BVA9505365 DOCKET NO. 90-53 081 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total evaluation based on individual unemployability due to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida, (RO) which denied the benefit sought on appeal. The veteran, who had active service from December 1960 to August 1962 and additional subsequent periods of active duty for training, appealed that decision to the BVA, and the case was initially received at the Board in December 1990. A BVA decision dated in May 1991 affirmed the RO's denial of the benefit sought on appeal. The veteran appealed that decision to the United States Court of Veterans Appeals (Court) and in an order [citation redacted], the Court vacated the Board's decision and remanded the case for further development. BVA decisions dated in August 1992 and May 1993 remanded this case to the RO for further development, and the case was returned to the Board in January 1995. An April 1994 rating decision determined that new and material evidence had not been submitted to reopen a claim for service connection for a psychiatric disorder secondary to the veteran's service-connected back disability. The veteran was notified of that determination by a letter dated in May 1994, and a letter from the veteran dated in June 1994 constitutes a notice of disagreement with that determination. However, this matter is not currently before the Board because the RO has not issued a statement of the case with respect to that issue or included that matter in a supplemental statement of the case. Accordingly, this matter will be referred to the RO for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in not granting the benefit sought on appeal. The veteran maintains, in substance, that his back disability is so severe that he is unable to perform any type of substantially gainful employment. The veteran points out that it has been determined that he is infeasible for vocational rehabilitation training. Reference is made to the evidence of record as supporting his contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the claim for a total evaluation based on individual unemployability due to a service- connected disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected back disability is of such a nature and severity as to preclude all forms of substantially gainful employment in keeping with his education and occupational experience. CONCLUSION OF LAW The requirements for a total evaluation based on individual unemployability due to a service-connected disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16, 4.18 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that the veteran's claim is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. A VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) received by the RO in August 1990 indicates that the veteran had completed a high school equivalency program, had occupational experience as a plant supervisor and auto mechanic and last worked in May 1977. The only disability for which service connection has been established is degenerative disc disease of the lumbar spine, which is evaluated as 60 percent disabling. The evidence for the Board's consideration which is probative of the veteran's capacity for performing substantially gainful employment proximate to his August 1990 application includes the report of a VA examination performed in August 1990, outpatient treatment records, reports of VA examinations performed in conjunction with the veteran's hospitalization for observation and evaluation in July and August 1990 and his vocational counseling/rehabilitation folder. After reviewing this evidence the Board believes that there is a reasonable question as to whether the veteran is precluded from performing all types of substantially gainful employment due to his service-connected back disability, and resolving any reasonable doubt as to that question in the veteran's favor, 38 C.F.R. § 4.3 (1994), the Board concludes that a total evaluation based on individual unemployability due to a service-connected disability is warranted. Were the only evidence for consideration the reports of the VA examinations performed during the July to August 1993 VA hospitalization, the Board would not be inclined to reach a favorable determination. In this regard, the hospital summary indicated that there was no evidence of any pathology which could be causing back or lower extremity pain. Also, upon the veteran's release from the hospital, the discharge instructions placed no restrictions on his physical activity. Nevertheless, the examinations performed during that hospitalization demonstrate that the veteran has no other identifiable psychiatric or medical disorder which would impair his ability to work. There is also for consideration the report of the VA examination performed in August 1990 which disclosed the presence of rather significant limitation of lumbar spine motion with pain on motion that radiated down the left lower extremity. The veteran's vocational rehabilitation file contains letters dated in March 1992 which indicate that the veteran was determined to be permanently infeasible for training and work due to his service- connected disability. Also, there is a counseling record dated in December 1991 which records the counselor's observations in approximately a 1 1/2-hour visit to the veteran's residence. In that narrative report, the veteran's back disability was described as "quite debilitating and productive of 'constant pain' which [was] only abated through medication [and] would make it impossible for him to take on any position that I am aware of." The counselor also reports that he contacted the veteran's VA staff orthopedist and that it was the physician's "opinion that this veteran will never work again and that all he is doing is providing medication to ease the pain. He doesn't feel as if the veteran could work, nor would he be able to work with his service-connected back condition as severe as it is." It would appear that the veteran's low back symptomatology would have improved somewhat by the time of the 1993 hospitalization. However, there are opinions of record which indicate that the veteran is totally disabled due to his service-connected disability, and the RO and the Board are not free to ignore those clinical opinions. Accordingly, a total evaluation based on individual unemployability due to the veteran's service-connected disability is established. ORDER Subject to the provisions governing the award of monetary benefits, a total evaluation based on individual unemployability due to a service-connected disability is granted. WARREN W. RICE, JR. 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.