Citation Nr: 1331090 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 06-34 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability(TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active service from August 1967 to March 1969, including service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) San Juan, Puerto Rico Regional Office (RO). The Veteran testified at hearing before a decision review officer (DRO) in February 2007. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Veteran's claim was remanded by the Board in July 2011 and in March 2013. FINDING OF FACT 1. The Veteran was granted service connection for a depressive disorder secondary to his service-connected carcinoma of the prostate. 2. From July 6, 2005, the Veteran was granted a 40 percent rating for carcinoma of the prostate and a 30 percent rating for his depressive disorder. 3. The Veteran has met the percentage requirements for award of a TDIU since July 6, 2005. 4. The Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In February 2008, prior to the April 2008 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claim, and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The record reflects that the Veteran's VA medical records and private medical treatment records have been obtained. The Veteran has been provided VA medical examinations. The Veteran has provided testimony at a hearing before a Decision Review Officer. In August 2011 the Social Security Administration (SSA) informed VA that SSA had no records regarding the Veteran. In a November 2011 letter, VA informed the Veteran that there were no SSA records available and requested that he submit any such records if he had any in his possession. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. The Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In February 2007, the Veteran asserted that he was entitled to TDIU as a result of his prostate cancer. At that time, his claim for an increased initial rating for the prostate cancer was pending. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the initial rating assigned for a disability, TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. At the February 2007 DRO hearing the Veteran raised the issue of entitlement to TDIU. He reported that he had worked as a hair stylist. He stated that he had not been able to work for two years because of his frequent urinary leakage. He asserted that the bad odor from his urine, along with his depression, caused him to lose all his clients. On a February 2008 VA Form 21-8940, the Veteran reported that he last worked full time in 2004. He reported a high school education and no other training. He stated that he had worked around women, and that he had to constantly change his diapers. He reported that they sometimes leaked and smelled. He indicated that his urinary incontinence and his depression prevented him from working. It is the established policy of the 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(b). A 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. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. 38 C.F.R. § 4.16(a). 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that since July 6, 2005, the Veteran has met the percentage requirements for the award of TDIU. Since that date he has had a 40 percent rating in effect for carcinoma of the prostate. Also effective that date, service connection was granted for a depressive disorder as secondary to the service-connected carcinoma of the prostate. Given that since July 6, 2005 the Veteran had a 40 percent rating in effect for carcinoma of the prostate, and that he had a 30 percent rating for his depressive disorder which was caused (of common etiology) by the carcinoma of the prostrate, for purposes of calculating eligibility for TDIU, those two disabilities are considered to be one disability having a combined 60 percent rating. See 38 C.F.R. 3.310(a) (when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition); see also 38 C.F.R. § 4.16(a)(2). On VA examination in March 2012 the VA examiner noted that the Veteran reported insomnia, nightmares, depressed mood, irritability, social isolation, poor impulse control and frustration. The examiner opined that the Veteran was not precluded from a part-time, repetitive, or "stressless" job. She stated that the Veteran's mental condition was not severe enough to preclude the Veteran from a part-time job. The VA examiner went on to state that she was only considering the Veteran's mental condition. In May 2013 the March 2012 VA examiner again examined the Veteran. She again opined that the Veteran was not unemployable on account of his mental condition. She went on to state that the Veteran's mental condition and the rest of the service-connected medical conditions did not render the Veteran completely unemployable. She further stated that the Veteran's service-connected conditions did not preclude him from a part-time, repetitive, or "stressless" job. The Board interprets the VA examiner's opinion that the Veteran is not precluded from performing a part-time, repetitive or "stressless" job as indicating that the Veteran's service-connected disabilities prevent the Veteran from engaging in substantially gainful employment, given his education and work experience. 38 C.F.R. § 4.16(a) specifies that marginal employment shall not be considered substantially gainful employment. The regulations notes that 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, Bureau of the Census as the poverty threshold for one person. The Board notes that the Veteran is not employed and therefore there is no income to compare with the poverty threshold. The regulation also states that marginal employment may also exist on a "facts found" basis. One example given of marginal employment is employment in a protected environment such as a family business or a sheltered workshop. 38 C.F.R. § 4.16(a). In Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), the United States Court of Appeals for Veterans Claims (Court) noted that the ability to work sporadically or just a few hours a day was not substantially gainful employment. The Board finds that the VA examiner's opinion that the Veteran would only be able to perform part-time employment, and that such employment would need to be repetitive or "stressless," is indicative that the Veteran would only be able to work a few hours a day and that such employment would be similar to a sheltered workshop. The Board recognizes that a different VA physician, who examined the Veteran regarding his urinary disability, opined in March 2012 that the Veteran's service-connected conditions did not produce impairment for a sustained gainful occupation and that the Veteran was able to obtain, perform and secure a job. However, the Board does not give this opinion much probative weight as the examiner did not discuss the Veteran's report that urinary leakage affected his job as a hair stylist. Furthermore, the VA examiner did not discuss the symptoms resulting from the Veteran's psychiatric disorder. In Parker v. Brown, 7 Vet. App. 116, 118 (1994) the Court explained: "A claim for TDIU is based on an acknowledgment that even though a rating less than 100 percent under the rating schedule may be correct, objectively, there are subjective factors that may permit assigning a 100 percent rating to a particular veteran under particular facts, notwithstanding the putative correctness of the objective rating." But the record should still reflect some factor which places that veteran's case in a different category than other veterans with equal rating of disability. Van Hoose, 4 Vet. App 361. In this case the record shows that the Veteran's service-connected urinary leakage is a factor that specifically effects the Veteran's particular vocation, not to mention many other possible vocations. The record does not indicate that the Veteran has any additional education or vocational training that would overcome the interference with employment caused by the Veteran's service-connected urinary and psychiatric disabilities. In this case there is conflicting evidence as to whether the Veteran has been unemployable solely due to service-connected disability. The Board notes that the Veteran has only a high school education and work experience as a hair stylist. The Veteran has stated many times that his service-connected urinary disability, and the resultant bad odor, has adversely impacted his ability to work as a hairstylist. Additionally, the Board notes the bad odor would also adversely affect the Veteran's ability to engage in many other forms of employment. Furthermore the Veteran's service-connected depression would also adversely affect his ability to engage in any form of substantially gainful employment, particularly those that he would be qualified for due to his education and limited training. Finally, as noted above, the Board finds that the most probative medical evidence of record, the statements of the VA mental disorder examiner, noted limitations on the Veteran's ability to work that are indicative of the Veteran only being capable of marginal employment, rather than substantially gainful employment. Given the facts of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds entitlement to TDIU is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs