Citation Nr: 1805415 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-29 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for erectile dysfunction, secondary to prostate cancer treatment. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 3. Entitlement to a disability rating in excess of 60 percent for urinary incontinence residuals of prostate cancer. WITNESS AT HEARING ON APPEAL The Veteran REPRESENTATION Veteran represented by: Shannon L. Brewer, Attorney ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and August 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in June 2015. A transcript of the hearing is associated with the claims file. However, the VLJ who conducted that hearing is no longer with the Board. Under VA regulations, a claimant is entitled to have final determination of his or her claim made by the VLJ who conducted a hearing. 38 C.F.R. § 20.707. By correspondence dated in May 2017, the Veteran was offered the opportunity to have another hearing before a current VLJ. No response has been received from the Veteran, and the Board will proceed accordingly. The issue of entitlement to an increased rating for urinary incontinence residuals of prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, erectile dysfunction is related to his service-connected residuals of prostate cancer. 2. The evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities beginning October 11, 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2017). 2. The criteria for entitlement to TDIU have been met beginning October 11, 2013. 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 FINDINGS AND CONCLUSIONS Erectile Dysfunction The Veteran claims that his erectile dysfunction was caused by the treatment for his service-connected prostate cancer disability. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2017). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a non-service-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 vet. App. 439 (1995). At a VA examination in January 2016 an examiner noted a current diagnosis of erectile dysfunction. The examiner opined that it was as least as likely as not attributable to the residuals of his prostate cancer treatment. In a second examination report, the examiner was asked to state whether erectile dysfunction was caused by the result of an injury or disease incurred in service. The examiner opined that none of the genitourinary findings or symptoms in the service treatment records were primary causes of erectile dysfunction. The examiner was also asked whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected urinary incontinence, depression or varicocele. In his response, the examiner opined that the Veteran's erectile dysfunction is not related to his urinary incontinence or his asymptomatic varicocele. He noted that the Veteran's depression or the associated medication may have contributed but there is no medical provider [or] documentation to substantiate that supposition. The Board acknowledges the seemingly contradictory medical nexus opinions provided by the same examiner. However, upon close review of the opinions and rationales, it appears that the examiner indeed believed that the erectile dysfunction is a residual of the prostate cancer-for which the Veteran is service-connected. However, his opinion and explanation further suggest that the erectile dysfunction is not a direct result of the residual incontinence itself. The Veteran is essentially service-connected for his prostate cancer; however, this condition currently is manifested with a residual symptom of urinary incontinence. Thus, his erectile dysfunction is a residual of his service-connected condition which is prostate cancer. In light of the competent and favorable nexus evidence discussed above, and resolving all reasonable doubt in favor of the Veteran, service connection for erectile dysfunction is warranted. TDIU The Veteran has essentially contended that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the process of determining whether unemployability exists for TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes her case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities include: (i) unspecified depressive disorder (70 percent); (ii) urinary incontinence residuals of prostate cancer (60 percent); (iii) left varicocele (10 percent); (iv) residuals of speech changes associated with Parkinson's disease (10 percent); (v) Parkinson's disease (10 percent); (vi) left upper extremity tremor with bradykinesia (10 percent); (vii) right upper extremity tremor with bradykinesia (10 percent); (viii) periodic urinary incontinence associated with left varicocele (zero percent); (ix) bradykinesia, left lower extremity (zero percent); (x) bradykinesia, right lower extremity (zero percent); (xi) loss of smell (zero percent); (xii) loss of automatic movements, left side; and (xii) loss of automatic movements, right side. The Veteran's combined rating for his service connected disabilities was 70 percent, effective December 13, 2010. His combined schedular disability was 70 percent from December 13, 2010, 80 percent from December 4, 2012, and 90 percent from October 21, 2016. The Veteran received a mental health evaluation in July 2011, and the examiner indicated that his depression did not impede his ability to work. He also received a VA examination at that time, and the examiner opined that the Veteran's erectile dysfunction, prostate cancer, and incontinence did not render him unable to seek or maintain employment. In October 2013, Dr. M. H. submitted correspondence indicating that the Veteran was not physically capable of full time employment in any capacity. The Veteran testified at a Board hearing in June 2015, and indicated that he did not inform his examiner at his VA examination that he retired for medical reasons. However, he brought documentation that he retired due to his incontinence and prostate issues in December 2009. Two years later, he applied for another position with his former employer, but was told that they were worried that he would not be able to work for long and he did not get the position. Afterwards, the Veteran attended vocational rehabilitation, but was told that he was unemployable due to his age, disabilities, and being out of the workforce for several years. His counselor recommended that the Veteran do volunteer work, but he declined. The Veteran also moved from a single family home to an assisted living facility. The Veteran received an independent vocational assessment in November 2017, and the clinician noted that the Veteran was a high school graduate and attended mechanic school while in service. The Veteran also obtained a degree in Organic Chemistry after service. The clinician recounted the Veteran's work history and indicated that he worked in both sedentary and physical environments. Most recently, the Veteran worked as an administrative clerk. The clinician opined that the Veteran's prior job skills were obsolete, and therefore he did not have any ability to transfer any of those skills to lighter, alternative employment. Such inability would render him capable of only entry level, unskilled employment without going through any further educational development. However, the clinician indicated that this would not be appropriate given the Veteran's continuing psychological and physical limitations. The clinician continued that the Veteran's major depressive disorder resulted in significant psychological impairment to competitive employment and, combined with his incontinence and left varicocele, rendered him totally unable to obtain or maintain substantially gainful employment since at least October 11, 2013. On that date, Dr. M. H., the Veteran's private urologist, opined that the Veteran was not physically capable of full time employment due to his urinary problems. The vocational rehabilitation counselor found that the Veteran's chronic incontinence required frequent bathroom breaks, which would negatively interfere with his ability to concentrate at work, nor would it be tolerated by an employer in a competitive market of any nature at any physical demand level. Furthermore, the Veteran's work history and education had not provided him with transferable skills to alternative occupations. Although vocational services were offered, the counselor opined that those efforts would be unsuccessful given the complexity of the Veteran's combined limitations. As such, due to his chronic symptoms associated with his major depressive disorder and urinary incontinence, and the associated deficits, the clinician opined that the Veteran had been unable to maintain substantially gainful employment since October 11, 2013. The competent medical evidence prior to October 11, 2013 indicates that the Veteran's service connected disabilities did not impact his ability to work. He received VA examinations and treatment for his mental health disability, as well as his erectile dysfunction, prostate cancer, and incontinence. The examiners considered the results of the examinations and treatment and concluded that the Veteran was able to maintain substantially gainful employment. As such, the Board finds that entitlement to TDIU prior to October 11, 2013 is not warranted. However, the Board will resolve reasonable doubt in the Veteran's favor and award entitlement to TDIU beginning October 11, 2013. The Veteran testified credibly at his Board hearing that he retired for medical reasons, but was able to work after retirement. More important, he wanted to work; however, he was unable to secure employment due to his age, disabilities, and lack of skills. Furthermore, the private vocational rehabilitation study is highly probative in evaluating the Veteran's claim. In this regard, the clinician provided a thorough rationale on the Veteran's inability to obtain substantially gainful employment beginning on October 11, 2013. At this time, the Veteran's service-connected disabilities worsened to a degree where they would prevent him from working or even training to work. The Veteran had experience in sedentary employment, but the need to use the bathroom repeatedly, combined with his mental health issues, would prevent him from working in such an environment. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that he is unable to secure or follow gainful employment, beginning October 11, 2013. Indeed, coupled with the Veteran's work experience and employment history, his various service-connected disabilities and symptoms are shown to cause significant distress or impairment in the occupations which he has held to this point in time. Accordingly, the Board finds that an award of TDIU is warranted, beginning October 11, 2013. ORDER Resolving all reasonable doubt in favor of the Veteran, service connection for erectile dysfunction is granted. Resolving all reasonable doubt in favor of the Veteran, entitlement to TDIU beginning October 11, 2013, is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND The issue of entitlement to a disability rating in excess of 60 percent for urinary incontinence residuals of prostate cancer must be remanded for issuance of a statement of the case. In an August 2013 rating decision, the RO granted the Veteran's claim for urinary incontinence residuals of prostate cancer and awarded an initial 60 percent evaluation. The Veteran submitted a VA Form 9 in October 2013 for other issues on appeal (service connection erectile dysfunction and TDIU) but also indicated that he disagreed with the initial evaluation for residuals of prostate cancer, arguing that he was due a 100 percent evaluation for his service-connected prostate cancer until an examination for residuals was completed. No action was taken in response to the Veteran's statement. The Veteran again expressed disagreement with his initial rating in March 2016 correspondence, noting that he had first disagreed with this rating in 2013. The Board will construe the October 2013 correspondence as a timely NOD, and therefore a statement of the case (SOC) must be issued in response. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Provide the Veteran with an SOC addressing the issue of entitlement to an initial disability rating in excess of 60 percent for urinary incontinence residuals of prostate cancer. The Veteran should be advised that a timely substantive appeal will be necessary to perfect the appeal to the Board and the RO should also ensure that all VCAA notice and assistance requirements are satisfied. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs