Citation Nr: 1301087 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 06-21 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for carcinoma of the prostate, rated 40 percent prior to February 24, 2009, and 60 percent as of February 24, 2009. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that assigned a 40 percent rating for carcinoma of the prostate, status post radical prostatectomy, following expiration of a 100 percent rating. In August 2007, the Veteran testified before the Board at a hearing held at the RO. In December 2007, the Board remanded the claim for additional development. In a November 2008 decision, the Board denied the claim. The appellant appealed that decision the United States Court of Appeals for Veterans Claims. In a December 2009 Order, the Court remanded the claim to the Board for readjudication in accordance with a Joint Motion for Remand. In May 2010, the Board notified the Veteran that the Judge before whom he had testified in August 2007 was no longer employed by the Board. He was offered an additional opportunity to testify before the Board. In a statement received later that month, the Veteran declined the opportunity for an additional hearing. In December 2010, the Board remanded the claims for additional development and referred to the Agency of Original Jurisdiction (AOJ) a newly raised claim for service connection for a psychiatric disorder, claimed as secondary to service-connected carcinoma of the prostate, status post radical prostectomy. Thereafter, in an August 2011 rating decision, the RO granted service connection for mood disorder and anxiety, secondary to service-connected carcinoma of the prostate, status post radical prostectomy. A November 2011 rating decision granted a 60 percent rating for carcinoma of the prostate, status post radical prostectomy, effective April 12, 2011. However, as that grant does not represent a total grant of benefits sought on appeal, this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In February 2012, the Board remanded these matters for additional development. A September 2012 rating decision granted the 60 percent rating for carcinoma of the prostate, status post radical prostectomy, with an earlier effective date of February 24, 2009. FINDINGS OF FACT 1. During the entire appeal period, the Veteran's service-connected carcinoma of the prostate, status post radical prostatectomy has been manifested by complaints of urgency, incontinence, and frequency with the need to wear absorbent materials that needs to be changed more than four times daily. There is no medical evidence of active, recurrent, or metastatic prostate cancer. The Veteran's service-connected prostate disability is not manifested by renal dysfunction. 2. The preponderance of the medical opinion evidence of record shows that the Veteran's service-connected prostate and psychiatric disabilities do not render him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating, but no higher, has been met for carcinoma of the prostate, status post radical prostatectomy, for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.321, 4.1, 4.2, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2012). 2. The criteria for entitlement to a TDIU have not been met. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in September 2005, June 2006, January 2008, and in January 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent September 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. In regards to records identified, VA has obtained Social Security Administration disability benefits records. VA has also obtained several examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected residuals of prostate cancer disability is rated 40 percent prior to February 24, 2009, and 60 percent as of February 24, 2009, pursuant to Diagnostic Code 7528. 38 C.F.R. § 4.115b (2012). Malignant neoplasms of the genitourinary system are rated as 100 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2012). Following the cessation of surgical, X-ray, antineoplastic, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, the disability will be rated on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note (2012). Initially, the Board notes that while the Veteran has been found to have renal dysfunction, the medical evidence of record relates it to his non service-connected hypertension. There is no evidence that the Veteran has renal dysfunction as the result of the service-connected prostate disability on appeal. Accordingly, the Board finds that the Veteran's prostate disability throughout the appeal is best rated using the criteria for voiding dysfunction. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urine leakage contemplates continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating for urine leakage contemplates the wearing of absorbent materials, which must be changed less than two times per day. A 40 percent rating is warranted for the wearing of absorbent materials, which must be changed two to four times per day. A 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a (2012). For a rating based on urinary frequency, a 10 percent rating is warranted for a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted where there is a daytime voiding interval between one and two hours, or if the disability results in awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval of less than one hour, or if the disability results in awakening to void five or more times per night. 38 C.F.R. § 4.115a (2012). For a rating based on obstructed voiding, a 10 percent rating requires marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc; (2) Uroflowmetry; markedly diminished flow rate (less than 10 cc/second); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring period dilation every two to three months. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. 38 C.F.R. § 4.115a (2012). With regard to urinary tract infections, a 10 percent rating is warranted for long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. A 30 percent rating is warranted for recurrent symptomatic urinary tract infections requiring drainage or frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. Urinary tract infection with poor renal functioning is to be rated as renal dysfunction. 38 C.F.R. § 4.115a (2012). A March 2005 ultrasound of the kidneys revealed bilateral renal cortical atrophy and simple cystic formations seen throughout both kidneys. A July 2005 VA medical record notes that the Veteran complained of urinary and occasional fecal incontinence. He reported using four to six or more pads daily for incontinence. His fecal incontinence has diminished, but he feels he must always use precautions. His PSA has remained undetectable. The impression was prostate cancer, urinary incontinence, and occasional fecal incontinence. A July 2005 RO hearing transcript shows that the Veteran wore absorbent pads and had to change them three times a day. He had urinary frequency and had little control of his urination. During the daytime, he urinated about every hour, at nighttime, about every 1.5 to 2 hours, or about four times a night. A November 2006 ultrasound impression was cortical thinning in the right kidney with a simple upper pole cyst. No evidence of hydronephrosis or renal calculi bilaterally. No post void residual. An August 2007 Board hearing transcript shows that the Veteran testified that after having prostate surgery he had about five urinary tract infections. He had difficulty controlling and retaining his urine stream. He wore absorbent pads and changed them two to three times a day, and once before bed. He arose three times a night to go to the bathroom. During the day, he went to the bathroom about every 1.5 to 2 hours. He sometimes had accidents. On urination, he sometimes had burning, odor, and blood. He had been given medication that was supposed to help reduce the frequency, but it did not. He volunteered twice a week and walked the beach. A January 2008 VA medical record notes that the Veteran had residual incontinence and nocturia. A January 2008 VA surgery urology record notes that the Veteran has some urinary incontinence, nocturia noted as times three. PSA results were less than 0.1 ng/mL. A July 2008 VA examination report shows that the Veteran's PSA was less than 0.1. The Veteran complained of urinary incontinence since treatment for prostate cancer. The examiner noted renal dysfunction, BUN 22, creatinine 1.45, the Veteran felt tired, but denied weakness, anorexia, or weight change. He complained of urinary incontinence, and uses urinary pads which he changed every 1.5 hours during the day and 3 times at night. The assessment was prostate cancer, status post prostatectomy, and external radiation therapy, urinary incontinence likely secondary and erectile dysfunction, likely secondary. In a September 2008 letter, the Veteran contended that he had kidney damage secondary to the radiation treatment for prostate cancer. The RO accepted that as a new claim for service connection. A May 2009 VA nephrology record notes an assessment that the Veteran had chronic kidney disease since 2000, creatine in range of 1.7 to 1.9mg% since 2006, and stage 3 chronic kidney disease. Etiology as discussed with the Veteran was likely from longstanding hypertension and nephrosclerosis with evidence from cortical thinning and likely contributed from his history of prostate cancer. An August 2009 ultrasound revealed an impression of bilateral renal cortical thinning consistent with changes of medical-renal disease. An October 2009 VA genitourinary examination report shows that the claims file was reviewed. The examiner noted that the Veteran was seen by a kidney specialist about his kidney failure and they felt it was secondary to hypertension, thus he had nephrosclerosis. In addition, radiation therapy for prostate cancer was localized to the prostate and unless there was bad radiation therapy, there was no exposure of the kidney to the radiation. The examiner could see no evidence of that in the file. Thus, the examiner opined that the Veteran's kidney damage was unrelated to the Veteran's radiation therapy for his prostate cancer and likely related to his hypertension as was stated by a nephrologist, kidney specialist. In an October 2009 email associated with the claims file, an explanation from a VA physician was obtained as to the May 2009 VA nephrology record assessment. The VA physician disagreed with the note and that the Veteran had pelvic radiation that would not affect the kidneys. Any renal damage was unrelated to radiation. In a September 2010 letter, the Veteran stated that he wore 6 pads a day and urinated every two hours with frequent accidents. In an October 2010 independent medical evaluation from R. C. Mahlo, MSN, APRN, FNP-C, he stated that he reviewed the records and his opinions were expressed to a degree of medical probability, that is, more than likely not. He noted that the Veteran required frequent emptying of the bladder, approximately every 1 to 2 waking hours, and changing of his absorbent pads 4 to 6 times throughout the day while requiring 2 to 3 times during nocturnal hours. He opined that it would be difficult for the Veteran to maintain employment due to the constant care to his perineal region and changes to his sleeping pattern. An April 2011 VA examination report shows that the Veteran's PSA had been normal. The Veteran reported urinary symptoms of urgency with daytime voiding intervals of every 2 hours and nocturia of 3 to 4 times nightly voiding. He has urinary leakage and stress incontinence. He wore absorbent material that must be changed more than 4 times per day. The Veteran was being treated for urinary frequency with Dextrol. The examiner noted that the Veteran had no occupational or daily activity effects directly due to prostate cancer, the urinary symptoms, as a result of his prostate cancer treatment affect daily and occupational activities with regards to frequent urination and having to change absorbent pads. The Veteran stated that in his prior job he would not have been allowed to the go the bathroom 3 to 4 times a day. It was noted that the Veteran was retired. The Veteran denied fecal incontinence, rectal bleeding, or diarrhea. The VA examiner opined that the Veteran's chronic kidney disease is not related to the treatment he received for prostate cancer, he has had no progression of BUN or creatinine elevations since 2001. The Veteran had long standing hypertension which was the most likely etiology for chronic kidney disease for the Veteran. He had been diagnosed with hypertensive nephrosclerosis. Based on service-connected disabilities, the Veteran was employable. He could have a job and take 3 to 4 breaks daily or use one of several urinary modalities that would eliminate frequent breaks. A June 2012 VA general medical examination report shows that the Veteran's recent PSAs have been normal. The Veteran continued to be in remission with no further treatment. The Veteran's last PSA was less than 0.1 ng/ml. The Veteran had urinary symptoms of urgency with daytime voiding interval every 2 hours and nocturia two to three times nightly voiding per night. He never had renal colic. He had urinary leakage consisting of stress incontinence. He wore absorbent material that was changed more than 5 times per day. He did not have a history of recurrent urinary tract infection, obstructed voiding, or urinary tract stones. He had a history of renal dysfunction or failure. Physical examination revealed a normal bladder examination. The diagnosis was carcinoma of the prostate, status post radical prostectomy. The examiner opined that the Veteran could maintain employment in any sedentary and in some physical occupations. There were no significant effects on his usual activities of daily living. In considering all the evidence of record, the Board finds that during the entire period on appeal that a 60 percent disability rating, but not higher, is warranted for the Veteran's service-connected carcinoma of the prostate, status post radical prostectomy. A July 2005 VA medical record notes that the Veteran reported using 4 to 6 or more pads daily for incontinence. A July 2008 VA examination report shows that the Veteran complained of urinary incontinence and that he used pads which he changed every 1.5 hours during the day and 3 times at night. The Veteran was changing his pads more than 4 times per day, thus, in a twenty-four hour period. An August 2007 Board hearing transcript shows that the Veteran testified he wore absorbent pads and changed them two to three times a day and once before bed. The Board resolves reasonable doubt in favor of the Veteran that the absorbent material probably would need to be changed more often as he testified that during the day, he went to the bathroom about every 1.5 to 2 hours, and at night, he was up three times. The Board finds that the Veteran is competent to report how many times per day he experiences incontinence. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran's testimony to be credible. Considering the frequency of urinary incontinence reported by the Veteran and the need for frequent changes of absorbent materials, the evidence of record reasonably indicates that the absorbent materials needed to be changed more than four times per day during the entire period on appeal. Therefore, a 60 percent rating, but no higher, is warranted. Notwithstanding the Veteran's contention that a rating higher than 60 percent is warranted, the Board notes that the next higher rating of 100 percent, under Diagnostic Code 7528, requires objective medical evidence of active, recurrent, or metastatic prostate cancer. Here, however, the medical evidence does not establish, and the veteran does not contend, that he has active, reoccurrent or metastatic prostate cancer. Therefore, the maximum 100 percent rating under Diagnostic Code 7528 is not warranted. Further, absent evidence of poor renal functioning that is severe, which is the result of the Veteran's service-connected residuals of prostate cancer, the Board finds that a higher rating under Diagnostic Code 7527 is not warranted at any point during the appeal period. Medical opinion evidence of record relates the Veteran's renal dysfunction to his hypertension, and not to his service-connected residuals of prostate cancer. Therefore, a higher rating under Diagnostic Code 7527 is not for consideration in this case. the Board also notes that although the Veteran has also reported symptoms of urinary frequency and obstructed voiding, the rating schedule for voiding dysfunction only allows for a maximum 40 percent and 30 percent ratings for those disabilities, which are less than the 60 percent rating assigned based on urinary incontinence. Therefore, rating the Veteran's voiding dysfunction based on those symptoms would not entitle the Veteran to a higher rating. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Rating Schedule reasonably describe a Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability rating for carcinoma of the prostate, status post radical prostectomy, to include voiding dysfunction, inadequate. The Veteran's prostate disability is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. During the entire appeal period, the Veteran's service-connected prostate disability has been manifested by continual urine leakage, urinary hesitancy, nocturia, and stress urinary incontinence occurring more than four times per day and requiring the wearing of absorbent materials, without evidence of local reoccurrence or metastasis of cancer. No evidence of renal dysfunction consisting of persistent edema, albuminuria, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion has been shown as a residual of the Veteran's service-connected prostate cancer. Medical opinion evidence has related the Veteran's renal dysfunction to his non service-connected hypertension. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for his prostate disability on appeal. The criteria for the disability rating describes the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. 38 C.F.R § 4.115b, Diagnostic Code 7528 (2012). TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate 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(a)(1), 4.15 (2012). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person 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, 3.341, 4.16(a) (2012). 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 due to service-connected disability. 38 C.F.R. § 4.16(b) (2012). Social Security Administration (SSA) records show that the Veteran was awarded disability benefits for prostate malignancy beginning in June 2005. In his June 2005 application for SSA benefits, the Veteran stated that his impairment had limited his ability to work because his incontinence caused him to take many bathroom breaks and he was tired due to lack of sleep from getting up three to four times a night. A July 2008 VA examination report shows that the Veteran's prostate cancer disability had no effect on his occupation. The Veteran retired from his job as a guard in 2006. In a January 2009 letter, the Veteran stated that he has not worked since 2006 due to kidney problems from excessive radiation in 2004. In an October 2010 independent medical evaluation from R. C. Mahlo, MSN, APRN, FNP-C, the examiner reviewed the records and the opinions were expressed to a degree of medical probability, which was more than likely not. The examiner opined that it would be difficult for the Veteran to maintain employment due to the constant care to his perineal region and changes to his sleeping pattern. Because of his level of urinary frequency, it would not be recommended to change his pads any less than six times per day. That would clearly impact his ability to maintain employment and further exacerbate his psychiatric symptomatology. In a letter received in January 2011, the Veteran stated that he told a case worker in 2007 that he was disabled and unable to work because of uncontrollable bladder. An April 2011 VA genitourinary examination report shows that the Veteran was not currently employed and had retired in 2006. The cause of retirement was noted as eligible by age or duration of work. The examiner noted that there were no significant effects on the Veteran's general occupational effect or usual daily activities due to his prostate disability. The examiner opined that the Veteran had no occupational or daily activity effects directly due to prostate cancer. The urinary symptoms, as a result of his prostate cancer treatment, affect daily and occupational activities with regard to frequent urination and having to change absorbent pads. The Veteran stated that in his prior job, he would not have been allowed to go to the bathroom three to four times daily. In a June 2012 VA general medical examination, the VA examiner opined that as far as individual unemployability related to the Veteran's service-connected prostate cancer, the Veteran at least as likely as not (50/50 probability) would be able to maintain employment in any sedentary and in some physical occupations. The rationale provided was that the Veteran continued to work and had his usual occupation at the time as a security guard five years after the diagnosis of his prostate cancer, and retired at age 62. Also, many known public people who had prostate cancer continued to work in a variety of jobs. Frequent urination had to be accommodated by his employer, or by the use of other means, and it could be done. There were no significant effects on his usual activities of daily living. In a June 2012 VA mental disorders examination report, the Veteran stated that he had not worked since 2006 due to his "urinary problems." The VA examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms were controlled by medication. The VA examiner opined that the Veteran's anxiety was in reaction to his public incontinence and was not to the degree that it would substantially impact his ability to maintain substantially gainful employment. In light of the above grant of a 60 percent rating for the Veteran's prostate disability during the entire appeal period, the Veteran meets the percentage requirements of 38 C.F.R. § 4.16(a) (2012). The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Board does not doubt that the Veteran's service-connected disabilities cause the Veteran some occupational impairment. However, the Board finds that the greater weight of the probative evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. While the Veteran has submitted a private opinion from R. C. Mahlo, MSN, APRN, FNP-C, that it would be difficult for the Veteran to maintain employment due to the constant care to his perineal region and changes to his sleeping pattern, he did not find that the Veteran's prostate disability and psychiatric symptomatology rendered him unemployable, or that they precluded the Veteran from securing or following a substantially gainful occupation. That opinion was only that it would be difficult. By contrast, a June 2012 VA examiner opined that as far as individual unemployability related to the Veteran's service-connected prostate cancer, the Veteran at least as likely as not (50/50 probability) would be able to maintain employment in any sedentary and in some physical occupations. The rationale provided was that the Veteran continued to work and had his usual occupation at the time as a security guard five years after the diagnosis of his prostate cancer, and retired at age 62. Also, many known public people who had prostate cancer continued to work in a variety of jobs. Frequent urination had to be accommodated by his employer, or by the use of other means, and it could be done. In the June 2012 VA mental disorders examination, the VA examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms were controlled by medication. The examiner opined that the Veteran's anxiety was in reaction to his public incontinence and was not to the degree that it would substantially impact his ability to maintain substantially gainful employment. The Board is sympathetic to the Veteran's assertions regarding the impact of his service-connected disabilities on his occupational and social functioning. Those problems, however, are compensated by his current schedular ratings for those disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while his service-connected disabilities may cause some economic inadaptability, that also is taken into account in the assigned ratings and the combined 70 percent rating, which contemplates significant impairment in earning capacity. In this case, the Board finds that the preponderance of the evidence is against a finding of total individual unemployability based solely on these disabilities. 38 C.F.R. § 4.1 (2012). The preponderance of the medical evidence shows that the Veteran's service-connected disabilities do not solely, or combine to render him unable to secure or follow a substantially gainful occupation. Based upon the foregoing, the Board concludes that the preponderance of the evidence does not demonstrate that the Veteran's service-connected disabilities alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. The evidence shows that the Veteran stopped working when he retired due to length of service. Accordingly, the Board finds that entitlement to a TDIU is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 60 percent rating, but no higher, for carcinoma of the prostate, status post radical prostectomy, is granted for the entire appeal period. Entitlement to a TDIU is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs