Citation Nr: 0814825 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 07-15 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from December 1975 to December 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In February 2008, the veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. A motion to advance this case on the Board's docket was received and granted by the Board in April 2008, for good cause. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected disabilities, with a current combined rating of 70 percent disabling, results in a disability picture which more nearly approximates an inability to obtain or retain substantially gainful employment consistent with his education and work experience. CONCLUSION OF LAW Giving the benefit of the doubt to the veteran, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. Given the fully favorable decision, discussed below, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the veteran is moot or represents harmless error. As to additional notice regarding the effective date to be assigned, the RO will address this matter in effectuating the award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). II. Decision In order to establish service connection for a total rating based upon individual unemployability due to service- connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed.Reg. 2317 (1992). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). In this case, the veteran is service connected for the following disabilities: chronic lymphedema of the right lower extremity, rated as 30 percent disabling; chronic lymphedema of the left lower extremity, rated as 30 percent disabling; and chronic peptic ulcer disease, rated as 20 percent disabling. The veteran has a combined evaluation of 70 percent; therefore, the veteran does meet the percentage prerequisites for entitlement to TDIU under 38 C.F.R. § 4.16(a) (one disability rated at least 60 percent, or a combined rating of 70 percent or more, with one service- connected disability rated at 40 percent or more). The Board must now consider whether his service-connected disabilities render him unable to obtain and retain substantial gainful employment. See 38 C.F.R. §§ 3.321, 4.16(b). As previously stated, the veteran is currently assigned disability ratings with a combined rating of 70 percent. This, in itself, is indicative of significant disabilities. However, upon review of the veteran's claims file, there appears to be no comprehensive medical opinion clearly evaluating the veteran's employability in light of the aggregate impact of his various service-connected disabilities. The Board notes that in an October 1998 VA examination report, it was noted that the veteran's postphlebitic syndrome of both lower extremities with lymphedema and associable positional changes, caused him to stop working approximately two years ago. Additionally, an August 2002 VA outpatient treatment record indicates that the veteran has difficulty maintaining employment and recently stopped working as a mechanic because of his service- connected disabilities affecting his lower extremities. Thus, there is competent evidence showing some notable limitation in the veteran's physical suitability for employment due to his service-connected disabilities. The record reflects that the veteran was most recently employed from March 2002 to April 2006 as a transit driver, including as reported by the veteran during the February 2008 hearing. The Board has also considered the testimony of the veteran's wife during the February 2008 hearing. The probative value of this evidence may be limited to an extent as the veteran and his wife lack the medical expertise to competently attribute any particular deficits of employability to the veteran's service-connected disabilities. However, the lay accounts are very informative in this case. As previously mentioned, the veteran asserted during the February 2008 hearing that he drove a van for several years, but testified that he stopped working because his service-connected disabilities caused extreme joint stiffness, ultimately affecting muscle tissue and preventing him from standing and sitting for long periods of time. In addition, the veteran's wife testified that he stopped working as a transit driver because his prescribed medication for his service-connected disabilities caused him to fall asleep while driving. The Board finds the lay testimony in this case to be reasonably consistent with the objective evidence of record, and the Board finds the statements of the veteran and his wife to be credible. While the veteran indicated during the February 2008 hearing that he graduated from high school and completed two years of college classes in computer and drafting, there is no clear medical evidence which plainly demonstrates that the veteran's service-connected disabilities do not render him unemployable for jobs consistent with his level of education. The Board acknowledges that there is no clear medical opinion of record which assesses the veteran's employability in the context of the combined aggregate of his service-connected disabilities. However, the veteran already has a demonstrated 70 percent combined rating for service-connected disabilities. There is also persuasive evidence that his service-connected disabilities of the lower extremities present significant difficulty to the veteran's physical functioning in a workplace environment. Rather than remand this case for further development of the medical evidence in this regard, the Board believes that there is sufficient evidence supporting the veteran's claim for TDIU. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the facts of this case, and with resolution of all reasonable doubt in the veteran's favor, the Board finds that the appeal is allowed. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs