Citation Nr: 1751485 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 05-23 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. By way of background, the Board, in December 2010, found that the issue of entitlement to TDIU had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) in connection with a July 2003 increased rating claim for left leg disability. The Board remanded the issue of entitlement to TDIU, as well as entitlement to service connection for reflex sympathetic dystrophy, in December 2010 and March 2015. Since the March 2015 remand, the AOJ granted service connection for reflex sympathetic dystrophy of the left lower extremity in a June 2017 rating decision. Accordingly, the only issue that remains before the Board is entitlement to TDIU. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Moreover, the Board notes that the March 2015 remand directed the AOJ to refer the issue of entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Services. Although it appears that an opinion has not been obtained by the Director of Compensation Services, the Veteran now meets the schedular requirements of 38 C.F.R. § 4.16(a) since the beginning of the appeal period. Accordingly, the Board can proceed with the adjudication of the appeal. FINDING OF FACT The Veteran is unemployable as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his service-connected disabilities, specifically the disabilities of his bilateral lower extremities, prevent him from obtaining and maintaining substantially gainful employment. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R §§ 3.340, 3.34l, 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities are considered as one disability for purposes of one 60 percent disability or one 40 percent disability in combination. 38 C.F.R. § 4.16(a)(1). Here, the Veteran is service-connected for residuals of right knee injury with patellectomy (currently assigned a 20 percent rating); left leg disorder with degenerative joint disease associated with residuals of right knee injury with patellectomy (currently assigned a 30 percent rating); deep vein thrombosis of the left leg associated with residuals of right knee injury with patellectomy (currently assigned a 20 percent rating); reflex sympathetic dystrophy of the left lower extremity associated with left leg disorder with degenerative joint disease (currently assigned a 20 percent rating); residuals of left clavicle fracture (currently assigned a 10 percent rating); and residuals of right pubic bone fracture (currently assigned a 10 percent rating). After consideration of the Veteran's disabilities of the lower extremities, the Board finds that the Veteran has a single disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a)(1). Accordingly, the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) for the entirety of the appeal period. Entitlement to a TDIU is based on an individual's particular circumstances, including education, training, and work history. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009); Beaty v. Brown, 6 Vet. App. 532 (1994). The determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran has an eleventh grade education with a work history that included being a limousine driver, bartender, and laborer. It is the Veteran's contention that he cannot maintain substantially gainful employment due to the pain and swelling of his bilateral lower extremities, specifically his left lower extremity. He reports that he has difficulty standing and walking and that he uses a walker while at home for less than 50 feet of walking and that he uses a power scooter or a walker while in the community. See March 2010 VA examination. In an August 2003 letter, the Veteran's doctor states that the Veteran is "completely disabled for all intents and purposes" and that he is unable to walk for any distances. A September 2005 letter from the Veteran's doctor states that the Veteran had to stop working as a limousine driver due to the pain and swelling of the left foot caused by the reflex sympathetic dystrophy. A March 2010 VA examiner notes that the Veteran no longer drives and that he stopped working as a limousine driver due to his left leg disability. In December 2010, the VA examiner opined that it is as likely as not that the Veteran's service-connected leg disabilities render him unable to obtain and maintain substantially gainful employment consistent with his work history and education experience. Additionally, a June 2015 VA examination report notes that the Veteran's nerve condition impacts his ability to work. Even though the question of whether a veteran is unable to secure or follow a substantially gainful occupation is a factual rather than a medical question, the Board finds the medical evidence noted above to be highly probative in identifying the severity of his service-connected disabilities and the impact of his symptoms on his ability to secure and maintain gainful employment. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Given the Veteran's prolonged work history as a limousine driver and bartender, as well as his eleventh grade education, the Board finds that the pain and swelling of his lower extremities caused by his service-connected disabilities exclude him from maintaining substantially gainful employment. Accordingly, entitlement to TDIU is warranted. ORDER Entitlement to TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs