Citation Nr: 1337702 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-29 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for residuals of prostate cancer. 2. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss. 3. Entitlement to a disability rating in excess of 20 percent for status post rout-en-y gastrojujenostomy and vagotomy, antrectomy with takedown of Billroth-I gastroduodenostomy for duodenal ulcer (postgastrectomy syndrome). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active duty from September 1939 to August 1945 and from May 1968 to September 1969. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing held in October 2013, before the undersigned Veterans Law Judge. The transcript from that hearing has been associated with the claims file and has been reviewed. In October 2013, the Veteran submitted additional supporting evidence consisting of a lay statement as well as medical opinions from his treating physicians. That evidence was received with the appropriate waiver of agency of original jurisdiction review under 38 C.F.R. § 20.1304 (2013). Therefore, the Board may properly consider such newly received evidence. The Board has reviewed the Veteran's claims file as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. On the record during the October 2013 Board hearing (prior to the promulgation of a decision in the current appeal) the Veteran withdrew the appeal of the issue of entitlement to an increased rating for prostate cancer residuals. 2. On the record during the October 2013 Board hearing (prior to the promulgation of a decision in the current appeal) the Veteran withdrew the appeal of the issue of entitlement to an increased rating for bilateral hearing loss. 3. On the record during the October 2013 Board hearing (prior to the promulgation of a decision in the current appeal) the Veteran withdrew the appeal of the issue of entitlement to an increased rating for his service-connected postgastrectomy syndrome. 4. Other than his bone metastasis that is rated as 100 percent disabling, and since April 16, 2008, service connection has been effect for prostate cancer, bilateral hearing loss, a gastrointestinal disorder, and tinnitus, which have been respectively rated as 40 percent, 30 percent, 20 percent, and 10 percent disabling; and, his combined disability rating (exclusive of bone metastasis) has been 70 percent. 5. Exclusive of his bone metastasis, the Veteran's remaining service-connected disabilities preclude him from obtaining and maintaining all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of a higher disability rating for prostate cancer residuals. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). 2. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of a higher disability rating for bilateral hearing loss. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). 3. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of a higher disability rating for postgastrectomy syndrome. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). 4. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissal of Claims Withdrawn at Hearing The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made in writing or on the record at a hearing by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. Regarding the issues of entitlement to increased disability ratings for prostate cancer residuals, bilateral hearing loss, and postgastrectomy syndrome, the Veteran expressly withdrew these matters from appeal on the record at the October 2013 Board hearing. Inasmuch as he has withdrawn his appeal in these matters, there is no allegation of error of fact or law for appellate consideration with respect to these three issues. Thus, the Board does not have jurisdiction to review the appeal on these matters, and the claims are dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). The VCAA applies in the instant case. However, the Board's grant of a TDIU herein represents a complete grant of the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Law and Analysis The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a 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). 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). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. By way of relevant history, the Veteran filed a claim for a TDIU in April 2008. A December 2008 rating decision denied that benefit. His disability ratings at that time were hearing loss rated at 30 percent, a gastrointestinal disorder rated at 20 percent, and tinnitus and the residuals of prostate cancer, each rated as 10 percent disabling. His combined disability rating was 60 percent. Then, by a rating action dated in May 2010, the 10 percent rating assigned for prostate cancer was increased to 40 percent. The effective date of the award was 10, 2008. Such resulted in a combined disability rating of 70 percent. A March 2013 rating decision assigned a schedular 100 percent rating for bone metastasis, after granting service connection for the same. The effective date of the award was December 22, 2012. In years past, if a Veteran received a 100 percent schedular rating for a service-connected disability, the issue of entitlement to a TDIU became moot since a Veteran could not have a 100 percent schedular rating while concurrently having a TDIU. 38 C.F.R. § 4.16(a); VAOGCPREC 6-99 (June 7, 1999), 64 Fed. Reg. 52375 (1999). Other precedential decisions also discussed this interplay. See, e.g., Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Essentially, VAOGCPREC 6-99 held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet.App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). But in view of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC ), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99. The Court further determined that if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Here, as indicated, service connection is in effect for bone metastasis and rated as 100-percent disabling as of December 12, 2012. Service connection has been effect for prostate cancer, bilateral hearing loss, a gastrointestinal disorder, and tinnitus, which have been respectively rated as 40 percent, 30 percent, 20 percent, and 10 percent disabling, since April 2008. He had at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent, exclusive of bone metastasis. Such means that the requirements of 38 C.F.R. § 4.16(a) have been met. Thus, in light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, VA must determine whether the Veteran meets the criteria for a TDIU based on the aggregate impact of his other service-connected disabilities. The Board has considered the Veteran's assertions regarding his functional impairment due to his service-connected disabilities. However, the evidence must still show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a veteran 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 or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record indicates that the Veteran last worked in 1994 as a maintenance supervisor for the Somersworth School System. During his December 2009 RO hearing, he testified that he was entitled to a TDIU because his prostate cancer residuals caused incontinence and that he had a daytime voiding frequency of 4-6 times a day. He also testified that he had constant diarrhea from his service connected gastric disorder. Both conditions required him to wear an incontinence pad at all times, which he changed up to three times a day. The Veteran testified that he does not always feel when he has diarrhea, which can be very embarrassing. He indicated that the "constant going and coming were too hazardous" as he had no control over different things and that there were too many situations, especially with the leakage and pad, where he was afraid that he would have an accident on the job in front of his co-workers. He felt that the frequency of his voiding, the inability to control his bowels disorder, and the frequency with which he needed to change his pads made it impossible for him to continue to work as a maintenance supervisor. He indicated that his hearing loss was also a contributing factor. See December 2009 RO hearing transcript. In the most in-depth assessment on the issue of employability, a November 2008 VA examiner observed that the Veteran's prostate cancer was stable with no effect on activities of daily living or employment and that his peptic ulcer had a minor effect on activities of daily living and none on employment potential. At that time it was noted that the Veteran had a history of prostate cancer in 2002 that was treated with radiation. Following treatment he had minimal urinary irritation and bowel problems. The Veteran noted minimal residual symptoms of urinary frequency and occasional minor incontinence if he does not go to the bathroom right away. It was also noted that following surgery his gastric condition had improved some, but he still had some upper gastric discomfort and abdominal cramps. He had no diarrhea or significant constipation. A VA audiologist noted the Veteran's complaints that his hearing loss causes him significant frustration and requires extra effort to understand what people are saying. The audiologist concluded, however that hearing loss by itself should not preclude the Veteran from his usual employment, if he is wearing hearing aids and if adjustments are made in the work environment. In addition, the Veteran should not work in any situations in which hearing is needed for safety purposes. See November 2008 VA audio examination report. Two years later, an April 2010 VA examiner observed that the Veteran's prostate cancer residuals and postgastrectomy syndrome have had mild effect on the Veteran occupation and daily activities. On the other hand the examiner also reported that the Veteran had constant watery diarrhea 2-4 times a day as well as fecal urgency and incontinence causing him to wear a pad all the time. The Veteran also had urinary frequency of 8-10 times a day and 1-3 times at night as well as urgency and incontinence. He had limited control of his urination and had to change his pad up to 2-3 times a day due to both urinary and fecal incontinence. In both cases, the VA examiners' opinions are more definitive in discussing the severity of the Veteran's service-connected disabilities and their individual functional effects. In other words, in forming their opinions they seem to rely solely on a generic standardized job description, which was not even mentioned, rather than specifically address the Veteran's own description of his job experience. The Veteran has also submitted statements from private physicians. The first of which noted treatment of the Veteran for less than a year. This physician referred to the Veteran's 11 year history of prostate cancer that had been treated with radiation with "tremendous side effects." He concluded that the Veteran had been unable to work any full time job from at least April 2008. See correspondence from H. L. Sonneborn, M.D. dated October 17, 2013. A second physician also noted the Veteran's history of prostate cancer and the side effects related to radiation treatment that he had received since 2002, made it difficult to work. The Board is cognizant that these physicians have clearly evaluated the Veteran at some point and thus are well aware of his conditions and the medical treatment for them. However, these private opinions, while supportive of the claim, are limited in terms of their ultimate probative value as they are fairly cursory in that neither the physician explained what evidence in the Veteran's treatment records supported their conclusions, and did not reference any clinical data or other evidence as rationale for their opinions. Under the circumstances of this particular case, the Board finds that, at the very least, the evidence is in approximate balance, with no sound basis for choosing one medical opinion over the other. To be sure, the Board is not entirely satisfied with either medical opinion. That said, there is no adequate reason to reject the medical opinion of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). While the supporting medical evidence is not unequivocal, it has nevertheless placed the pertinent record in relative equipoise. Moreover, the Veteran has submitted a statement asserting that the effects of his service-connected disabilities are so overwhelming that he is unemployable. He indicated that he was unable to perform any type of work due to his service connected disabilities. He stated that due to his prostate cancer residuals his daytime urinary frequency interval was less than once per hour and that he awakens at night to void 5-6 times. He wears absorbent materials, which must be changed at least four times per day. He argues that due to his urinary frequency he is unable to work as he would have to go the bathroom 10-15 times in an 8 hour work day. He also reported stress incontinence with lifting, pushing, pulling and stooping. He noted that his gastric disorder causes frequent diarrhea, nausea, and hypoglycemic symptoms. The hypoglycemia makes him dizzy and lightheaded and also prevents him from working. He also noted that his hearing loss makes it difficult to hear and understand instructions and that the medications for his service-connected disabilities cause constant fatigue. See VA Form 4138 dated in October 2013. The Board is charged with the duty to assess the credibility and weight given to evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this capacity, the Board finds the Veteran's statements about his ability to obtain and maintain employment to be credible, as they are consistent with the symptomatology described in the evidence of record. His service-connected disabilities have clearly placed significant barriers to his obtaining and securing substantially gainful employment in the field for which he has experience, namely, maintenance. He has essentially argued that he would need a position that would allow him to go to the bathroom whenever he needed and to go quickly. He would find it difficult to deal with employees and then have to walk away from them to go to the bathroom. In light of the above, Board resolves all benefit of the doubt in the Veteran's favor and finds that the evidence of record supports the grant of a TDIU from April 10, 2008 to December 22, 2012. ORDER The appeal on the issue of entitlement to a disability rating in excess of 40 percent for prostate cancer residuals is dismissed. The appeal on the issue of entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is dismissed. The appeal on the issue of entitlement to a disability rating in excess of 20 percent for status post rout-en-y gastrojujenostomy and vagotomy, antrectomy with takedown of Billroth-I gastroduodenostomy for duodenal ulcer is denied. A TDIU is granted, subject to the statutes and regulations governing the payment of monetary awards. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs