Citation Nr: 0026723 Decision Date: 10/05/00 Archive Date: 10/12/00 DOCKET NO. 98-08 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to restoration of a total rating for compensation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from January 1960 to January 1964, and from June 1965 to June 1966. This appeal arises from a January 1998 rating decision of the Department of Veterans Affairs (VA), Jackson, Mississippi, regional office (RO). In February 1999, a video conference hearing was conducted before the Board of Veterans' Appeals (Board) Veterans Law Judge rendering this decision. In September 1999, the Board remanded the case for additional development. Subsequently, a March 2000 rating action continued the prior denial. FINDINGS OF FACT 1. The veteran's income for the year 1998 was below the poverty threshold; his employment for that year constituted marginal employment. 2. The veteran has a service connected back disorder rated as 60 percent disabling. 3. The weight of the medical evidence of record establishes that the veteran is unable to secure or follow a substantially gainful occupation (i.e., more than marginal employment) as a result of his service connected back disability. CONCLUSION OF LAW The veteran's service connected disability renders him individually unemployable for the purpose of entitlement to a total rating; the criteria for restoration of a total rating based on individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 and Part 4 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is currently seeking restoration of his total disability rating based on individual unemployability, which was discontinued as of April 1, 1998. His only service connected disability is residuals of herniated nucleus pulposus, L3-4, with spondylosis at L4, rated as 60 percent disabling. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16 (1999). If there is only one such disability, it shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a) (1999). Thus, the veteran meets the requirements under § 4.16(a) based on the 60 percent evaluation for his service connected back disorder. When the veteran's total rating was reduced in 1998, the RO found that he was engaged in more than marginal employment. Marginal employment, generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person, shall generally not be considered substantially gainful. 38 C.F.R. § 4.16(a) (1999). A W-2 form for the year 1998, obtained pursuant to the Board's remand, showed that the veteran earned $4,807 from [redacted] Company during that year; this falls far short of the poverty threshold. See 64 Fed. Reg. 68,413 (1999) (1998 poverty threshold for one person set by the Bureau of the Census at $8,316.00). A VA examination was conducted in December 1997. At that time, the examiner stated that the veteran had reported that he had machines to do the heavy lifting and digging at his job as a supervisor for a fence installation company, and that with his current findings of no instability of the spine and no neurologic deficit, the veteran should be able to continue his job. Subsequent to that examination, a private physician's report dated in April 1998, from Michael C. Molleston, M.D., stated that the veteran had severe symptoms, with inability to stand or walk any length of time, severe anatomic changes to the spine, and that he was completely disabled from the back problem. In order to reconcile the disability picture provided by these two reports, the Board remanded the case for a VA examination. That examination was conducted in October 1999. The examiner reviewed the claims folder and summarized the veteran's medical history in his report. The veteran complained of chronic low back pain. He used a TENS unit. The veteran could drive, but not for any extended length of time. He was able to dress himself for the most part, but had difficulty with shoes and socks. Examination showed significant limitation of motion and functional loss. The VA physician concluded that the likelihood of the veteran's obtaining and maintaining substantially gainful employment was almost nonexistent. He would have problems with lifting, carrying, prolonged sitting, standing or walking, and would have to avoid repetitive squatting, stooping or bending. Additionally, the veteran should not work around unprotected heights or moving machinery. A statement dated in February 2000 from [redacted], the veteran's employer at [redacted] Company, indicated that the veteran was employed part-time and mostly on an intermittent schedule; he averaged less than 20 hours per week at minimum wage. Mr. [redacted] stated that future employment was doubtful because the veteran was unable to work in the capacity in which he was needed; his job required bending, pulling and operating machinery necessary to fence building. In this case, it would appear from the recent objective findings that the veteran is no longer be able to perform more than marginal employment for which he may be qualified, based solely on the service-connected back disability. Importantly, the required activities Mr. [redacted] noted as jeopardizing the veteran's future employment, including bending, pulling and operating machinery, were specifically identified by the most recent VA examiner as precluded by the service connected back disorder. A veteran needs only to demonstrate that there is "an approximate balance of positive and negative evidence" in order to prevail. It is well-established that in order for a claim to be denied, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, it is impossible to say with absolute certainty that the service-connected disability would prevent the veteran from securing or following a gainful occupation. However, after a longitudinal review of the evidentiary record, including the findings of the most recent VA examiner and the statement of his employer (as well as the 1998 W-2 form showing only marginal employment), the Board finds that the evidence for and against the claim is at least in equipoise and, in consideration of the principle of reasonable doubt, the veteran prevails. Accordingly, restoration of a total rating based on individual unemployability is warranted in this case. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.321(b), 4.16 (1999). ORDER Restoration of a total rating for compensation based on individual unemployability is granted. BETTINA S. CALLAWAY Veterans Law Judge Board of Veterans' Appeals