Citation Nr: 0836906 Decision Date: 10/27/08 Archive Date: 11/05/08 DOCKET NO. 08-05 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant's spouse ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The veteran served on active duty from September 1951 to July 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to TDIU. The veteran's spouse provided testimony at a videoconference hearing before the undersigned Acting Veterans Law Judge in August 2008. A copy of the hearing transcript has been associated with the claims file. Upon request during the hearing, the record was left open for 60 days to allow the veteran to submit additional evidence in support of his claim. Such evidence was received in September 2008 and the veteran signed a written waiver of his right to have this evidence initially considered by the RO. The Board has accepted this evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2007). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The veteran is service-connected for a muscle injury of the left buttocks (Muscle Group XVII), muscle damage of the right hand (dominant), post-operative hernia of the left lower abdomen, bladder incontinence associated with residuals of abdominal muscle injuries, and incisional hernia of the right lower quadrant associated with residuals of abdominal muscle injuries, all five separately rated as 20 percent disabling; and residuals of abdominal muscle injuries and peritoneal adhesions, both separately rated as 10 percent disabling; for a combined rating of 70 percent, effective February 28, 2006. 2. The veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Resolving the doubt in the veteran's favor, the criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Considering the claim for a TDIU on appeal in light of the above-noted legal authority, and given the Board's favorable disposition of the claim, the Board finds that all necessary notification and development action on this matter has been accomplished. Pertinent Laws and Regulations 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. § 3.340 (2007). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2007). In evaluating total disability, 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 effects of combinations of disability. 38 C.F.R. § 4.15 (2007). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided that he has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice- connected disabilities will be disregarded if the above- stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 4.16(a) (2007). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce 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. Id. If the veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a TDIU cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294 (1994). Analysis The service-connected disabilities for which the veteran currently has been rated are: a muscle injury of the left buttocks (Muscle Group XVII), muscle damage of the right hand (dominant), post-operative hernia of the left lower abdomen, bladder incontinence associated with residuals of abdominal muscle injuries, and incisional hernia of the right lower quadrant associated with residuals of abdominal muscle injuries, all five separately rated as 20 percent disabling; and residuals of abdominal muscle injuries and peritoneal adhesions, both separately rated as 10 percent disabling; for a combined rating of 70 percent, effective February 28, 2006. Initially, the Board observes that, even though the veteran has a combined rating of 70 percent, the percentage standards of 4.16(a) have not been met as with two or more service- connected disabilities, at least one disability must be rated at 40 percent or higher. See 38 C.F.R. § 4.16(a). However, given the provisions of 38 C.F.R. § 4.16(b), cited to above, consideration of whether the veteran is, in fact, unemployable, is still necessary in this case. In statements presented throughout the appeal, the veteran has maintained that his service-connected disabilities preclude him from obtaining substantially gainful employment. During an August 2008 hearing before the Board, the veteran's wife provided testimony that his current bladder incontinence was his most severely limiting condition and precludes the veteran from securing any substantially gainful employment. She stated that, because of bladder incontinence, the veteran has to get up and go to the bathroom every 10 minutes, wear urinary pads when he has to go somewhere, keep a urine bottle with him at all times, and, as he was mostly in bed both day and night, has to use a rubber bed pad for daily urinary leakage. His spouse testified that the veteran last worked on March 26, 1995. VA outpatient treatment reports from February 2005 to April 2007 reflect that the veteran was variously treated for and assessed with several conditions, including urinary incontinence. In a February 2006 statement, one of the veteran's private physicians, T. C. R., M.D., reported that in addition to his service-connected disabilities, the veteran also had developed other disabilities which conceivably related back to his gunshot wound in service. This physician specifically noted that the veteran had significant problems related to constipation and bowel and bladder incontinence. In a March 2006 statement, the veteran's primary care physician at the Hyannis VA Medical Center (VAMC) reported he had developed a number of debilitating conditions and was now totally disabled. She noted that the veteran's health problems included a stroke, Parkinson's disease, coronary artery disease and chronic bowel dysfunction. The veteran also continued to suffer the effects of a hernia at the site of his combat-related injury and was having increased pain in his right hand, also a combat-related injury. The physician noted that due to his stroke and Parkinson 's disease, he was unable to change his position in bed and could not transfer unassisted. As such, the effects of the veteran's bowel dysfunction and the limitation of the use of his right hand were therefore magnified. In a May 2007 statement, Dr. T. C. R noted that the veteran had developed several medical conditions since service including coronary artery disease with coronary artery bypass graft (CABG) surgery, implanted cardiac defibrillator, cerebrovascular hemorrhage with left hemiparesis, subdural hematoma, transurethral prostatectomy, left above-the-knee amputation, and worsening problems with urinary continence requiring diapers. This physician indicated that many of the veteran's current medical concerns reference his prior gunshot wound as he still had a post-operative abdominal hernia, significant neuropathy and pervasive bowel and bladder continence issues and, as such, it was clear that the veteran was not employable secondary to disability. During a June 2007 VA genitourinary examination, the veteran reported undergoing a transurethral resection of the prostate (TURP) for some urinary symptoms-slowness and dribbling-in 2001, and that he was scheduled to have another performed. He stated that he still has severe urinary symptoms. The veteran still has an increased amount of urinary dribbling for which he wears approximately five to six pads a day, has nocturia two to three times, and has occasional saturating incontinence for which he uses Chux and pads. He was taking medication, Avodart and Uroxatral, which minimally are helpful. The veteran stated that he had no hospitalizations for urinary tract disease in the past year and was not being treated for any urologic malignancies. The examiner noted that the veteran was in a wheelchair and was debilitated appearing. An examination was deferred pending the veteran's TURP and a private urologic examination. At a June 2007 VA examination of the muscles, the veteran reported that he used his service-connected right hand to control his electronic motorized wheelchair. His right hand has an entrance wound between the second and third fingers at the metacarpal joint. The veteran did not complain of pain with the hand at rest. The exit wound is in the thenar prominence of the thumb. He reported that he has not had to seek medical attention for scar or muscle breakdown for this hand. No current problems with the right hand were reported. The veteran claimed that his hernia does bulge out daily, which aggravates him. On examination, the veteran had 4/5 muscle strength of the right hand compared to a 5/5 being normal. He complained of pain over the joint itself, but none was noted on examination. The veteran also complained of mild tenderness to palpation of the buttock exit wound scar. A large hernia was noted in the right groin area. The veteran's abdominal muscles showed evidence of weakness when the veteran transfers, and there was diastasis of the abdominal muscles when the veteran transferred from chair to the exam table and the exam table to the chair. He relies on his wife for toileting, showering, shaving, and transfers. The examiner concluded that the veteran's service-connected scars of the right hand, abdomen and buttock were not as likely as not related to his ability to obtain and maintain gainful employment. During a June 2007 VA examination for digestive conditions, the veteran reported that he had been limited in his physical activities since service due to his hernias but was able to perform as a management consultant without difficulties. The examiner opined that with regard to the question of unemployability, although the veteran's service-connected disabilities precluded him from physical employment, they would not preclude him from gainful sedentary employment. In a September 2008 letter from the veteran's private urologist's office, a P.A. reported that the veteran was treated for bladder issues, had undergone a TURP in the past, and had difficulties with urinary tract infections as well as the inability to empty his bladder. The P.A. noted that, but history, the veteran sustained a bullet wound to the abdomen while in Korea, which penetrated his stomach and bladder. Based on a review of the evidence, and resolving the doubt in the veteran's favor, the Board finds that the evidence supports the veteran's claim for TDIU. An evaluation of the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. The credibility and weight to be attached to such opinions are within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Here, the Board attaches greater probative weight to the medical opinions of the veteran's private treating physicians as well as his VA primary care physician, which were predicated on examinations of the veteran, continuing treatment of the veteran and knowledge of his current medical condition. These physicians appear to have concluded that the veteran's bladder incontinence was severely limiting and rendered the veteran unemployed. The Board acknowledges that the June 2007 VA muscles examiner indicated that the veteran's service-connected scars would not effect the veteran's employability and that the June 2007 digestive disorders examiner opined that the veteran's service-connected disabilities likely precluded him from physical employment, they would not preclude him from gainful sedentary employment. However, the Board accords these opinions given by these VA nurse practitioners less probative value as their opinions were based on a single examination of the veteran and as nurse practitioners lack the depth of knowledge, skill and medical expertise when compared to that of the veteran's private and VA treating physicians. Moreover, the VA examiners' opinions do not appear to be based on a review of the claims file, to include the findings of the June 2007 VA genitourinary examiner, who noted the veteran's severe urinary problems with frequent urinary leakage requiring pads that have to be changed five to six times a day (a marked increase over the one or two pads used at the time of the 2006 VA examination), with nocturia of two to three times and with occasional saturating incontinence for which he uses Chux on his bed and pads. The debilitating nature of the veteran's urinary incontinence was attested to by the veteran's wife during the Board hearing. In particular, she testified that, in addition to wearing pads and using bed pads, the veteran has a urine bottle with him all the time, because he might have to go and at times he does not even know that he is going. In light of the above, the Board accords greater probative weight to the medical opinions and findings of the veteran's private treating and VA primary care physicians. Thus, the objective evidence of record reflects that the veteran's service-connected disabilities-in particular, his bladder incontinence-when considered with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. The Board observes that the veteran has been unemployed since 1995 and, although his retirement was initially due to his coronary artery disease, now his urinary incontinence alone appears to render him unemployable. As noted earlier, the veteran's private and VA primary care physicians have indicated that the veteran is severely limited due to his service-connected bladder incontinence which renders him totally disabled and unemployable. The testimony of the veteran's wife attested to the severity of his bladder incontinence and the veteran's inability to obtain gainful unemployment as he is primarily confined to his bed due to the severity of this problem. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the competence evidence of record collectively shows that the veteran is unemployable due to his service-connected bladder incontinence alone. 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. 38 C.F.R. § 3.102 (2007). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Under the circumstances of this case, and with resolution of all reasonable doubt in the veteran's favor, the Board finds that the criteria for a TDIU due to service-connected disabilities are met. ORDER A TDIU is granted, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs