Citation Nr: 0000164 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 94-12 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total rating for individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: William F. Travis WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael F. Bradican, Associate Counsel INTRODUCTION The veteran served on active duty from July 1952 to September 1968. This case arises before the Board of Veterans' Appeals (Board) on appeal from a rating decision of January 1993, from the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). This matter first came before the Board in April 1997. It was remanded for evidentiary development and a medical examination. The claim next came before the Board in August 1997. The Board's decision was appealed. It is now before the Board again following the United States Court of Veterans Appeals (Court) grant of a joint motion for remand. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran's lumbar spine disorder is currently manifested by moderate to severe loss of range of motion, pain when sitting, standing, or walking, and radiculopathy to the lower extremities, with left drop foot. 3. A private physician has entered an opinion to the effect that the veteran's service connected disabilities render him 60 percent disabled, and that his non-service connected disabilities combined with the service connected disabilities render him 100 percent disabled. 4. A VA physician has rendered an opinion that the veteran's most serious disabilities are his non-service connected diabetes and diabetic neuropathy. 5. The veteran's service connected disabilities do not render him unemployable. CONCLUSION OF LAW The criteria for a total disability evaluation based on individual unemployability due to service-connected disabilities are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The basis for the Court's remand is that although the Board noted that the appellant's service connected lumbar spine disorder was rated as 60 percent disabling, and met the scheduler requirements under 38 C.F.R. § 4.16(a), it did not provide an adequate discussion with regard to this matter. It was also noted that the Board did not attempt to relate the appellant's occupational and educational history to his disability. The Department of Veterans Affairs (VA) will grant a total rating for compensation purposes based on unemployability when the evidence shows that the appellant is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1997). In Hatlestad, v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Veterans Appeals (Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA. 38 U.S.C.A. § 7104(c) (West 1991). In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VA OPGC PREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence, that the unemployability question, that is, the ability or inability to engage in substantial gainful activity, had to be looked at in a practical manner, and that the thrust was whether a particular job was realistically within the capabilities, both physical and mental, of the appellant. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. The Board notes that the veteran is service connected for a lumbar spine disorder which is rated as 60 percent disabling. This disability is more specifically referred to as lumbar laminectomy L5-S1, post-operative status, with traumatic degenerative changes. In addition to this he has non-service connected disabilities which include diabetes mellitus which has resulted in severe peripheral neuropathy and diabetic retinopathy. He also has degenerative joint disease of the thoracic and cervical spines which are also non-service connected. The veteran is currently 63 years old. He graduated from high school, completed 2 1/2 years of college with 74 credit hours towards a law degree at LaSalle University, and completed two years of Paralegal/Legal assistant studies. He has worked as a police officer, a court reporter, paralegal, legal assistant, legal secretary, and criminal investigator. Service connection for a lumbar spine disability was granted in March 1977. An evaluation of 10 percent was assigned. This evaluation was increased to 40 percent in a rating decision of March 1992. It was raised to 60 percent by a rating decision of January 1993. The report of a VA examination, conducted in March 1992, shows the veteran stating that his condition had gotten progressively worse over the prior five years. He described chronic low back pain which varied in severity. It was aggravated by bending, lifting, twisting or stooping. Prolonged sitting, standing, or walking all exacerbated his back. He described pain radiating into the back, into the left leg and down to the foot with a numbness and tingling in the left foot. Examination showed him walking with a limp on the left. The left foot was grossly erythematous and swollen. He was able to stand erect. There was no evidence of spasm and minimal tenderness to palpation. Range of motion of the lumbar spine was 60 degrees of flexion and 20 degrees of extension. Neuro evaluation revealed that he performed a poor toe walk and was unable to heel walk. There was subjective decreased sensation over the left foot. The impression given was chronic lumbar syndrome post-operative excision of L5, S1 disc. A left foot drop, and diabetes mellitus with cellulitis of the left foot were also noted. The report of a VA spine examination, conducted in November 1992, shows the veteran reporting that he can only walk about a block before developing increasing low back and sciatic pain. Examination showed range of motion to be 5 degrees of left lateral bending, 15 degrees of right lateral bending, 60 degrees of flexion, and 10 degrees of extension. He had 1+ back spasm. He had -1 paresis of the posterior tibialis and -1 paresis of the anterior tibialis of the left foot, and will not extend the left toes. He had absent left ankle jerk, diminished knee jerk, and he walked with a left sided limp. The diagnosis given was lumbar canal and/or foramina stenosis syndrome with residual significant back and left lower limb pain and partial foot drop. X-ray examination showed anterior osteophytes of the lumbar spine with narrowing of the L5-S1 disc space. The Board notes the veteran's testimony at his personal hearing, conducted in August 1993. He stated that he cannot sit, walk or stand for long periods of time. He cannot sit for longer than 30 minutes. He uses crutches and a wheelchair to ambulate. He cannot walk farther than one block without his crutches. He stated that he cannot drive either. He reported that he cannot climb stairs due to his left foot drop. He reported spasms in his back and his legs. He also reported bowel and bladder difficulties. Private medical records, dated in January 1995, show the veteran undergoing evaluation in connection with his claim for social security disability. The report showed findings of diabetes, degenerative joint disease of the cervical, thoracic, and lumbar spines; with disc syndrome with nerve damage of the lower back along with osteomyelitis and cellulitis of both feet. The examiner stated that the veteran was impaired in his ability to lift/carry, stand/walk, and sit. Social Security Administration records, dated in April 1995, show the veteran determined to be totally disabled as of August 1992. It was noted that he was 57 years old and had a high school diploma. He was noted to have severe impairments including: degenerative joint disease of the cervical, thoracic, and lumbar spines with lumbar disc disease associated with atrophy of the left calf, type II diabetes mellitus with right foot ulcer and lower extremity neuropathy, and history of diabetic retinopathy and visual deficit of the right eye. Private medical records, dated in October 1995, show the veteran complaining of chronic low back pain with radiation into both lower extremities down the posterior aspect of both thighs into the lateral aspect of both legs into both feet. He admitted weakness of the left foot and paresthesias in the same distribution. He reported his pain is worse with activity. Examination showed his spine was midline. There was only mild tenderness to palpation in the lumbosacral region. He had limited flexion at the trunk. Neurologically he had 2/5 strength in the anterior tibialis on the left with 5/5 in all other muscle groups in the lower extremities. Deep tendon reflexes were diminished at the knees and the ankles bilaterally. There were negative straight leg raises bilaterally. X-ray examination showed some moderate degenerative changes in the lumbosacral region with disc space narrowing at L5-S1. The impression given was lumbar spondylosis with L5 nerve palsy on the left. It was recommended that he continue with conservative treatment including a home exercise program. An MRI of the lumbar spine, with contrast, was performed in January 1996 to rule out spinal stenosis and herniated nucleus pulposus at L5-S1. When compared to a similar study from November 1992 no change was identified. Again noted was subtle small partial laminectomy on the left side at L5, S1 with very minimal scar. There was no evidence of re- herniation. The report of a VA spine examination, conducted on August 20, 1997, shows the veteran stating that he had constant pain in his back and spasm in his low back and pain down both legs. He reported that he had pain sitting, standing, walking, and even lying for more than 15 minutes. He reported numbness and tingling in the hips, atrophy in his buttocks, legs, and feet; impaired bladder and bowel function, and impotency. Examination showed he listed about eight degrees to the right when he stood and slightly flexed his lumbar spine. Range of motion was 60 degrees of forward flexion, 11 degrees of extension, 8 degrees of left lateral flexion, 10 degrees of right lateral flexion, and 5 degrees of rotation bilaterally. He had good gluteal tone and tight lumbar muscles. He complained of pain anywhere he was touched in the low back but not over his sciatic notches. He had a 1+ reflex at the knees bilaterally. Ankle jerk was absent. Both lower extremities were of equal length, the calves and thighs were of equal circumference. The diagnosis given was probable diabetic neuropathy and drop foot on the left possibly secondary to a perineal nerve palsy secondary to herniation of a disc at L5 on the left. The examiner reported that MRI's in 1992 and 1996 showed very little intraspinal pathology. There was no evidence of a disc herniation and no evidence of spinal stenosis per MRI. The examiner commented that the veteran's disability was extreme, however, he could not determine how much was due to his service connected back disability. He stated that he had reviewed the records of the veteran's private physicians. He agreed that the veteran had some residual disability in his low back which was significant for probable foot drop, but that his greatest disability was his diabetes and diabetic neuropathy. He recommended a consultation with neurology to help delineate the disability. Private medical records, dated August 21, 1997, show the veteran reporting constant pain and spasm in the low back and both legs. He reported pain at the end of his spine while sitting, standing or walking. He stated that he has difficulty walking because of weakness and that he has impaired bladder and bowel function and testicular pain and impotency. Physical examination showed his strength was difficult to assess because he gave an inconsistent effort. It was thought to be 4/5 on the left and -5/5 on the right. Straight leg test elicited pain in the back but did not elicit any radicular symptoms. He had an unstable gait and needed to hang on to something when ambulating. He could not do a heel or toe walk or squat. There was no evidence of spasm, however there was some diffuse tenderness throughout the lower spine. There was really no sciatic notch tenderness. There appeared to be some mild atrophy of the left lower extremity. X-ray examination showed decreased disc space at L5-S1. The portion of his dorsal spine present on that X-ray showed complete ankylosis of his dorsal spine vertebral bodies. The impression given was ankylosing spondylitis of the dorsal spine, and degenerative L5 disc, and narcotic addiction. The examiner opined that based on the examination and American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the veteran had a 60 percent permanent partial impairment due to his service connected disability. His non-service connected disorders resulted in 100 percent impairment. The report of a VA neurological examination, conducted in November 1997, shows severe neuropathy of both lower extremities consistent with severe peripheral neuropathy. An MRI of the lumbar spine, conducted in October 1997, showed no changes when compared to a previous exam in January 1996. No nerve root compression was identified. The diagnosis given was that the veteran's severe peripheral neuropathy was due to his diabetes. The objective medical evidence of record indicates that the veteran's lumbar spine disability, which is his sole service connected disability, is currently manifested by moderate to severe loss of range of motion, pain when sitting, standing, or walking, and radiculopathy to the lower extremities, with left drop foot. A summary of the evidence shows that on examination in March 1992 there was no evidence of spasm and minimal tenderness to palpation. Range of motion was 60 degrees of flexion and 20 degrees of extension. His left foot problems were attributed to diabetes. On examination in August 1997 range of motion was 60 degrees of forward flexion, 11 degrees of extension, 8 degrees of left lateral flexion, 10 degrees of right lateral flexion, and 5 degrees of rotation bilaterally. Diabetic neuropathy was diagnosed. Private medical records from August 21, 1997 show his strength was difficult to assess because he gave an inconsistent effort. Straight leg test elicited pain in the back but did not elicit any radicular symptoms. There was no evidence of spasm. The impression given was ankylosing spondylitis of the dorsal spine, degenerative L5 disc, and narcotic addiction. The examiner stated that the veteran had a 60 percent permanent partial impairment due to his service connected disability, and that his non-service connected disorders resulted in 100 percent impairment. On VA examination in August 1997, he examiner commented that he had reviewed the veteran's records from private physicians. He noted that the veteran did have some residual disability in his low back that is significant, but that his greatest disability is his diabetes and diabetic neuropathy. VA neurological examination in November 1997 showed no nerve root compression identified and a diagnosis of severe peripheral neuropathy due to diabetes. The Board finds that the evidence does not show that the veteran's service connected disability precludes him from engaging in any substantially gainful activity. The veteran's primary disabling condition is his non-service connected diabetes mellitus. Two professional medical opinions contained within the claims folder are to the effect that his service connected disabilities do not, alone, render him 100 percent disabled. The evidence reveals that the Social Security Administration decision which found him to be disabled was predicated on his numerous non-service connected disabilities. In documents furnished by the veteran he has described a lifetime of employment in the legal field, primarily in sedentary occupations. The veteran's back disability alone does not render him incapable of sedentary employment. The Board finds that the veteran is not incapable of substantially gainful activity solely on account of his service connected disabilities. ORDER Entitlement to TDIU is denied. M. W. GREENSTREET Member, Board of Veterans' Appeals