Decision Date: 09/22/95 Archive Date: 01/17/96 DOCKET NO. 92-52 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for psychophysiological musculoskeletal disorder, currently assigned a 30 percent evaluation. 2. Entitlement to a total rating for compensation purposes based upon individual unemployability. REPRESENTATION Appellant represented by: Stephanie Forester, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from August 1974 to September 1975. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an October 1987 rating decision of the Chicago, Illinois, Regional Office (RO), which confirmed a 10 percent rating for a psychophysiological musculoskeletal disorder, confirmed a 10 percent rating for disfiguring laceration scar of the right forehead, and denied a total rating based upon individual unemployability (the issue of an increased rating for right forehead scar was subsequently withdrawn by appellant from the appeal). In a decision rendered November 1, 1989, the Board granted an increased rating of 30 percent for the psychophysiological musculoskeletal disorder, and denied a total rating based upon individual unemployability. In a January 1990 implementing rating decision, the RO assigned a 30 percent rating for psychophysiological musculoskeletal disorder manifested by headaches and back pain, effective June 24, 1987. Thereafter, appellant appealed the Board’s November 1, 1989, decision to the United States Court of Veterans Appeals (Court). On September 16, 1991, the Court rendered a decision, [citation redacted], vacating the Board’s November 1, 1989, decision and remanding the case for readjudication as set forth in the Court’s decision. The Court retained jurisdiction. The RO did not alter the 30 percent rating that had been assigned in the January 1990 rating decision. In April 1992 and March 1994, the Board remanded the case to the RO for evidentiary development. By a rating decision in September 1994, the RO confirmed the 30 percent rating assigned for the psychophysiological musculoskeletal disorder, and denied a total rating based upon individual unemployability. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that his psychophysiological musculoskeletal disorder is of such severity as to warrant a higher evaluation, and that it precludes gainful employment. It is asserted that a 70 percent rating should be assigned, since his psychophysiological disorder produces severe social and industrial inadaptability. Additionally, it is related that any exposure to psychic stress, particularly in a work environment, causes him to experience muscle tension and spasms and tension headaches. It is argued that he remains socially isolated apart from his immediate family, and that although he has had sporadic, brief periods of employment, these periods of employment have been marred by excessive absenteeism on account of his inability to cope with any stressful work environment. Appellant’s attorney contends that recent Department of Veterans Affairs (VA) examinations are inadequate, particularly since the examiners failed to comply with the remand instructions to adequately render opinion as to the degree of severity of appellant’s psychophysiological disorder and its impact on employability. However, she argues that the evidentiary record as it stands supports a grant of a 70 percent rating for that disability and a total rating based upon individual unemployability, and, citing to the lengthy time the case has been in appellate status, asserts that it should not be subject to further remand. She maintains that VA examiners have apparently been unable to differentiate which symptoms are solely due to the service- connected psychophysiological disorder versus other conditions, particularly as they affect employability; and, therefore, these symptoms should be considered inextricably intertwined. She alternatively contends that if an allowance of this appeal is not granted, the Board should remand the case again for proper examinations. It is requested that applicable regulatory provisions be considered, including 38 C.F.R. § 4.7, pertaining to the higher of two evaluations, 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 all of 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 evidence is in equipoise to warrant an increased rating of 70 percent for psychophysiological musculoskeletal disorder, and a total rating for compensation purposes based upon individual unemployability. However, the preponderance of the evidence is against allowance of a schedular evaluation in excess of 70 percent for psychophysiological musculoskeletal disorder. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The appellant has attended 11th grade, has achieved a high school equivalency certificate, and has had approximately one year of college. 3. He has had occupational experience as a postal office distribution clerk, construction worker, janitor, and groundskeeper. 4. He reportedly has not been gainfully employed since the mid-1980’s. 5. The appellant’s psychophysiological musculoskeletal disability is manifested primarily by somatic complaints including nonprostrating tension headaches, back pain, and muscle tension, spasms, and tenderness, which are disproportionate to objective clinical findings; anxiety, depression, and difficulty with interpersonal relationships. His psychophysiologic disability more than likely results in severe, but not totally incapacitating, social and industrial inadaptability. 6. In addition to the psychophysiological musculoskeletal disability, now rated as 70 percent disabling, service connection is in effect for a disfiguring laceration scar of the right forehead, currently rated 10 percent disabling. When combined, the service-connected disabilities are now evaluated as 70 percent disabling. 7. It is more than likely 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, nonstressful nature, consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt, the criteria for a 70 percent evaluation for psychophysiological musculoskeletal disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.71a, 4.129, 4.130, 4.132, Code 9505 (1994). 2. The criteria for an evaluation in excess of 70 percent for psychophysiological musculoskeletal disorder 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, 4.20, 4.40, 4.71a, 4.129, 4.130, 4.132, Code 9505 (1994). 3. With resolution of reasonable doubt, 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, 4.18 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Given the Board’s favorable decision granting a 70 percent evaluation for psychophysiological musculoskeletal disorder, and a total rating based on individual unemployability, the claims are “well grounded” within the meaning of 38 U.S.C.A. § 5107(a). After reviewing the record, the Board would be remiss in not pointing out that, in deciding the issues on appeal, 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. As pointed out by appellant’s attorney, for example, the September 1992 VA examinations, with July and August 1994 addendums, did not differentiate which symptoms are solely due to the service- connected psychophysiological disorder versus other conditions, particularly as they affect employability. In short, the RO did not ensure that these examinations complied with the instructions set forth in the Board’s April 1992 and March 1994 remands. The Board has balanced these evidentiary concerns with the fact that the issues on appeal have been in appellate status for nearly seven years. The record, as noted below, shows that the veteran has not worked full time for some years. Since it appears that the comprehensive opinions as requested by the Board are not to be accomplished, a decision will be made based on the evidence on file rather than further delay the appellate decision on these claims. Therefore, based upon the evidence in the claims folders, the Board has applied the benefit of the doubt doctrine and other relevant laws and regulations, and decided these issues. Since the Board has determined, contrary to the RO, that the service-connected psychophysiological disorder should be rated 70 percent disabling, rather than the previously assigned 30 percent, the Board may arguably be required to initially determine whether the claimant would be prejudiced by this determination, with regard to the total rating issue. Bernard v. Brown, 4 Vet.App. 384 (1993). However, since the rating assigned the disability is being increased, and the Board is granting a total rating based on individual unemployability, the claimant will not be prejudiced under the circumstances. I. An Evaluation in Excess of 30 Percent for Psychophysiological Musculoskeletal Disorder 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 service-connected psychophysiological musculoskeletal disorder 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), “[w]here...an increase in the disability rating is at issue, the present level of disability is of primary concern.” The appellant’s service-connected psychophysiologic disability includes psychogenic as well as organic components, and therefore the provisions of Diagnostic Code 9505, pertaining to a psychophysiologic disability, where psychological factors affect musculoskeletal condition, are applicable. NOTE (2), following 38 C.F.R. § 4.132, Code 9505 states, in pertinent part: When two diagnoses, one organic and the other psychological or psychoneurotic, are presented covering the organic and psychiatric aspects of a single disability entity, only one percentage evaluation will be assigned under the appropriate diagnostic code determined by the rating board to represent the major degree of disability. In the Board’s opinion, it is clear that the psychogenic component of the appellant’s psychophysiologic disability represents the major degree of disability, rather than any organic component of that disability entity. Specifically, clinical findings and diagnoses over the years have not shown any significant organic basis for his musculoskeletal symptomatology. See particularly reports of VA examinations dated in November 1976, August 1981, September 1987, referring to a lack of an organic component to the musculoskeletal disorder. In other words, his tension headaches and muscle tension/spasms have been primarily attributed medically to psychogenic etiology. See particularly reports of VA examinations dated in November 1976, August 1981, September 1987, containing diagnoses including psychophysiological disorder manifested by tension headaches and muscle spasms. Since these tension-type headaches are an unlisted condition, it is permissible to rate under a closely related disease or injury in which not only the function is affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Even assuming that there is an organic component to his musculoskeletal symptomatology, appellant’s headaches have not been alleged or clinically shown to be prostrating, equivalent to “migraine with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability”, the criteria for a 50 percent rating, the maximum evaluation assignable, for migraine under Diagnostic Code 8100. Rather, his headaches have been described as diffuse, and occurring primarily under stressful conditions. See VA examinations reports dated in November 1976 and September 1987. Moreover, the testimony at a hearing on appeal has not described prostrating headaches. Similarly, appellant’s back pain, and muscle tension, spasms, and tenderness have not been clinically shown to be equivalent to severe limitation of motion of the lumbar segment of the spine or severe lumbosacral strain (manifested by listing of the whole spine to the opposite side, a positive Goldthwait’s sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or with some of these manifestations if there is also abnormal mobility on forced motion), the criteria for a 40 percent evaluation, the maximum evaluation assignable under the respective Diagnostic Codes 5292 and 5295. Since there is no clinical evidence of disc disease or neurological deficits of the lower extremities, the respective criteria for a 40 percent or 60 percent evaluation for severe or pronounced intervertebral disc syndrome have not been met under Diagnostic Code 5293 either. See reports of VA examinations dated in November 1976, August 1981, and September 1987. For this reason, the Board will consider the regulatory provisions, including Diagnostic Code 9505, applicable to the psychogenic component of appellant’s psychophysiologic disability, since these are more beneficial to the appellant than the rating criteria for evaluating the organic component thereof. The VA’s Schedule for Rating Disabilities provides a general rating formula for psychophysiologic disorders, including Diagnostic Code 9505, based upon the degree of incapacity or impairment: “Mild” social and industrial impairment warrants a 10 percent evaluation; “definite” warrants a 30 percent evaluation; “considerable” warrants a 50 percent evaluation; and “severe” warrants a 70 percent evaluation. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior; and the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132. In Hood v. Brown, 4 Vet.App. 301 (1993), the Court stated that the term “definite” in 38 C.F.R. § 4.132 was “qualitative” in character, whereas the other terms were “quantitative”, and invited the Board to “construe” the term “definite” in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate “reasons or bases” for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a Precedent Opinion, dated November 9, 1993, the General Counsel of the VA concluded that “definite” is to be construed as “distinct, unambiguous, and moderately large in degree.” It represents a degree of social and industrial inadaptability that is “more than moderate, but less than rather large.” VA O.G.C. Prec. Op. No. 9-93, 59 Fed. Reg. 4753 (1994). The Board is bound by this interpretation of the term “definite.” 38 U.S.C.A. § 7104(c) (West 1991). Additionally, in Hood, the term “considerable” was declared as meaning “rather large in extent or degree.” The appellant’s service medical records reflect in January 1975, he complained of back pain and headaches. In March 1975, he allegedly bumped his head and complained of headaches. These were medically described as most likely tension-type headaches. A VA examination report in April 1976 diagnosed a psychophysiological musculoskeletal disorder manifested by tension headaches. On that examination, he reported that he resided with his parents. Additionally, he reported that he had worked three days as a construction laborer, and had not returned to work due to inclement weather. The appellant considered himself unable to presently work. He stated that he experienced anxiety, had few friends, avoided social affairs, and experienced frequent tension. He related that he had headaches for which he took medication. His complaints included occasional depression. Psychophysiological musculoskeletal disorder manifested by tension headaches was diagnosed. Similar complaints and findings were reported on VA examinations in 1976 and April 1978. During the former examination, he stated that he had had brief employment as a laborer in ten construction jobs, each lasting between a couple days to a week, the last one held a month ago. VA outpatient treatment reports dated in June 1980 and March 1981 indicated that appellant lacked motivation for working, and reportedly was attending college pursuant to VA vocational rehabilitation auspices. A VA examination report dated in August 1981 reflects that appellant complained of stress, and muscle tightness and spasms. He related that he experienced muscle pain and spasms when under stress. He reportedly worked part-time while attending college. His social and industrial adjustment were described as minimal and moderate, respectively. Private clinical records from Ralph E. Samuelson, M.D., dated in the mid-1980’s indicate that appellant was evaluated regarding his ability to perform employment as a federal postal service distribution clerk. He had musculoskeletal complaints, including low back tenderness, in addition to anxiety and depression. There was no limitation of motion of his joints, including the back, however. Significantly, Dr. Samuelson considered the appellant physically able to perform his job requirements, although noting that muscle fatigue and pain would render it difficult. In a March 1987 Social Security Administration (SSA) Administrative Law Judge’s decision, it was determined that appellant had severe somatoform and personality disorders with flat affect and schizoid tendencies, low back pain, and headaches. It was indicated that he had been employed full- time as a postal service worker from January 1982 to January 1983, but actually had absenteeism approximately half the time. A VA neuropsychiatric examination report dated in September 1987 reflects that appellant complained of headaches and muscle spasms while under stress. He had an anxious mood with underlying depression. Cognitive functions were intact. Significantly, his social and industrial adjustment were described as minimal and moderate to nil, respectively. During that examination, a neuropsychologic evaluation was conducted. He reportedly had had very sporadic employment in construction, including three days of work the past month. He stated that even light industrial activities caused him to have muscle tension, precluding work. He had attended approximately one year of college, studying marketing. He appeared mildly depressed and anxious. Psychologic testing was administered, and anxiety, depression, somatic preoccupation, poor social judgment, and passive-dependent orientation were among the findings. Significantly, his psychophysiologic disorder was considered moderately severe. During that examination, a social worker’s evaluation reported that he had achieved a high school equivalency certificate. He appeared tense, and reportedly was taking antidepressant medication. VA medical reports dated in November 1988 reflect that appellant had slight muscle spasms and tenderness of the low back, without neurologic deficits. A VA statement of treatment referred to his having a psychophysiological musculoskeletal disorder manifested by tension headaches, and noted that any stress would trigger muscle pain and tension headaches. During a hearing on appeal in January 1989, appellant testified that he had last been employed as a postal service mail handler from October 1982 to May 1985, and had left that job, in part, due to his health. He explained that approximately half that time, he had had absenteeism due to muscle tension and stress. A VA psychiatric examination report dated in September 1992 reflects that appellant’s complaints included depression, anxiety, and muscle spasms. He reportedly had worked two days at light labor the past month. Clinically, he did not appear depressed, although his mood was described as tense. His cognitive functioning was intact and his affect appropriate. Psychophysiologic musculoskeletal disorder was diagnosed. Significantly, in an August 1994 addendum, that examiner clarified that, upon review of this report, he recalled that appellant felt his physical discomfort and limitations were contributing to his depression. Additionally, the examiner noted appellant’s anxiety level was mild to moderate; and that he was considered unemployable at that time. This is a significant, positive piece of evidence, in that the examiner, even though referring to anxiety as only mild to moderate in degree, nevertheless apparently judged the overall severity of his psychiatric disability as rendering him unemployable. Since the service- connected psychophysiological musculoskeletal disorder was the only psychiatric disability diagnosed on that examination, presumably the examiner was attributing appellant’s unemployability to that disability; and this is a reasonable inference that may be made. This positive piece of evidence is suggestive of a rather severe degree of psychiatric disability. During that September 1992 examination, a neuropsychologic evaluation was conducted. Appellant stated that even light industrial activities caused him great muscle tension, precluding work. He appeared mildly anxious and depressed, clinically. However, when psychologic testing was administered, findings included an increased amount of severe anxiety and tension that adversely affected even routine tasks, worsening severe depression, and somatic symptoms (which were noted to be utilized by him to avoid anxiety producing and depressing situations). In an August 1994 addendum, another psychologist reviewed this neuropsychologic examination report, and stated that the test results indicated severe anxiety and depression. He also commented that it appeared the appellant had not been gainfully employed for sometime. This positive piece of evidence is suggestive of a severe degree of psychiatric disability. During that September 1992 examination, a social worker’s evaluation was accomplished. She indicated that appellant had not been regularly employed since employed by the postal service in 1985. It was indicated that he occasionally sought short-term jobs as a laborer, and he stated that between jobs, he required several days or weeks to recuperate from the job stress. He reported working at one job very briefly that year, and five brief jobs the previous year. He indicated that he preferred solitary activities usually, and had few social contacts outside his immediate family. He complained of headaches, occurring one to two times per month, lasting one to two days. He complained of depression, and symptoms of muscle tightness. The social worker’s assessment noted that appellant viewed himself totally disabled. She noted that he had a low level of involvement with his family, no structured routines, and that it was difficult to assess his anxiety and headaches. She commented that he did not appear particularly anxious, despite his allegation of substantial anxiety affecting his life; and that he had little motivation for work. She concluded that he might be unemployable, but that it was not solely due to his service-connected disability. In her July 1994 addendum, this social worker referred to appellant’s use of alcohol and marijuana in terms of generally decreasing ones motivation for work, but suggested that the marijuana might be “self-medication.” She opined that appellant’s personality factors “influenced” his employability. This piece of negative evidence, however, is outweighed by the totality of the evidentiary record, including the recent examination reports by VA psychiatrist and psychologist, which more persuasively suggest that appellant’s overall psychophysiological disorder symptomatology includes a severe level of depression and anxiety, that he is socially alienated except for the most intimate relationships, and that his anxiety, depression, and somatic complaints involving primarily the musculoskeletal system severely adversely affect his employability. The positive evidence includes the long-standing history of anxiety, depression, difficulties with interpersonal relationships, and somatic complaints, including psychogenic pain, tension headaches, back pain, and muscle tension, spasms, and tenderness, which the evidentiary record, as it currently stands, reasonably suggests has seriously adversely affected social and industrial adaptability. The Board concludes that the severity of the psychogenic component of his psychophysiological disability may be reasonably characterized as severe. 38 C.F.R. §§ 4.7, 4.132, Code 9505. In summary, the Board is granting an increased rating of 70 percent for the psychogenic component of the appellant’s psychophysiologic disability. This 70 percent rating for the psychogenic component of that disability represents the major degree of disability presented by the organic and psychogenic aspects of the single psychophysiologic disability entity. 38 C.F.R. § 4.132, Code 9505, NOTE (2). In reaching this determination, the Board has applied the provisions of the Schedule for Rating Disabilities in a manner most beneficial to the appellant. Rating disabilities is not an exact science, as indicated by the Schedule for Rating Disabilities: 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 disabilities 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 disabilities. 38 C.F.R. § 4.1. An evaluation in excess of 70 percent for the psychophysiological disability, however, is not warranted, since the disability has been clinically reported to be no more than severe; not more nearly reflective of totally incapacitating psychoneurotic symptomatology. The 70 percent rating adequately compensates for the commensurate degree of severity shown. An extraschedular evaluation is not warranted, since the evidence does not show that the psychophysiological disability presents such an unusual or exceptional disability picture as to render the application of the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(1). II. A Total Rating Based Upon Individual Unemployability The evidentiary record, as previously discussed in the above section of this decision, reveals that the service-connected psychophysiological disability is manifested primarily by somatic complaints including nonprostrating tension headaches, back pain, and muscle tension, spasms, and tenderness, which are disproportionate to objective clinical findings; and anxiety, depression, and difficulty with interpersonal relationships. It is reiterated that the appellant has attended 11th grade, has achieved a high school equivalency certificate, and has had approximately one year of college. He has had occupational experience as a postal office distribution clerk, construction worker, janitor, and groundskeeper. He reportedly has not been gainfully employed since the mid- 1980’s. See March 1987 Social Security Administration (SSA) Administrative Law Judge’s decision, wherein it was determined that appellant had severe somatoform and personality disorders with flat affect and schizoid tendencies, low back pain, and headaches; and that he had been employed full-time as a postal service worker from January 1982 to January 1983, but actually had absenteeism approximately half the time. 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 disabilities; 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 Board has herein determined that the appellant’s psychophysiological musculoskeletal disorder should be rated 70 percent disabling. His other service-connected disability, a disfiguring laceration scar of the right forehead, is currently rated 10 percent disabling; and the clinical evidence does not reveal that this service-connected disability significantly affects employability, nor is it otherwise contended. Therefore, the service-connected disabilities are currently evaluated as combined 70 percent disabling. See 38 C.F.R. § 4.25 (1994), Combined Ratings Table. Since the service-connected disabilities are currently considered as combined 70 percent disabling, he meets the eligibility percentage standards set forth in 38 C.F.R. § 4.16(a) for assignment of a total disability rating based on individual unemployability. The issue for resolution is whether his service-connected disabilities in fact render him unable to secure or retain any form of substantially gainful employment. 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 particular 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. A 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. The Board concedes that the appellant may be unable to engage in some positions of a heavy manual labor nature, or requiring considerable degree of stress, since he has alleged somatic complaints, anxiety, depression, and associated symptomatology when exposed to stressful, or physically fatiguing industrial activities. While a VA medical record dated in November 1988 stated that any stress would trigger muscle pain and tension headaches, it did not state that this would preclude all forms of substantially gainful employment. It is commonly known that employment generally creates some degree of psychic stress, no matter what type of work is involved; and that normally individuals are capable of coping with varying degrees of stress. It is apparent that appellant alleges that he cannot cope with any stress, particularly stress that is generated in his usual occupation as a construction worker. Appellant’s testimony as well as other evidence clearly indicate he considers himself totally unemployable on account of his psychophysiologic musculoskeletal disorder. Neither his written statements nor his testimony suggest that he has attempted to seek employment of a light manual, relatively nonstressful nature, but to the contrary, indicate that he has sought employment requiring strenuous manual labor. The issue for resolution is whether nonstrenuous, sedentary positions would be precluded by his service-connected disabilities. The evidentiary record unfortunately does not include a specific medical opinion regarding whether appellant is capable of withstanding any stress in a work environment. In fact, the Court, in its September 16, 1991, decision, referred to this absence of medical opinion regarding this point as a matter that the Board in its November 1, 1989 (vacated) decision failed to adequately address; and indicated that the Board’s reliance upon its own opinion on this point constituted a violation of previous Court rulings. The positive evidence includes the November 1988 VA medical record suggesting that any stress exposure appellant experienced resulted in a psychophysiologic reaction. Additionally, recent VA examination reports dated in September 1992, with subsequent addendums, include medical opinion which, in part, may be reasonably construed as stating that appellant is presently unemployable due to his psychophysiological musculoskeletal disorder. The negative evidence includes the recent VA social worker’s opinion, suggesting that the service-connected disability alone did not preclude employability. The Board observes that appellant recently reported in a November 1994 statement that he had recently held a construction job lasting two and a half months, which he apparently ended on account of his musculoskeletal problems. This type of brief employment is consistent with his history of brief construction laborer jobs in recent years, as reported in the evidentiary record. The Board recognizes that this brief period of recent employment may not constitute “gainful employment” for purposes of deciding this issue on appeal. The provisions of 38 C.F.R. § 4.16(a) state, in pertinent part, that 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. In Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991), the Court 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 resolved reasonable doubt in the appellant’s favor in finding that the evidentiary record as it currently stands does not reflect that he is able to work more than brief periods of time or earn a livable wage. Arguably, he has attended approximately a year of college, and has not been medically ordered to refrain from performing all forms of gainful employment, such as relatively nonstressful, sedentary-type activities consistent with his educational background. Individuals with his background may have considerable job marketability, with commensurate expected earnings potential. However, given his sporadic work record with significant absenteeism, and the lack of medical opinion indicative of a present ability to engage in and retain gainful employment, even of a relatively nonstressful, sedentary nature, the Board is unable to conclude from the existing record that gainful employment is within his capabilities. It is the Board’s opinion that the positive and negative evidence is in relative equipoise as to whether the appellant’s service-connected psychophysiological musculoskeletal disorder actually precludes more than marginal employment; to wit, “substantially gainful employment.” Again, while he had been employed in relatively strenuous manual labor in recent years, these positions were of relatively brief duration. 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. For the foregoing reasons, and without any clear or direct evidence of the appellant’s ability to work, a total rating based on individual unemployability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. ORDER An increased rating of 70 percent for psychophysiological musculoskeletal disorder and a total rating for compensation purposes based upon individual unemployability are granted, subject to the applicable provisions governing payment of monetary awards. MICHAEL D. LYON 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. - 2 -