BVA9507866 DOCKET NO. 93-13 630 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James. J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from March 1967 to November 1969. His military occupational specialty was cook. The case was previously before the Board of Veterans' Appeals (Board) in August 1991 on the issue of entitlement to an increased rating for the herniated nucleus pulposus. At that time, it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for additional development. Subsequent to examination, the evaluation for the herniated nucleus pulposus was increased from 10 percent to 60 percent. The veteran was notified of this decision in a February 1992 letter. Although he subsequently appealed for an earlier effective date, which was granted in an October 1992 rating decision, he did not voice disagreement with the 60 percent evaluation. In June 1992, he filed a claim for a total rating based on individual unemployability; it is from the denial of this benefit that the veteran currently appeals. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that as a result of his back disorder, he is precluded from all forms of substantially gainful employment. He claims that he was forced to leave his employment as a lineman because of pain in the back and numbness in the legs. Finally, he argues that the physician who examined him for the VA compensation examination was not a specialist, and that the examination was inadequate. He makes reference to two statements by specialists, which are contained in the record. 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 preponderance of the evidence is against the veteran's claim for a total rating based on individual unemployability due to service-connected disability. FINDINGS OF FACT 1. The veteran has a high school equivalency diploma and work experience as a cook, lineman and automobile body repairman. He is reported to have last worked in 1991. 2. The sole service-connected disability is a herniated nucleus pulposus, L4-L5, rated 60 percent disabling. 3. The veteran's service-connected disability does not preclude him from engaging in substantially gainful employment, consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service-connected disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well grounded. By this, the Board means that he has submitted a claim which is plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107 (West 1991). In this regard, the Board notes that the veteran made reference to additional opinions by two specialists, the reports of which the veteran states are in the record. The veteran was also examined for compensation purposes by the VA in October 1991, and the examinations were performed by orthopedic and neurological specialists. As these reports are already of record, the Board concludes that remanding the case for additional records would serve no useful purpose. The veteran was also afforded a VA orthopedic examination in March 1993, and he has questioned the adequacy of that examination. A review of that examination report shows that the examiner elicited the veteran's medical history and current complaints. Additionally, a clinical evaluation was accomplished, which referred to various manifestations, range of motion in degrees, and testing results. X-rays that were available were also reviewed by the doctor. Diagnoses and an opinion were also provided by the examiner. In essence, this examination appears to be full and complete, and it was accepted by the RO as sufficient for rating purposes. The examiner also is an orthopedic specialist. The examination accorded for compensation purposes appears to have been appropriately accomplished; there is nothing untoward in the report that would indicate a deficiency. Consequently, a remand for further examination is not in order. At the time of the 1993 VA examination, the veteran reported having been treated on one occasion about 6 months before as an outpatient at a VA facility. Although the RO did not obtain this record, it appears that the evidence of record is in any event sufficiently developed since a thorough orthopedic examination was accomplished and a subsequent medical opinion regarding the veteran's employability status was obtained. The medical opinion was based on more recent clinical data than would be shown in an earlier record for acute problems. The RO otherwise obtained a statement from the veteran's former employer and from a former co-worker. For these reasons, the duty to assist has been met, and no further development is deemed necessary. Disability ratings are based, as far as practicable, on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 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). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a) (1994). On the veteran's June 1992 application for increased compensation based on unemployability, he reported that he had a high school general equivalency diploma, and he had other training as a mechanic and in automobile body repair. He listed his experience as a lineman and self-employed automobile body repairman. The veteran's military record shows that he was a cook. At a personal hearing at the RO in May 1989, he described working as a hydraulic lift operator. Hearing transcript at 10. His 1992 application states that he last worked full time in September 1991, although he was self-employed from August 1991 to February 1992. Service connection is in effect for herniated nucleus pulposus, rated 60 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1994). In December 1987, Thomas M. Fletcher, M.D., provided an opinion that the veteran's permanent physical impairment was 15 percent to the body as a whole, with regard to the lumbar disc injury that had occurred in October 1986. An opinion in August 1990 from Terry M. Brown, D.O., indicates that the veteran's initial permanent physical disability rating was 20 percent, later evaluated by Dr. Fletcher as 15 percent. Dr. Brown pointed out that, based on periodic evaluations in which he treated the veteran, he saw no significant improvement or worsening of the total body condition. The veteran was afforded VA orthopedic and neurologic examinations in October 1991. At the orthopedic examination, he reported that coughing and sneezing increased his back pain only if he coughed hard; he took medication for pain. A history of an industrial injury to the low back in 1986, which had occurred at work while the veteran was climbing poles, was noted. Physical examination revealed no list, scoliosis or paraspinal muscle spasm. Forward flexion of the lumbar spine was to 75 degrees; there was hypertension to -5 degrees; and bilateral lateral flexion was to 15 degrees. Both ankle jerks were absent. Straight leg raising was negative bilaterally. X-rays showed light rotoscoliosis to the right of the lower lumbar spine; there was anterior and lateral spurring at L-2 and L-3 and slight disc space narrowing at L2-3. The impressions were post-operative excision, herniated nucleus pulposus, L4-5 and status post- operative excision of herniated nucleus pulposus, L5-S1. On VA neurological examination in October 1991, the veteran complained of back problems since 1969 or 1970. He reported having pain and weakness in both the right and the left leg; the low back pain was made worse by sitting or standing for long periods of time. The back and leg pain reportedly got better if he was able to lie down. The veteran walked with a slight limp on the right side. Sensory examination demonstrated diminished sensation down the lateral aspect of both the left and the right leg onto the dorsal surface of the left and right foot in an L5 distribution. Ankle reflexes were 0, bilaterally. The impression was residual nerve damage because of herniated nucleus pulposus, times 2, at the L4-5 interspace. A February 1993 statement from the veteran's former employer shows that the veteran's employment ended in March 1991 when he resigned. It was noted that the veteran had lost 5 days of work in 1990 due to disability. Gross earnings in 1990 were $30, 558.54 and gross earnings in 1991 were $7, 682.84. The RO received in February 1993 a statement from a former co- worker of the veteran's which indicated that the veteran's ability as a lineman was limited to working out of a bucket truck. It was observed that a bucket truck was not always available, and the veteran could not climb a pole due to his back injury. During VA orthopedic examination in March 1993, the veteran complained that coughing and sneezing caused his hip to hurt and to have a burning sensation in the sacrococcygeal area. The veteran reported that he had been treated as an outpatient about 6 months earlier at a VA facility. Physical examination revealed no list, scoliosis or paraspinal muscle spasm. Flexion of the lumbar spine was to 85 degrees, with hyperextension to -5 degrees. Knee and ankle joints were normal bilaterally. Straight leg raising was negative bilaterally. X-rays from October 1991 were reviewed. The examiner concluded that the veteran displayed very little from an objective standpoint that would preclude him from doing any type of employment. The examiner did point out that, with a history of having 2 back surgeries, the veteran would be unable to do repeated climbing or bending, or lifting over 50 pounds; he could sit and travel well, and he could also use both feet for controls. In this case, the veteran has argued that other medical opinions contradict the 1993 VA examiner's opinion. The veteran indicated that the opinions should be of record, and he provided no additional medical evidence. There are 2 private medical opinions of record, but they conclude that the veteran, at most, is 20 percent disabled due to the low back. Consequently, the private medical opinions do not support the veteran's claim for a total rating based on unemployability. Significantly, the 1993 VA examiner, who provided the most up-to-date opinion, concluded that the veteran was not unemployable as a result of his low back. The examiner pointed out that there were physical limitations, such as lifting over 50 pounds. However, there were otherwise no limitations on functions on using both feet for controls, and the veteran was evaluated as sitting and traveling well. The examiner concluded that what limitations were present would not preclude employment. This opinion, which is not contradicted in the record, is of high probative value. See Friscia v. Brown, No. 93-766 (U.S. Vet. App. December 21, 1994). There is no objective evidence that shows that the veteran is precluded from obtaining or maintaining gainful employment; thus, a total rating based on individual unemployability due to service-connected disability is not warranted. The evidence from the veteran's former employer shows that he resigned, and there is no mention of disability. The veteran otherwise reported subsequent self-employment as an automobile body repairman. Determination by the Board as to whether or not this employment is marginal is unnecessary since the preponderance of the evidence is against the claim for a total rating. Friscia, slip op. at 4, 5. For the foregoing reasons, the claim must be denied. ORDER A total rating based on individual unemployability due to service-connected disability is denied. M. SABULSKY 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.