Citation Nr: 1752884 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-18 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based upon individual unemployablity due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps from February 1970 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in July 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also met its duty to assist the Veteran. VA obtained all relevant medical records and evidence identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examinations of his service-connected disabilities in December 2009, March 2010, June 2010, August 2010, October 2010, and January 2015. In October 2017, the Veteran's representative waived consideration by the AOJ of all evidence received after the June 2013 statement of the case, to include the January 2015 VA examination. Neither the Veteran nor his representative have identified any outstanding records or indicated that further development of the record is needed in this case. Accordingly, the Board will address the merits of the claim. Legal Criteria for a TDIU 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. 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). 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 the 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 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 her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU Analysis The Veteran is currently service-connected and rated for residuals of prostate cancer (40 percent), a mood disorder (30 percent), bilateral hearing loss (20 percent), tinnitus (10 percent), and erectile dysfunction (0 percent). The Board finds that the Veteran's service-connected disabilities satisfy the schedular criteria for a TDIU because residuals of prostate cancer are rated at 40 percent and the Veteran's combined disability rating is 70 percent. See 38 C.F.R. § 4.16(a). The Board reviewed the pertinent evidence including lay statements and functional assessments in the treatment records, VA examinations, and social security disability records. The Board finds this evidence provides a basis to determine the impact of the Veteran's service-connected disabilities on the Veteran's ability to maintain substantial gainful employment. The Board notes that in 2010, the Social Security Administration (SSA) found that the Veteran was disabled under its standards in January 2007 due to the primary diagnosis of prostate cancer and secondary diagnosis of back disorder. The Veteran stated on his SSA Disability Report that he stopped working on May 2009 and noted he could not sit, stand, or walk very long, was in constant pain, and was tired all of the time due in part to his treatment for his prostate cancer. In March 2010, P.J.W., Ph.D. opined that while the Veteran had affective disorders and a substance abuse disorder, they caused only mild limitations at the time. See March 2010 Psychiatric Review Technique in SSA records. However, SSA disability standards differ from VA standards, and SSA found the Veteran was disabled in part due to a back condition, which is not a service-connected disability. Therefore, the Board affords reduced probative weight to the findings in the SSA records except to the extent that they are consistent with findings in the treatment records relating to the Veteran's service-connected disabilities (residuals of prostate cancer and mood disorder) during the period at issue. While the record shows that the Veteran had prostate cancer requiring substantial treatment in 2007 through 2009, the treatment records and VA examinations show that the condition was treated, managed, and in remission at the time the Veteran filed his claim for a TDIU in June 2010. See, e.g., January 2015 VA Genitourinary Examination. The Veteran was not service connected for any disabilities until July 2009, and the Veteran did not meet the schedular criteria (a 70 percent combined disability rating) for a TDIU until he was service connected for his secondary mood disorder in June 2010. Therefore, in regard to prostate cancer, the focus in this case is on the functional limitations following the Veteran's treatment for the condition and residuals such as urinary difficulties, fatigue, pain, and a secondary mood disorder. The record contains many assessments of the Veteran's functional limitations due to service-connected disabilities during the period at issue. Pertinent examinations of the Veteran's hearing loss and tinnitus show that he has difficulty hearing but can still communicate in situations that do not involve excessive noise, often use of non-face to face communications such as intercoms, or attention to high pitched sounds. See, e.g., October 2010 Addendum to December 2009 VA Audio Examination. Pertinent examinations of the Veteran's residuals of prostate cancer confirm that the Veteran suffers from daytime voiding intervals between one and two hours, voiding dysfunction requiring changing of absorbent material less than 2 times per day, nighttime awakening to void 5 or more times, substantial pain, substantial fatigue, low testosterone, and secondary depression. See, e.g., January 2015 VA Genitourinary Examination. The Board finds that the preponderance of the evidence indicates that despite substantial physical limitations, the Veteran is still capable of a range of sedentary work. The Veteran's most significant physical limitations are fatigue, a need to use the restroom at a frequency of one to two hours, some urinary incontinence, and pain. While these limitations may preclude work requiring substantial physical exertion, the evidence of record does not establish that the Veteran could not meet the demands of a sedentary job allowing him to sit or stand at will as well as take restroom breaks every one to two hours as needed. The Board finds that the evidence does not show that the Veteran's fatigue and need to use the restroom would prevent the Veteran from staying on task on simple, unskilled or semi-skilled sedentary work. Despite some hearing loss, the evidence noted above shows the Veteran is still capable of understanding speech and receiving verbal instructions. Physical limitations due to the Veteran's other health conditions including a back disability are not relevant to the TDIU claim because they are not service-connected. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran's physical limitations from service-connected disabilities do not preclude him from maintaining substantial gainful employment. In regard to mental limitations from the Veteran's mood disorder, examinations of the Veteran's mental functioning show that during depressive episodes he has some difficulties with forgetfulness, maintaining concentration, and exhibits some difficulty interacting with others. See, e.g., October 2010 VA Mental Health Examination. However, the records show that the Veteran has still been able to maintain relationships with close friends and engage in activities including housekeeping, cooking, paying bills, managing finances, food shopping, walking his dog, playing golf, and going to the VFW to shoot pool. See id. The Veteran reported that his depression is significantly improved by medication. See id. The Board finds that this evidence shows that the Veteran is able to complete many simple tasks and as well as more complicated tasks including tasks involving interaction with people over several hours at a time. It was also noted that the Veteran reported that he retired from his lawn care business because of a bulging disc in his back and bone spurs in his back and left foot, which are not service-connected. The Board also notes that the Veteran is rated at 30 percent for a mood disorder secondary to his prostate cancer. A 30 percent rating for the mood disorder reflects occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). See 38 C.F.R. § 4.130. The Veteran never filed a notice of disagreement or otherwise expressed disagreement with the findings in the record in regard to the functional limitations of his mood disorder. While the Veteran's mood disorder is a factor in the TDIU claim, the Veteran's primary disagreement is with his ratings for prostate cancer including residuals such as low testosterone. See, e.g., Veteran's November 2014 Application for Disability compensation and Related Compensation Benefits; July 2011 Statement in Support of Claim. A rating of 40 percent for residuals of prostate cancer was continued in January 2015, and the Veteran did not file a Notice of Disagreement with the rating decision. The Board finds that occasional decreases in work efficiency or intermittent periods of an inability to perform work would not prevent the Veteran from maintaining substantial gainful employment in this case. Specifically, the record does not show that the Veteran's service-connected disabilities would result in excessive work absences. See, e.g., October 2010 VA mental health examiner's opinion (opining the Veteran would only miss an occasional workday due to sad mood). While the Veteran has exhibited some difficulties with concentration and memory, and dealing with the public as noted above, the evidence noted above shows that the Veteran is still capable of performing simple or semi-skilled activities including interacting with people, golfing, and playing pool. In regard to vocational factors, the Board notes that the SSA records show that the Veteran stated he has a general education diploma, attended business college for two years, and has substantial work experience including self-employment in a lawn care business and as a truck driver. See, e.g., Work History and Disability Reports in SSA records; October 2010 VA Mental Health Examination. The Veteran had experience in service equivalent to a Proof Tech Helper as well. See Veteran's Certificate of Release or Discharge. Therefore, the Board finds that the Veteran has a demonstrated ability to perform some skilled or semi-skilled work including lawn care, truck driving, and obtaining contacts for business. He also reported that he quit working in his lawn care business because of his back; not due to his service-connected disabilities. The evidence of record does not reflect that he is unable to maintain and sustain gainful employment of a skilled or semi-skilled nature in a sedentary environment, based solely on his service-connected disabilities. For the reasons and bases set forth above, the Board finds that the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs