Citation Nr: 1505084	
Decision Date: 02/03/15    Archive Date: 02/09/15

DOCKET NO.  05-18 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel



INTRODUCTION

The Veteran had active service from December 1967 to January 1970.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) as a derivative TDIU claim from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In August 2013, the Board remanded this claim for additional development.  The RO was instructed to send the Veteran VCAA notice and to afford the Veteran a VA examination.  The Veteran was sent a VCAA notice in November 2013 and afforded a VA examination in November 2013.  As such, the evidence indicates that there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  That development having been completed, the claim is now ready for appellate review.


FINDING OF FACT

The Veteran, along with other disabilities, has a single service-connected disability, prostate cancer, status post radical retropubic prostatectomy, ratable at 60 percent or more; this service-connected disability precludes the Veteran from maintaining gainful employment.


CONCLUSION OF LAW

The criteria for TDIU are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).  

In this case, the Board is granting in full the benefit sought on appeal.  Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

II.  Entitlement to TDIU

The Veteran seeks a total disability rating based on individual unemployability.  He asserts he has been unable to work due to his prostate cancer, status post radical retropubic prostatectomy disability.

Total disability ratings for compensation purposes 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 are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 4.16.

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age.  38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board notes that the December 2013 Supplemental Statement of the Case (SSOC) states that the Veteran was denied entitlement to TDIU for failure to complete a formal application for TDIU and failure to specify which service-connected disability, or disabilities, causes his unemployment.  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a TDIU is part and parcel of an increased-rating claim when the claim is expressly raised by the Veteran.  

The Board notes that this appeal is a derivative "Rice" TDIU claim.  The Board notes that a traditional TDIU claim considers whether a Veteran is unemployable due to any service-connected disability or disabilities, alone or in concert.  In contrast, a Rice TDIU claim is limited to whether the Veteran is unemployable due to the service-connected disability on appeal--in this case, the Veteran's service-connected prostate cancer. 

Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part and parcel of an increased-rating claim only when the Roberson requirements are met).  

Here, the August 2013 Board decision found that the issue of TDIU was raised and remanded it as part of the Veteran's increased rating claim for his service-connected prostate cancer, based on Rice.

The Federal Circuit has held that "[o]nce a Veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the 'identify the benefit sought' requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU."  Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  Under Roberson, a claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a Veteran presents evidence of unemployability and seeks to obtain a higher disability rating.  See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). 

While the Veteran has not separately filed a formal claim for entitlement to TDIU due to service-connected disabilities, this matter has been raised on a derivative basis, as part of his claim for a higher rating for prostate cancer.  Therefore, this matter is considered before the Board.  See also Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The Veteran is service connected for prostate cancer, status post radical retropubic prostatectomy, rated as 60 percent disabling.   The Veteran is also rated as 70 percent disabled for posttraumatic stress disorder and 10 percent disabled due to calluses of the bilateral big toes.  The Veteran has a combined rating of 90 percent.  As such, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a total rating based on individual unemployability.  Therefore, the Veteran is eligible for an individual unemployability rating if he is unable to secure or follow a substantially gainful occupation as a result of his disability, or disabilities.

The Veteran was afforded a VA examination in February 2011.  It was noted that he had urinary incontinence and voided every hour while awake and three times at night, in addition to his incontinence.  The examiner stated the Veteran was retired and on disability, but had worked in security and as an armored truck guard.  The examiner stated that the Veteran's continued urinary incontinence affected his activities of daily living, as he tended to stay home since he frequently had to change his diapers and feared that they emitted an order.

The Veteran was afforded a VA examination in November 2013.  It was noted that the Veteran required absorbent material, which must be changed more than four times per day.  The examiner reported that the Veteran had a daytime voiding interval of less than one hour and had nighttime awakening to void three or four times.  The examiner opined that that the Veteran's prostate cancer affected his ability to work and rendered the Veteran unable to obtain and maintain substantially gainful employment.  The examiner stated that because of the Veteran's incontinence, urinary frequency and urgency, and need to frequently change absorbent material, the Veteran has difficulty securing and maintaining employment.

Considering all evidence of record, the Board finds that the Veteran is precluded from gainful employment due to his service connected prostate cancer, status post radical retropubic prostatectomy disability.  Additionally, a VA examiner has opined that his prostate cancer, status post radical retropubic prostatectomy, renders the Veteran unable to maintain employment.  There are no medical opinions, of evidence, to the contrary.  As such, the Veteran's claim is granted.


ORDER

Entitlement to TDIU is granted.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs