BVA9504858 DOCKET NO. 90-49 241 ) DATE ) ) On appeal from the decisions of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for disc disease of the lumbar spine with radiculopathy, currently assigned a 40 percent evaluation. 2. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from April 1943 to March 1944. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 1990 rating decision of the St. Petersburg, Florida, Regional Office (hereinafter RO), which reduced an evaluation for hypertrophic arthritis of the cervical spine from 30 percent to 20 percent disabling, effective November 27, 1989, and confirmed a 20 percent evaluation for traumatic arthritis of the lumbar spine. By a May 1990 rating decision, the RO denied reopening of a claim for service connection for spinal disc disease with radiculopathy, and denied a total rating based on individual unemployability. In a decision dated May 31, 1991, the Board denied the aforementioned issues on appeal. In January 1993, the United States Court of Veterans Appeals (Court) remanded the case to the Board for readjudication consistent with reasons set forth in the Motion for Remand and to Stay Further Proceedings filed by the Secretary of the Department of Veterans Affairs (VA) in May 1992. [redacted]. In a September 28, 1993 decision, the Board determined that the claim of entitlement to service connection for spinal disc disease with radiculopathy had been reopened, and granted service connection for that disability. Additionally, the Board in that decision remanded the aforementioned remaining issues on appeal to the RO for evidentiary and procedural development. By an August 1994 rating decision, the RO implemented the grant of service connection for spinal disc disease with radiculopathy, and restored a 30 percent evaluation for the cervical spine disability, now classified as disc disease of the cervical spine with radiculopathy, effective July 5, 1978; and increased the evaluation for the lumbar spine disability, now classified as disc disease of the lumbar spine with radiculopathy from 20 percent to 40 percent disabling, effective August 7, 1989. Therefore, the issues of service connection for spinal disc disease with radiculopathy and restoration of a 30 percent rating for the cervical spine disability are moot; and, consequently, the Board will render a decision on the remaining issues on appeal set forth on the title page of this decision. See also January 1995 statement from appellant's representative, limiting the issues on appeal to those delineated on the title page of this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that his back disability is manifested by limitation of motion, radiating pain down the lower extremities, and numbness of the lower extremities, which adversely affect his ability to bend, sit, or stand for any length of time. It is contended that his back symptomatology more nearly approximates a 60 percent rating under 38 C.F.R. § 4.7, Diagnostic Code 5293. He argues that his low back disability, in addition to the service-connected cervical spine disability, precludes substantially gainful employment. Reference is made to recent private medical opinion, in support of that assertion as to his unemployability. It is alleged that he was forced to seek disability retirement from his position as a mail carrier as a result of injuries to the cervical and lumbar spine sustained in a January 1975 fall; and that subsequent attempts to seek employment, despite later achieving a college degree in history, proved futile on account of the severity of his service-connected disabilities. It is requested that the provisions of 38 C.F.R. § 3.321 be considered, pertaining to extraschedular evaluation, and that the benefit of the doubt doctrine be applied. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered the evidence and material of record in the appellant's claims files. 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 allowance of an evaluation in excess of 40 percent for disc disease of the lumbar spine with radiculopathy. However, the evidence is in equipoise to warrant a grant of a total rating based on individual unemployability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The appellant has a Bachelor of Arts degree in history. 3. He has had occupational experience as a postal employee, including mail carrier. 4. He reportedly has not been gainfully employed since 1976. 5. His service-connected lumbar spine disability is manifested primarily by complaints of back pain with radiation down the lower extremities, no more than severe overall limitation of motion of the back, and radiographic findings of degenerative changes and disc disease of the lumbosacral spine. There is no recent clinical evidence of lumbar paraspinal muscle spasms or absent deep tendon reflexes of the lower extremities. He ambulates slowly, but with a satisfactory gait. No more than severe neurologic deficits of the lower extremities attributable to the back disability have been shown. Pronounced intervertebral disc syndrome of the lumbosacral spine has not been objectively demonstrated. 6. In addition to disc disease of the lumbar spine with radiculopathy, currently rated as 40 percent disabling, service connection is in effect for disc disease of the cervical spine with radiculopathy, currently rated as 30 percent disabling. When combined, the service-connected disabilities are evaluated as 60 percent disabling. 7. It is more probable that the appellant's service-connected disabilities are of sufficient severity as would prevent him from engaging in some form of substantially gainful employment, even of a sedentary nature, consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for disc disease of the lumbar spine with radiculopathy have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.40, 4.71a, Part 4, Codes 5292, 5293, 5295 (1994). 2. The appellant has service-connected disabilities that are sufficient to produce unemployability. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), 4.18 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. An Evaluation in Excess of 40 Percent for Disc Disease of the Lumbar Spine with Radiculopathy Initially, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, the Board must examine the record and determine whether the VA has any further obligation to assist in the development of his claim. 38 U.S.C.A. § 5107(a). After reviewing the record, the Board is satisfied that all relevant facts have been properly developed and that no useful purpose would be served by again remanding the case with directions to provide further assistance to the appellant. A comprehensive medical history and detailed clinical findings regarding his low back disability over the years are documented in the medical evidence. Pursuant to the Board's September 1993 remand, VA orthopedic and neurologic examinations were conducted. The evidentiary record includes recent reports of January 1994 VA orthopedic and neurologic examinations, and a June 1994 VA orthopedic examination, which are sufficiently detailed and comprehensive regarding the nature and severity of the low back disability. The examination reports contained range of motion studies of the low back and other clinical findings, including radiographic and neurologic findings. The appellant has not submitted more recent clinical evidence reflective of worsening of his low back disability, nor has he indicated that any such records exist. Thus, the Board concludes that the evidence is sufficient for purposes of reaching a fair and well-reasoned decision of this issue, and that the duty to assist the appellant as contemplated by 38 U.S.C.A. § 5107(a) has been satisfied. Disability evaluations are determined by application of a schedule of ratings which is based on average impairment of earning capacity under the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board will consider the appellant's low back disability in the context of the total history of that disability, particularly as it affects the ordinary conditions of daily life, including employment, as required by the provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). However, as the Court stated in Francisco v. Brown, 7 Vet.App. 55, 58 (1994), "Where...an increase in the disability rating is at issue, the present level of disability is of primary concern." The appellant's service medical records reflect that in December 1943, he sustained a traumatic injury to the low back when he was thrown from the rear of a truck. He was treated for lumbosacral sprain/strain, and returned to duty with improvement reported. Postservice, clinical records in the 1940's reflect complaints of low back pain radiating down the right lower extremity, with diminished right ankle jerk. However, clinical records in the 1960's and early to mid-1970's revealed that despite complaints of radiating low back pain, he had remained employed for the past approximate 30 years, his gait was normal, overall limitation of motion was no more than moderately restricted, and deep tendon reflexes in the lower extremities were present and active. See VA outpatient reports dated in 1966, and VA examination reports dated in September 1966, November 1970, and January 1975. Clinical evidence reflects that later in January 1975, the appellant slipped and fell, exacerbating his low back disability, as evidenced by radiation of pain down the lower extremities. However, while there was some decreased range of motion of the back, there were no significant neurologic deficits of the lower extremities shown. See 1975 and August 1976 clinical reports from E. Michael Okin, M.D. During an April 1976 personal hearing, the appellant testified that after that January 1975 fall, he filed for disability retirement from the postal service in April 1976 on account of cervical and back pain. See April 1976 hearing transcript, at T.5. In a July 1977 statement, Dr. Okin opined that the appellant had not significantly improved to be able to return to gainful employment. In a September 1979 statement, Dr. Okin reported that the appellant's tolerance for ambulation was 2 to 3 blocks prior to experiencing back discomfort, his tolerance for sitting was approximately half an hour, and that he had difficulty bending and lifting. However, his gait was normal, there were no paraspinal muscle spasms, and athough there was some limitation of back motion, no neurologic deficits were shown. A September 1979 statement from Bong S. Lee, M.D., contained essentially similar findings; and, significantly, he opined that the appellant was not totally disabled, and could perform part-time employment, particularly of a sedentary nature. Subsequent VA and private medical reports in the 1980's revealed some limitation of back motion and occasional mild muscle spasm, but no significant neurologic deficits of the lower extremities. See reports of June 1988 and November 1989 VA examinations, and private medical records dated in 1989. In a December 1986 statement, Dr. Okin opined that the appellant was unemployable, but he appears to have based this conclusion primarily upon cervical, not lumbar, disability. In a February 1990 statement, Stephen J. Flood, M.D., reported that the appellant complained of low back pain radiating down the lower extremities. However, it was indicated that he could ambulate a couple of miles. Low back motion was clinically described as approximately 60 percent [of normal], and although muscle spasms were reported, there were no neurologic deficits of the lower extremities shown. Dr. Flood's records included two range of motion studies, which listed normal ranges of motion of the back for reference purposes as: Forward flexion, 0 to 90 degrees; and backward extension, lateral flexion, and rotation, each 0 to 30 degrees. On one study, the appellant's back had 80 degrees forward flexion, 30 degrees backward extension, 20 degrees lateral flexion, bilaterally, and 20 degrees rotation, bilaterally. On the other study, forward flexion was to 50 degrees, backward extension was to 15 degrees, lateral flexion was to 10 degrees, bilaterally, and rotation was to 10 degrees, bilaterally; and deep tendon reflexes were active and equal. These overall ranges of motion of the back, when compared to the normal ranges of motion as cited for reference, may not be reasonably characterized as more than severe in degree. It should be pointed out that, from an industrial standpoint, the most important motion of the back is forward flexion, since it is utilized for bending, lifting and pushing. More recent reports of VA orthopedic examinations dated in January and June 1994 reflect similar degrees of motion of the lumbosacral spine. A 40 percent evaluation is the maximum evaluation assignable under Diagnostic Code 5292 for severe limitation of motion of the lumbar segment of the spine, in the absence of ankylosis. 38 C.F.R. Part 4, Code 5292. A 40 percent evaluation is the maximum evaluation assignable under Diagnostic Code 5295 for severe lumbosacral strain. 38 C.F.R. Part 4, Code 5295. A 40 percent evaluation may be assigned for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc), and little intermittent relief. 38 C.F.R. Part 4, Code 5293. The RO, in its August 1994 decision, rated the appellant's back disability under Diagnostic Codes 5292-5293 for severe limitation of motion or severe intervertebral disc syndrome of the lumbosacral spine, and granted a 40 percent evaluation. These January and June 1994 VA examinations revealed that his gait was described as satisfactory, albeit slow, and there were no paraspinal muscle spasms or absent deep tendon reflexes reported. Furthermore, a January 1994 VA neurologic examination report revealed that deep tendon reflexes of the lower extremities were all present and equal, albeit somewhat diminished. Even assuming that the diminishment of deep tendon reflexes was attributable to the service-connected back disability, rather than peripheral neuropathy resulting from diabetes mellitus as the January 1994 nerve conduction study findings indicate, these recent clinical findings do not more nearly approximate the criteria for the next higher evaluation, particularly since deep tendon reflexes were present and overall neurologic symptomatology reasonably attributable to the back was not consistent with a pronounced degree of impairment. 38 C.F.R. Part 4, Code 5293. In short, pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc), and little intermittent relief has not been shown. Additionally, while in a September 1994 statement, Dr. Okin opined that the appellant had been unemployable since his 1975 fall, a more recent October 1994 statement from Michael K. VandenBerg, M.D., concluded that the appellant's cervical and lumbar arthritis, in addition to bursitis of the right shoulder (a disability for which service connection is not in effect) were all only moderately symptomatic. The Board has considered the provisions of 38 C.F.R. § 4.40, which relate to functional loss due to pain, weakness or other musculoskeletal pathology. However, the appellant's low back pain and no more than severe overall limitation of motion or severe neurological deficits, are adequately compensated by the current 40 percent evaluation for the degree of functional loss resulting therefrom. The disability picture in question does not more nearly approximate the criteria for the next higher evaluation, for the foregoing reasons. 38 C.F.R. § 4.7. It should be appreciated that rating a disability is an inexact science, as is recognized by the provisions of 38 C.F.R. Part 4, § 4.1. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. An extraschedular evaluation is not warranted, since the evidence does not show that the service-connected low back disability presents such an unusual or exceptional disability picture as to render the regular schedular standards inadequate. 38 C.F.R. § 3.321(b)(1). Significantly, the appellant's low back disorder has not required frequent periods of hospitalization and has not, in and of itself, markedly interfered with employment. The recent clinical evidence reflects no more than severe limitation of motion of the lumbosacral spine, and he retains considerable ranges of motion. His low back disability does not preclude ambulation, driving, dressing, or performance of other daily activities and functions, albeit these activities are limited by his back pain and radiculopathy as contemplated by the 40 percent rating assigned. Furthermore, his back pain has not been clinically described as constant or excruciating in severity, and his lumbar radiculopathy has not been clinically shown to result in significant motor impairment in the lower extremities productive of serious gait impairment. Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). II. A Total Rating for Compensation Purposes Based on Individual Unemployability Given the Board's favorable decision granting a total rating based on individual unemployability, the claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board would be remiss in not pointing out that, in deciding this issue, it has relied upon the existing evidence of record, without remanding again for additional evidentiary development. In the Board's opinion, the RO could have developed the evidentiary record more thoroughly. For example, the social and industrial survey and the January and June 1994 VA examinations did not detail the impact the service-connected disabilities have upon his employability. Moreover, a December 1985 Board decision on a vocational and rehabilitation training issue cited to vocational counseling records dated in the early 1980's. However, these records, which may be material to the unemployability issue in question, are not currently associated with the claims folder, and it is unclear whether the RO attempted to obtain them, assuming these still exist. The Board has balanced these evidentiary concerns with the fact that the issue of a total rating based on individual unemployability has been in appellate status for nearly five years. A delay of justice is troubling to the Board, and to order another remand for the RO to more appropriately develop the evidentiary record would likely significantly add to the delay. Therefore, based upon the evidence existing in the claims folder, the Board has applied the benefit of the doubt doctrine and other relevant laws and regulations, and decided this issue. An issue for resolution is whether the appellant's service-connected disabilities, either singularly or in combination, preclude substantially gainful employment. It is reasonable to assume that an employer might be very hesitant to hire the appellant on account of chronic cervical and lumbosacral pain associated with degenerative disc disease, and that these disabilities might preclude positions requiring considerable ambulation or physical exertion. A total disability rating is based primarily on the average impairment of earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. 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. § 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The RO has rated the appellant's service-connected disabilities as combined 60 percent disabling. It appears that the service- connected disc disease of the cervical and lumbar spine represent disabilities resulting from common etiology or a single accident (i.e., inservice vehicular accident in December 1943), and therefore constitute one disability ratable at 60 percent for purposes of determining eligibility under 38 C.F.R. § 4.16(a). Therefore, he is eligible under 38 C.F.R. § 4.16(a) for assignment of a total disability rating for compensation purposes based on individual unemployability, since the percentage standards are met. In pertinent part, marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). For purposes of deciding the issue of a total rating based on individual unemployability, the Board will consider the appellant's service-connected disc disease of the cervical and lumbar spine with radiculopathy, as required by the provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. The service-connected low back disability is appropriately rated as 40 percent disabling, as discussed in Part I of this decision. In summary, the appellant has complaints of low back pain radiating down the lower extremities, but clinically, there is no more than severe overall limitation of motion of the back; and no significant gait impairment has been shown despite some neurologic deficits of the lower extremities. In the 1960's and early 1970's, the appellant complained of cervical pain and stiffness. Clinically, there was some decreased range of motion of the cervical spine described as 50 percent [of normal] and muscle spasms. See November 1970 VA examination report. Reports of January 1975 orthopedic and neurologic examinations revealed marked cervical muscle spasm, rather severe limitation of motion, and complaints of radicular symptoms. However, neurologic findings were essentially unremarkable. Subsequent clinical records reflect that later in January 1975, he fell at work and experienced cervical pain; and thereafter in the 1970's, some absent reflexes, particularly at the triceps level, were reported. During personal hearings in April 1976 and July 1978, the appellant testified that he had been a postal mail carrier prior to that January 1975 accidental fall, and thereafter, filed for disability retirement on account of cervical and low back disability. See April 1976 hearing transcript, at T.5; and July 1978 hearing transcript, at T. 12-14. Interestingly, during a November 1979 personal hearing, he testified that he had not subsequently sought employment due to a limited tolerance for sitting. See November 1979 hearing transcript, at T. 5. In a September 1979 statement, Dr. Lee reported that the appellant wore a cervical collar and back brace, that cervical ranges of motion were 50 percent of normal, and that there were no neurologic deficits involving the upper extremities. He considered the appellant not totally disabled, in that he could engage in part-time employment, particularly of a sedentary nature. In the early 1980's, the appellant earned a bachelor of arts degree in history. Significantly, in a December 1986 statement, Dr. Okin opined that the appellant was unemployable due to severe pain and limitation of motion of the cervical region. In a February 1990 statement, Dr. Flood reported that the appellant had marked limitation of cervical motion of approximately 30 to 40 percent of normal. Although muscle spasms were reported, there were no absent reflexes in the upper extremities, although reflexes were somewhat diminished. Dr. Flood's records included two range of motion studies, which listed for reference purposes normal ranges of motion of the cervical spine. The appellant's overall ranges of motion of the cervical spine, when compared to the normal ranges of motion as cited for reference, may not be reasonably characterized as more than severe in degree. Subsequent VA orthopedic examinations in January and June 1994 contain essentially similar findings; and a January 1994 VA neurologic examination did not reveal absent reflexes in the upper extremities despite some evidence of radiculopathy. The cervical spine disability is rated 30 percent disabling which is the maximum evaluation assignable under Diagnostic Code 5290 for severe limitation of motion of the cervical segment of the spine, in the absence of ankylosis. 38 C.F.R. Part 4, Code 5290. The RO found that in light of the lack of significant neurological deficits, the cervical spine disability did not approximate a 40 percent rating for intervertebral disc syndrome. 38 C.F.R. Part 4, Code 5293. Private physical therapy records dated in February 1990 reflect that the appellant indicated in a questionnaire that pain medication gave him complete relief of pain; that pain prevented heavy lifting but not light to medium weights; that pain prevented him from walking more than one mile; and that pain prevented him from sitting or standing more than one hour. Clinically, it was estimated that he would be able to lift frequently up to 10 pounds, and occasionally 20 pounds; carry frequently up to 10 pounds, and occasionally 15 pounds; and occasionally perform tasks requiring pushing, pulling, squatting, crawling, climbing, and reaching above shoulder level, but never bending. Additionally, it was indicated that the appellant could be expected to be able to sit, stand, or walk 2 to 3 hours, and alternatively sit and stand 3 to 4 hours, during an 8 hour workday with two fifteen minute breaks and a half hour meal break. In this regard, it is commonly known that even sedentary employment situations require that an individual have the ability to sit for substantial periods of time. It is the Board's opinion that a reasonable doubt has been raised as to whether the appellant's ability to work 2 to 4 hours a day constitutes marginal employment. In Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991), the United States Court of Veterans Appeals stated: Neither the U. S. Code nor the Code of Federal Regulations offers a definition for "substantially gainful occupation." The VA Adjudication Manual M21-1 (M21-1) § 50.55 (8), defines "substantially gainful employment" as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." This suggests a living wage. The Board has considered the September 1979 statement from Dr. Lee, indicating that the appellant's service-connected cervical and lumbar spine disabilities preclude more than part-time sedentary employment, and July 1977, September 1979, December 1986, and September 1994 statements from Dr. Okin that these disabilities preclude gainful employment. The negative evidence includes the fact that the appellant's service-connected disabilities did not preclude substantially gainful employment for nearly 30 years prior to his January 1975 fall, despite limitation of motion of the cervical and lumbar spine, muscle spasms, and complaints of radicular symptoms in the upper and lower extremities. Moreover, it appears that while that fall exacerbated his service-connected disabilities, they did not markedly permanently worsen after that fall. Additionally, it does not appear that the appellant has recently sought employment, even of a sedentary nature. Arguably, individuals with a college education may be of relatively high job marketability, with commensurate expected earnings potential. The appellant also appeared to relate his unemployability to the fact that prospective employers would not hire him on account of his age, in addition to his physical disabilities; and referred as a factor to a very poor job market during the time period in question. See June 1994 VA social and industrial survey. It should be pointed out that age may not be considered in determining this issue. 38 C.F.R. § 4.19 (1994). Thus, it is at least arguable whether he would, in fact, be unable to obtain and retain gainful occupation. On the other hand, it appears that the appellant has made reasonable efforts to enhance his employability by obtaining his college degree and has tried to obtain employment after that. He described his attempts in the recent social and industrial survey. It may well be that his age is a significant impairment in his ability to obtain employment. However, considering the past medical assessments of the degree of industrial impairment resulting from his service-connected disabilities, the Board believes that there is insufficient evidence to demonstrate that his age is the primary reason for his lack of employment. It is the Board's opinion that the positive and negative evidence is in relative equipoise as to whether the appellant's service-connected disabilities, either singularly or in combination, actually preclude more than marginal employment; to wit, "substantially gainful employment." There is a lack of credible evidence to support the proposition that he is, in fact, employable, or that his unemployability is attributable primarily to disabilities for which service connection is not in effect. While he has disabilities for which service connection is not in effect, and these conditions may adversely impact upon his employability, nevertheless, his service-connected disabilities have been shown to be rather serious. Moreover, private medical opinion attributes the appellant's inability to engage in more than marginal employment to the service-connected disabilities. The Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment. Colvin v. Derwinski, 1 Vet.App. 171 (1991). For the foregoing reasons, and without any clear or direct evidence of the appellant's ability to engage in gainful employment when considering solely the service-connected disabilities, the Board concludes that the service-connected disabilities more likely preclude substantially gainful employment. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Accordingly, entitlement to a total rating based on individual unemployability is granted. ORDER An evaluation in excess of 40 percent for disc disease of the lumbar spine with radiculopathy is denied. The appeal is denied to that extent. A total rating for compensation purposes based on individual unemployability is granted, subject to the applicable regulatory provisions governing payment of monetary awards. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.