Citation Nr: 1803307 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 15-03 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran had active service from December 1968 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a July 2014 rating decision, the RO granted a temporary 100 percent rating for the Veteran's prostate cancer based on active malignancy, effective May 8, 2014. The Board, in an August 2017 decision, denied an increase in rating in excess of 40 percent prior to March 11, 2011, for the service-connected prostate cancer, post prostatectomy and residuals. The Board also granted an increase rating to 60 percent disabling, effective March 11, 2011, to May 7, 2014, for the Veteran's service connected prostate cancer post prostatectomy and residuals; this award was implemented in an August 2017 Decision Review Officer decision. The Board remanded the TDIU for further development and it has since returned for further appellate consideration. In October 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. After the hearing, the Veteran submitted additional argument and evidence along with a waiver of initial RO consideration. The issue of depression, as secondary to prostate cancer, has been raised by the record in a January 2015 VA disability benefits questionnaire, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As this claim was received prior to March 24, 2015, it is not required to be on a VA Form 21-526 or VA Form 21-526EZ. See 38 C.F.R. §§ 3.155, 3.160 (2017). It was referred by the Board in the August 2017 decision, but it does not appear that any further development has been undertaken by the RO. The Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Additionally, in his June 2017 informal hearing presentation (IHP), the appellant raised claims for service connection for pes planus, back pain with sciatica, to include as secondary to pes planus, a broken nose, and an acquired psychiatric disorder, to include as secondary to service-connected prostate cancer. These requests were referred to the AOJ in the previous August 2017 Board decision for appropriate action to be determined by the AOJ in accordance with the revised regulations. It does not appear that any action has been undertaken by the RO as to these claims; thus, the Board again refers these claims to the RO for appropriate actions to be undertaken. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to an extraschedular TDIU prior to March 11, 2011, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT With resolution of any reasonable doubt in his favor, the Veteran's service-connected disabilities preclude him from obtaining and maintaining both physical and sedentary employment beginning March 11, 2011. CONCLUSION OF LAW The criteria for a schedular TDIU are met beginning March 11, 2011. 38 U.S.C. §§ 1155, 5107(b)(2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board limits its discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Governing TDIU Laws and Regulations VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 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. See 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Board finds that the Veteran did not met the schedular criteria requirements under 38 C.F.R. § 4.16 (a) before March 11, 2011. Prior to March 11, 2011, the Veteran was service connected for prostate cancer, post prostatectomy with urinary incontinence, rated as 40 percent disabling; bilateral hearing loss, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; erectile dysfunction, rated as 0 percent disabling; and scars resulting from the prostatectomy, rated as 0 percent disabling. Therefore, before March 11, 2011, the Veteran had multiple disabilities ratable at a combined evaluation of 50 percent. As such, the Board finds that the minimum schedular criteria for TDIU are not met for the period on appeal before March 11, 2011. The Board finds that the Veteran met the schedular criteria requirements under 38 C.F.R. § 4.16 (a) beginning March 11, 2011. Beginning March 11, 2011, the Veteran is service connected for prostate cancer, post prostatectomy with urinary incontinence, rated as 60 percent disabling; bilateral hearing loss, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; erectile dysfunction, rated as 0 percent disabling; and scars resulting from the prostatectomy, rated as 0 percent disabling. Therefore, beginning March 11, 2011, the Veteran had multiple disabilities ratable at a combined evaluation of 70 percent with at least one disability rated at 40 percent or greater. As such, the Board finds that the minimum schedular criteria for TDIU are met for the period on appeal beginning March 11, 2011. Beginning May 8, 2014, the RO granted the Veteran a 100 percent disability rating for the prostate cancer, status post laparoscopic prostatectomy with urinary incontinence because of an active malignancy. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. Analysis- Entitlement to TDIU After a review of all the evidence, the Board concludes that the evidence is at least in equipoise as to whether the Veteran's disabilities alone are of sufficient severity to produce unemployability beginning March 11, 2011. The Veteran reported he last worked in July 2009 due to his service-connected disabilities. See October 2017 hearing testimony; January 2012 Application for TDIU. The Vet reported in a July 2010 VA examination that after his radical prostatectomy, he experienced uncontrollable urinary incontinence. The Veteran reported urinating approximately six times in a two hour period during the day and night. Despite the Veteran's severity of symptoms, the VA examiner opined that the prostate cancer and urinary incontinence had no effect on the Veteran's daily life. Additionally, the Veteran was also afforded a VA examination for his bilateral hearing loss and tinnitus in July 2010. He reported having difficulty hearing and understanding normal conversation, both in one on one and group settings. No opinion was provided regarding the effect the hearing loss and tinnitus had on the Veteran's ability to obtain or maintain substantially gainful employment. The Veteran credibly reported in his March 2011 notice of disagreement that he has no control over his urination and that he changed his absorbent pads seven to eight times per day and six times per night. Similarly, the Veteran's spouse also confirmed in a March 2011 statement that the Veteran leaks urine all day and night and frequently changes his absorbent pads. See also Veteran's statement dated January 2012. The Board finds that the Veteran's statements regarding the frequency of his urination are both competent and credible. The frequency of urination is something a lay person can observe through his senses. See Layno, 6 Vet. App. 465, 469. The Board finds the Veteran's statements regarding his frequency of urination and how that effects his ability to obtain and maintain substantially gainful employment to be probative and assigns these statements high weight. To the contrary, the medical opinions found in the July 2010 VA examinations are not probative as to the issue of whether the Veteran can obtain and maintain substantially gainful employment. The July 2010 VA prostate examination did not provide a supporting rationale for the ultimate conclusion that the prostate cancer and its residuals, to include urinary incontinence, did not affect the Veteran's ability to obtain and maintain substantially gainful employment. Additionally, no medical opinion was provided in the July 2010 VA audiological examination as to the effect the bilateral hearing loss and tinnitus on the Veteran's employability. Therefore, these opinions are not probative and are assigned no weight. The Veteran was afforded an additional VA examination in January 2012. The Veteran reported that he started leaking urine constantly after his prostate surgery in July 2009. He reported using male guard pads under his underwear and that he must change the paid every hour. The Veteran also experienced groin rashes due to the moisture from the near constant leak of urine. The examiner reported the Veteran experienced a voiding dysfunction, to include voiding at intervals of one and two hours during the day and five or more times during the night. The examiner opined that the Veteran cannot work as a truck driver anymore because of frequent visits to the restroom. Although the determination of employability for purposes of a TDIU is a decision for the adjudicator and not a medical determination, the Board finds this medical opinion to be probative of the issue and assigns it high evidentiary weight. Further, the Veteran was afforded an additional VA audiological examination in January 2012 for the service-connected hearing loss and tinnitus. The Veteran reported the hearing loss affected his ability to hear conversations, and the tinnitus caused difficulty sleeping. The Veteran reported similar functional losses due to the hearing loss and tinnitus in a May 2013 VA examination. No medical opinions were provided as to how these disabilities may affect the Veteran's ability to obtain and maintain substantially gainful employment. However, the Board notes that the Veteran's Maryland CNC scores indicate a severe sensorineural hearing loss and tinnitus bilaterally. The functional effect of this type of hearing loss is consistent with the functional loss reported by the Veteran. Specifically, these disabilities make it difficult for the Veteran to hear and communicate in a traditional office or retail setting. The Veteran underwent another VA examination for the service-connected prostate cancer and residuals in May 2014. The Veteran reported experiencing constant leakage when laughing, coughing, sneezing, standing, or walking. The examiner noted the Veteran was required to use appliance pads and adult diapers for the urinary incontinence. The examiner reported that the Veteran's voiding dysfunction required absorbent material to be changed more than 4 times during the day. The Veteran reported urinating in intervals less than one hour during the day and that he consistently wakes up five or more times at night to urinate. Most notable, the examiner reported that the Veteran's prostate cancer was currently in active status at that time. Ultimately, the examiner concluded that there were no functional effects of the prostate cancer, surgery, or residuals, and that neither the prostate cancer nor the scar from the surgery affected the Veteran's ability to obtain or maintain substantially gainful employment. The examiner did not provide a rationale to support these conclusions; therefore, the Board does not find this medical opinion to be probative and assigns it no weight. The Veteran submitted an internet article in July 2014 regarding the effects of urinary incontinence from a post-radical prostatectomy has on people generally. The article reports that the urinary incontinence affects quality of life. In this case, the articles are of little probative value because this is a general article which is of much less probative value than the case specific examination findings and opinions. The conclusions of the article provided by the Veteran were unsupported by any citation to medical research or clinical findings and were general in nature and non-specific to the facts of the present case. The record also contains a statement by the Veteran dated August 2017 regarding how the urinary incontinence prevents him from obtaining and maintaining substantially gainful employment. The Veteran reports in three to four interviews for employment since July 2009, he had to leave the interview to use the restroom. The Veteran contends that employers will not hire him because he is unable to complete a short interview without using the restroom. Also of note, the Veteran reported that he now has lost his Class A driver's license to drive a commercial truck because he was unable to sit through the examination without having to leave to use the restroom, which is prohibited by test administrators. The Veteran testified at the October 2017 Board hearing indicated that his last employment was immediately following his radical prostatectomy in July 2009. See also January 2012 TDIU application. The Veteran was previously employed as a commercial truck driver. The Veteran further testified that he has no bladder control or control of his urine drip. The Veteran testified that he must change his absorbent pads seven or eight times a day, and the severity of the urine leak with certain daily activities, such as sneezing, laughing, lifting a heavy object, or stretching. He also testified he urinates frequently throughout the night. The Veteran implies that because he must get up frequently at night, he not fully rested. The Veteran reports the frequency of night urination affects his quality of life and also limits his ability to work. Based on this body of evidence, it is clear that the Veteran's service-connected prostate cancer, status post laparoscopic prostatectomy with urinary incontinence prevents the Veteran from obtaining or maintaining substantially gainful employment beginning March 11, 2011. As early as July 2010, the Veteran reported having to urinate at least six times in each two hour period during the day and six times in each two hour period at night. This evidence suggests that at its least severe, the Veteran would have to urinate approximately 24 times in an eight hour work day. Currently, the Veteran reports having to urinate every 15 minutes during the day, which equates to approximately 32 times in an eight hour workday. Although the Veteran utilizes absorbent pads to deal with his urinary incontinence, he must change the pads between seven and eight times per day. See October 2017 Board Hearing. The high frequency of urination and changing of the absorbent pads would make the Veteran's productivity low due to frequent bathroom breaks. Frequent breaks resulting in low productivity in a work environment decreases the probability the Veteran would be able to obtain or maintain substantially gainful employment, especially considering his previous employment as a truck driver. Further, a VA examiner in a January 2017 examination concluded that the Veteran's prostate cancer affects his ability to work because the Veteran's frequent urinary incontinence and the use of absorbent pads and adult diapers results in an odor. The Veteran also reports experiencing a rash in his groin area frequently because he continuously leaks urine. The Board finds these factors would also significantly impair the Veteran's ability to obtain or maintain any physical or sedentary employment. As noted, the RO increased the Veteran's rating to 100 percent beginning May 2014 for the service-connected prostate cancer and its residuals as the cancer was again active despite the radical prostatectomy. This 100 percent rating is still currently in effect. A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is that a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC ) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In the instant case, in addition to the 100 percent disability rating assigned for the Veteran's service-connected prostate cancer and associated residuals for the rating period on appeal beginning May 8, 2014, service connection is also in effect for bilateral hearing loss, rated as 10 percent disabling, and for tinnitus, rated at 10 percent disabling for this period on appeal. The Veteran is also in receipt of SMC under 38 U.S.C. § 1114 (k) to account for loss of a creative organ as a residual of the prostate cancer. The Veteran does not meet the criteria for SMC under 38 U.S.C. § 1114(s) as his additional disabilities do not reach the 60 percent threshold for additional SMC. Thus, the issue of entitlement to a TDIU is moot for the period on appeal beginning May 8, 2014. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, given the impact of the Veteran's service-connected disabilities, the Veteran was unable to secure and maintain substantially gainful employment due to his service-connected disabilities beginning March 11, 2011. ORDER Beginning March 11, 2011, entitlement to a schedular TDIU is granted subject to the laws and regulations governing payment of monetary benefits. REMAND Remand is necessary to refer for extraschedular consideration, the Veteran's TDIU claim for the rating period on appeal prior to March 11, 2011. Prior to March 11, 2011, the Veteran's service-connected disabilities, when combined, were rated as 50 percent disabling. Thus, prior to March 11, 2011, the Veteran did not meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16 (a). However, 38 C.F.R. § 4.16 (b) also provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extra-schedular rating of unemployability. Therefore, the claim for a TDIU prior to March 11, 2011 is remanded for such a referral. Additionally, the Veteran's representative has indicated that VA treatment records for the period still on appeal are not associated with the claims file. These records should be obtained and considered by the RO when making its determination on an extraschedular TDIU. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records and associate them with the claims file. Specifically, the Veteran's representative contends that VA treatment records are missing from the VA Palm Desert Clinic facility. See June 2017 Informal Hearing Presentation. 2. Provide the Veteran with an opportunity to provide a full statement regarding the severity and functional impact of his service-connected disabilities, as well as to provide more information on his post-service employment history and specific information regarding his educational background, for the appeal period PRIOR TO March 11, 2011. Any additional development regarding this claim for an extraschedular TDIU should be completed. 3. Thereafter, refer the Veteran's claim to the Director, Compensation and Pension Service, for consideration of an extra-schedular TDIU award for the appeal period prior to March 11, 2011. 4. Then, readjudicate the Veteran's claim for a TDIU prior to March 11, 2011. If the claim remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before returning the appeal to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs