Citation Nr: 1527643 Decision Date: 06/29/15 Archive Date: 07/09/15 DOCKET NO. 10-44 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1968 to August 1969. This matter comes on appeal before the Board of Veteran's Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDING OF FACT The Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the Board is granting the claim, further discussion of the VCAA duties is not necessary. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1) (2013). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 a Veteran is capable of performing the physical and mental acts required by employment, not whether a Veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a Veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a Veteran's earned 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. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17(a) (2014). The Veteran contends that he is unable to secure or maintain employment due to his residuals of prostate cancer and posttraumatic stress disorder (PTSD) with depression. Specifically, he asserts that his cancer treatment reduced his stamina to the extent that he is not able to perform his regular duties with the precision and care required, and is not able to work a full day. The residuals of his prostate cancer include urinary incontinence which causes him stress and embarrassment, and makes it difficult for him to be around other people. He explained in his July 2010 notice of disagreement that, "I retired because I realized that I was a safely risk to myself and my fellow employees. I was unable to focus on a task. I was uncomfortable in any group. I couldn't trust my own driving. I wasn't able to handle the stress and attention to detail." Service connection is currently in effect for major depression and PTSD associated with prostate cancer, rated as 70 percent disabling; and prostate cancer, status post radical prostatectomy with erectile dysfunction, rated as 60 percent disabling. The combined disability evaluation is 90 percent. The Veteran meets the criteria for consideration under 4.16(a) for TDIU. Therefore, application of a TDIU is appropriate so long as the severity of his service-connected disabilities warrant such a rating. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A September 2003 note from Dr. J.N.K., the Veteran's urologist, states that the Veteran should limit his occupational activities to desk work only. He was provided VA examinations in March 2010 to assess the impact of his service connected disabilities on his ability to work. He told the examiners that he quit his engineering job of 36 years because he could no longer keep up with the stress of working long days after his prostate cancer. He has to use pads during the day due to urinary incontinence. He cannot do strenuous work because it exacerbates the incontinence and causes excessive sweating. He hires someone to assist him with manual labor at home. He had to cut down on recreational hunting and fishing. Regarding the residuals of prostate cancer, the VA examiner opined that the Veteran would be precluded from employment that would require heavy strenuous lifting or prolonged rigorous physical activity. The VA psychologist opined that the Veteran's service-connected psychiatric conditions would not prevent the Veteran from securing and maintaining substantially gainful employment. An April 2010 employment information form shows that the Veteran worked for a power company from October 1971 until November 2007. His job duties included staking lines for construction, dealing with new customers, and trouble-shooting power outages. The form does not indicate that he does any desk work. The Board finds that the evidence is at least in relative equipoise on the question of whether the Veteran is unable to work as a result of his service connected disabilities. Although the March 2010 VA examiner opined that lack of stamina and discomfort due to urinary incontinence would not preclude him from doing sedentary work, the evidence does not show that the Veteran is qualified to do sedentary work. It is unlikely that he would be able to transition to such work after 36 years of doing primarily field work. The Board finds more probative the lay evidence showing that his lack of stamina and inability to focus on his regular job duties created a safety risk to himself and others. Considering the entire record in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the assignment of a total disability evaluation based on individual unemployability due to service-connected disabilities. 38 C.F.R. § 4.16(a). ORDER A TDIU is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs