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