 unemployability claim are reasonably consistent with those the veteran provided in a VA Form 21-8940 she submitted in April 1993, except that in the April 1993 submission the number of days reported lost due to illness had increased to 100 days at Pratt and Whitney and 60 days at Cigna Systems, and had decreased to 10 days at Windsor Manufacturing. In the April 1993 submission, the veteran reported that her physicians had told her not to try to work due to pending surgery. However, medical records from that time do not indicate that surgery was scheduled or that the veteran was advised against working. A vocational rehabilitation report from April 1993 informs that the veteran reported doing well and enjoying her vocational training in library sciences. In an October 1993 vocational rehabilitation report, the veteran was noted to have reported that she was working in the medical library of a VA medical center, that she enjoyed her work, and that her work assisted her with her university program in library sciences. While the vocational rehabilitation specialist noted in October 1993 that the veteran was then wearing a back brace, was receiving a clothing allowance, and was pursuing increased disability benefits, the specialist did not then note that the veteran reported being unable to function adequately in her work study or her school studies due to her back. VA lumbosacral X-ray reports from January 1993, July 1993, August 1993, and June 1994 were consistent with unchanged L2 compression fracture and incomplete fusion in the lumbar region around L3/L4, but without changes in vertebral body alignment or any significant spondylolisthesis, and without significant interval changes observed in August 1993 or June 1994. At a September 1993 RO personal hearing, the veteran testified that she wore a back brace from below the neck nearly to the groin area, and that she had to wear the brace all the time, explaining that she could not support herself on her right side. She testified that she could walk short distances without crutches, but that this required limping. She testified as to her current and prior employment, as noted hereinabove. She testified that she now attended college in a library science program and also worked 18 hours per week in a work-study program performing library duties. She testified that when shelving books in the course of those duties she had to rest frequently and had to elevate her leg for leg comfort. She also testified that her back condition interfered with her sleep. She testified that she refused to take pain medications because they put her right arm to sleep and upset her stomach, adding that she currently only took Extra-Strength Tylenol. She testified that she had used a cane until August 1993 for stability, but now used crutches. She added that for the past one-and-one-half years her right leg had bothered her constantly. At an April 1994 Travel Board hearing, the veteran testified that she used back and right leg braces and was wheelchair bound. She testified that she was going to school because of her incapacities, that she couldn't walk from class to class, and that she was in constant pain affecting both lower extremities. She also testified that a VA physician told her that she was unemployable. She testified that she did not like to take her pain medications, explaining that the medications helped her pain but did not improve her walking. She further explained that her back could not support her weight and she had weakness in her right and left legs and her knees. She testified that she fell when walking and suffered from poor balance. She also testified to difficulty with bowel and bladder control, partly due to difficulties getting to a bathroom and removing her clothing in time, and partly due to some impaired bowel and bladder function. She testified that she had undergone complete fusion of lumbar vertebrae between L1 and S1, but that the fusion was breaking down in two places, between L1 and L3, and between L3 and L5. She expressed a goal to work in a seated position in a medical library, and testified that due to her service- connected disorder she was unable to work at a regular library job. At a January 1995 VA consultation, the veteran complained of increasing leg weakness, more so in the right leg. She reported that in the prior year she had begun using a wheelchair to travel distances, due to pain upon ambulation at school and at malls. The veteran's history of back difficulties with unsuccessful fusions was noted. She complained of currently suffering from moderately severe pain down the right side of her back, with radiation down her right hip to her thigh and down to her toes. She also complained of difficulty sleeping. The examiner noted that the veteran had been wearing a thoracic lumbar sacral orthosis (TLSO) jacket with thigh corset for the prior two years. The examiner found, in pertinent part, pain sensation in the L1-S1 region, diffusely diminishing. Right lower extremity strength was 5/5 in the right hip flexions and quadriceps, 5/5 in the foot dorsiflexors and plantar flexors, and 5/5 in the hamstrings. The veteran's gait was noted to be without assistance, but with the assistance of cane and crutches for longer distances, and with a wheelchair when going to the mall and school. Bowel and bladder function were intact. The veteran was independent for activities of daily living. The examiner assessed status post fracture of L2 and two fusions of the lumbosacral spine with nonfusion at L3/L4 and L4/L5 levels, and chronic low back pain and right leg pain. Pain management and physical therapy were suggested. At a March 1995 VA orthopedic evaluation, the examiner noted that a CT scan showed fragmentation of post fusion with open facets at L3-L4 and L4-L5 levels consistent with pseudoarthrosis. At a September 1995 VA orthopedic evaluation, the veteran reported being in a wheelchair most of the time except when moving around her house. She also reported wearing a hard brace because she was worried about the outcome of a future motor vehicle accident. She reported a progression of her back disorder following upon her initial injury and a subsequent exacerbating injury. The examiner found no changes to her thoracolumbar spine, and assessed back pain and failed fusion at L3-L4. The examiner discussed with the veteran the benefits of reduced wearing of her thermoplastic brace and increased conditioning. At a VA MRI of the lumbar spine in December 1995, the examiner assessed, in pertinent part, probable failed lumbar spine fusion, without evidence of bony fusion at L3/L4 or L4/L5, and old compression fracture of L2 with resulting mild compromise of the spinal canal at L1/L2 and L2/L3 levels, but without evidence of neural encroachment. At an August 1996 VA examination for compensation purposes, the veteran's history of back injury and subsequent failed fusions were noted. The veteran complained of back pain since 1990, but did not wish to have any further surgery. She reported taking Tylenol and Ibuprofen for pain, but reported that she had pain all the time. The examiner found that the veteran ambulated with no support, without an antalgic gait, and with no obvious limp. A 10-centimeter scar was noted in the left iliac crest (the site of a bone graft donation), and a 40-centimeter scar was noted in the posterior midline. There were no postural abnormalities. A decrease in motion of the lumbar spine was noted. Range of motion of the lumbar spine was to 70 degrees forward flexion, 20 degrees backward extension, 30 degrees right and left lateral flexion, and 90 degrees right and left lateral rotation. Straight leg raising was to 70 degrees on both the left and the right. The examiner noted mild evidence of pain on movement of the spine. However, the examiner found no evidence of extensor hallucis longus weakness or any other weakness. Deep tendon reflexes were normal. While there was subjective sensory deficit at the L5-S1 nerve root on the right side, this was not noted objectively. The veteran could toe and heel walk without any problems. The examiner noted that X-rays of the lumbosacral vertebrae showed fusion of the lumbosacral spine. The examiner diagnosed status post fusion of the lumbosacral spine. In November 1997 an employment statement was received from the veteran. She noted that she had been employed at the Boston VA Medical Center since November 1995 as a secretary, and that her earnings were $1,860.00 per month. She further noted that her projected date of completion of a Master of Science decree in Administration with a concentration in health was in June 1999. A May 1998 VA MRI report of the lumbar spine is of record. It reveals a bone fusion between T12-L1, L1-L2, and L3-L4. It also reveals an attempted fusion between L4-L5 and L5-S1, but the integrity of this fusion was uncertain. Analysis Initially, the Board finds the appellant's claim well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that her claim is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based on the appellant's evidentiary assertion that her service-connected low back disorder is so disabling as to preclude substantially gainful employment; this implies a higher level of disability than is reflected in her current rating. See Proscelle v. Derwinski, 1 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that the claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The Board is satisfied that all available evidence necessary for an equitable disposition of the issues decided herein has been obtained. 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 the 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. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1998). The veteran meets this standard by having a low back disorder currently rated 60 percent disabling. The remaining question is thus whether the veteran is unemployable due to her service-connected disabilities. While the veteran is also service connected with a noncompensable rating assigned for a graft site at the right iliac crest, the claims file contains no medical record of any complaints or difficulties with that graft site, and the veteran has not alleged increased disability of that graft site. The veteran has presented statements and testimony to the effect that her low back disorder is exceedingly disabling, greatly interfering with daily functioning, and thereby warranting a total disability rating for compensation purposes based on unemployability. The 60 percent rating currently in effect for the veteran's low back disorder, post operative status, contemplates pronounced low back disability and the record clearly shows that the low back disorder is pronounced in degree. Her service-connected disabilities likewise clearly preclude more than sedentary employment. However, the appellant is qualified by her education and occupational experience to do sedentary work. During the pendency of this claim and appeal she has been for the most part gainfully employed. This is reflected by the 1992 employment statements noted above. The most recent employment statement received by the RO in November 1997 indicates full time employment as a secretary since November 1995 at a gross monthly salary of $1,860.00. This is clearly gainful employment. Being gainfully employed on a full-time basis is evidence directly opposed to a finding that one or more service-connected disabilities precludes gainful employment. The preponderance of the evidence is against the claim for a total rating for compensation purposes based on individual unemployability. ORDER Entitlement to a total rating for compensation purposes based on individual unemployability is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals