Citation Nr: 1339719 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 13-07 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970. This case comes before the Board of Veterans' Appeal (Board) on appeal of a July 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit on appeal. Following the January 2013 Statement of the Case, the Veteran submitted additional records in support of his claim. The Board notes that VA regulations require that pertinent evidence submitted by the Veteran must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2013). Although the Veteran and his representative did not waive RO consideration of the evidence, the Board is granting the claim, as discussed below. Consequently, the Board finds no prejudice to the Veteran in adjudicating his appeal. In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS. The Board has reviewed both the paper and electronic records in rendering this decision. FINDINGS OF FACT 1. The Veteran is currently in receipt of service connection for prostate cancer residuals, rated at 60 percent disabling, and posttraumatic stress disorder (PTSD), rated at 50 percent disabling. His combined rating is 80 percent. 2. Due to his service-connected disabilities, the Veteran is unable to obtain or retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to entitlement to a TDIU, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran. Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Factual Background and Analysis The Veteran contends that his symptoms related to his PTSD and prostate cancer residuals render him unemployable. He argues that both the severity of his PTSD symptoms, as well as his urinary and bowel incontinence due to his prostate cancer residuals, prevent him from obtaining and maintaining employment. The Veteran is currently in receipt of service connection for prostate cancer residuals, rated as 60 percent disabling, and PTSD, rated as 50 percent disabling. His combined disability rating is 80 percent. Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for a TDIU. 38 C.F.R. § 4.16(a). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. In his application for a TDIU, the Veteran indicated he last worked in 1980 and left his employment due to his disability. He completed four years of high school, but denied any additional education or training since he became too disabled to work. In February 2011, the Veteran underwent a VA genitourinary examination. The Veteran reported that he was unemployed but not retired. His unemployment began more than 20 years ago. At the time of the examination, the Veteran reported that the reason for his unemployment was his post-service fractured neck and back. The Veteran's prostate residuals include urinary incontinence, fecal impaction, and erectile dysfunction. The examiner opined that the Veteran's prostate cancer residuals have no significant effects on his occupation. In July 2011, the Veteran was afforded a VA psychiatric examination, during which the examiner found that the Veteran's PTSD symptoms caused occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran reported not working since 1980 due to a workplace accident. He reported increasing PTSD symptoms, and specifically related that he is "embarrassed and angry about his having to wear a diaper because of urinary incontinence." The examiner noted the Veteran is angry and irritable all of the time, and his symptoms are moderate in terms of severity. In August 2011, the Veteran underwent another VA genitourinary examination, at which time he had similar symptoms as noted during his February 2011 examination. Under his occupational history, the examiner noted that the Veteran has been retired since 1980 due to a physical problem caused by a work-related neck and back injury and car accident. The examiner opined that the Veteran's prostate cancer residuals have a significant effect on his occupation. The examiner opined that the Veteran's "above mentioned SC disability should not prevent him from having a light duty, sedentary occupation. He will benefit from bathroom privileges." Although the examiner was asked to describe the impact that both PTSD and prostate cancer residuals have on the Veteran's employability, it appears that the examiner's opinion only discussed the impact of his prostate cancer residuals. In a June 2011 VA treatment note, the Veteran's treating psychiatrist indicated that his stress and anxiety symptoms related to his PTSD have increased. Namely, the Veteran reports increased intrusive thoughts and anxiety is worsened with his urinary incontinence. The Veteran endorsed being hyperalert with an exaggerated startle response and a low frustration tolerance. He denied any suicidal or homicidal ideations. The Veteran also endorsed difficulty focusing and completing tasks. The examiner opined that because his intrusive thoughts interfere with his ability to concentrate and complete tasks, he believes the Veteran "is totally and permanently disabled and unemployable." A review of relevant VA treatment records during the appeal period, shows that the Veteran continues to undergo treatment for PTSD symptoms and genitourinary symptoms. VA treatment records dated in 2013 shows significant problems with urinary and fecal incontinence. Due to these symptoms, the Veteran limits going outside of the home and his incontinence is caused by any change in position, bending over, or picking something up. The treating professional identified the Veteran's incontinence symptoms as severe in nature. Upon careful review of the evidence of record, the Board finds that the positive and negative evidence with respect to the Veteran's employability is in relative equipoise. As noted above, throughout the appeal period, the Veteran's combined rating has met the threshold for consideration of a TDIU under 38 C.F.R. § 4.16(a). As such, the main question before the Board is whether he is unemployable due to his service-connected disabilities. The Board finds that the positive and negative opinions are both competent and credible with respect to the Veteran's employability. The 2011 VA examiners essentially opined that the Veteran's PTSD and residuals of prostate cancer do not render him unemployable. The Veteran's treating psychiatrist opined that the Veteran's PTSD symptoms, exacerbated by his prostate cancer residuals, render him totally and permanently disabled and unemployable. All of these opinions are based upon interview and examination of the Veteran, and they included a detailed rationale consistent with the medical evidence of record. The Board is aware that the Veteran was originally unemployed due to his work-related back and neck disabilities, but these facts do not diminish the current impact that his PTSD and prostate cancer residuals, alone, have on his employability. For the foregoing reasons, the Board resolves all reasonable doubt in the Veteran's favor and entitlement to a TDIU is warranted. ORDER A TDIU is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs