Citation Nr: 18144392 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 10-27 051 DATE: October 24, 2018 REMANDED Entitlement to a referral for consideration of an extraschedular rating for erectile dysfunction is remanded. Entitlement to a referral for consideration of an extraschedular rating for residuals of prostate cancer is remanded. Entitlement to a referral for consideration of an extraschedular rating for a residual prostatectomy scar is remanded. Entitlement to a referral for consideration of an extraschedular rating for chronic pelvic pain is remanded. Entitlement to a total disability based upon individual unemployability as a result of service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a veteran who served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in May 2016, granting a joint motion for partial remand (JMPR) vacating that part of a June 2015 Board decision denying referral for an extraschedular rating and a TDIU and remanding the matters for additional development. The issues initially arose from rating decisions in March 2009 and February 2014 by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were remanded for additional development in December 2016, including consideration for an extraschedular rating referral for all of the Veteran’s service-connected disabilities collectively. The Board notes that VA regulations pertinent to extraschedular rating consideration under 38 C.F.R. § 3.321(b)(1) were revised effective January 8, 2018, in essence, amending the regulation such that extraschedular rating consideration was to apply only to single service-connected disabilities. The Court subsequently concluded that there was no impermissible retroactive effect inherent in VA’s intent to have the new regulation apply to claims currently on appeal and found that a collective-impact theory of entitlement to extraschedular referral was no longer valid law. Thurlow v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1225 (Sep. 12, 2018). Therefore, the extraschedular referral matters addressed in the prior remand, although remaining on appeal, are more appropriately addressed as separate issues for appellate review. 1. Entitlement to a referral for consideration of an extraschedular rating for erectile dysfunction is remanded. 2. Entitlement to a referral for consideration of an extraschedular rating for residuals of prostate cancer is remanded. 3. Entitlement to a referral for consideration of an extraschedular rating for a residual prostatectomy scar is remanded. 4. Entitlement to a referral for consideration of an extraschedular rating for chronic pelvic pain is remanded. 5. Entitlement to a TDIU is remanded. The Veteran contends that extraschedular rating consideration referrals for his service-connected erectile dysfunction, residuals of prostate cancer, residual prostatectomy scar, and chronic pelvic pain are warranted as an exceptional case under the provisions of 38 C.F.R. § 3.321(b)(1). The governing norm in such exceptional cases currently is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1) (as amended January 8, 2018). In an August 2018 brief in support of the claim the Veteran’s attorney, citing Thun v. Peake, 22 Vet. 111 (2008), asserted that the rating criteria did not contemplate the Veteran’s symptoms. It was asserted that the Veteran had symptoms and impairments associated with his prostate cancer, other that the voiding dysfunction and complete paralysis of the ilio-inguinal nerve for which he is receiving compensation. Specifically, that he had stress incontinence and an inability to sit for longer than 30-minutes due to pelvic pain. No other specific symptoms or impairments were reported. It was further asserted that VA examinations as to the chronic pelvic pain disability were inadequate because they did not identify the specific nerve involved. The Board finds that additional development is required as to the extraschedular rating consideration referral issues, to include an additional VA examination to specifically identify any manifest symptoms and functional impairments and specific nerve involvement. The Veteran also contends that entitlement to a TDIU is warranted. VA regulations provide that it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submissions for extraschedular consideration should be made for the cases of all veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in subsection (a). 38 C.F.R. § 4.16(b) (2018). VA records show the Veteran first met those percentage standards on March 28, 2011. However, the available evidence is inconsistent as to the reason and timing of the Veteran’s employment impairment. In his October 2011 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he reported he last worked as a truck driver in October 2007. In a November 2012 VA Form 21-8940 he reported he had last worked as a truck driver full-time in July 2008. At his April 2015 Board hearing he testified that he last worked in 2008. In support of his claim he provided a copy of a July 2018 private vocational assessment which found that it was more likely than not that the Veteran had been unable to maintain substantial gainful employment as a result of his service-connected disabilities since at least 2007. The examiner noted the Veteran stated he had tried to work part-time in 2008, but provided no comments as to the apparent discrepancy in VA treatment and examination reports indicating the Veteran had been employed as recently as 2015. Nor has the Veteran provided sufficient information as to the nature of all of his employment, whether full-time or part-time, over the course of this appeal. The Board finds that additional development is required as to this matter for an adequate TDIU determination. The Board also notes that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether that veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The matters are REMANDED for the following action: 1. Request that the Veteran provide additional information as to the nature of all of his employment, whether full-time or part-time, over the course of this appeal. 2. Schedule the Veteran for an examination by an appropriate clinician to identify the specific nerve involved with his service-connected chronic pelvic pain disability and to address any additional functional impairment associated with his claimed stress incontinence and inability to sit for more than 30-minutes. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his service-connected erectile dysfunction, residuals of prostate cancer, residual prostatectomy scar, and chronic pelvic pain disabilities, individually, and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel