Citation Nr: 18148523 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-25 547 DATE: November 7, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) effective April 1, 2015, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. From April 1, 2015, the Veteran has been service connected for the following disabilities: obstructive sleep apnea, a thoracolumbar spine disability, prostate cancer residuals, a cervical spine disability, tinnitus, hypertension, gastroesophageal reflux disease (GERD), bilateral carpal tunnel syndrome, bilateral shoulder arthritis, bilateral hip arthritis, bilateral degenerative joint disease of the knees, residuals of a rib fracture, bilateral cataracts, scars of the chest and left arm, toe fungus, and erectile dysfunction. 2. From April 1, 2015, to April 27, 2015, these disabilities were rated 80 percent disabling with the obstructive sleep apnea being rated as 50 percent disabling. 3. Since April 28, 2015, these disabilities have been rated 90 percent disabling with the obstructive sleep apnea being rated as 50 percent disabling. 4. The weight of evidence shows that any part-time employment the Veteran has had since April 1, 2015, is marginal employment. 5. The evidence is in equipoise as to whether the Veteran’s service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since April 1, 2015. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU have been met since April 1, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1962 to February 1966, from November 1990 to August 1991, and from May 1999 to September 2013, with additional service in Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2014 rating decision, the RO granted service connection for prostate cancer and assigned a zero percent disability rating. The Veteran filed a timely notice of disagreement with the assignment of a zero percent disability rating for prostate cancer. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the RO took jurisdiction of TDIU and denied the issue in an August 2015 rating decision. The RO issued a statement of the case in March 2018 on the issue of TDIU, and the Veteran filed a VA Form 9 in May 2018 on the issue of TDIU. In a March 2018 rating decision, the RO assigned a 100 percent disability rating for prostate cancer effective from September 2, 2013, to March 31, 2015, and granted special monthly compensation based on housebound status effective from September 2, 2013, to March 31, 2015. The Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (the Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation based on housebound status. Hence, the concerns addressed in Bradley are not present in the current case as the Veteran had already been awarded special monthly compensation based on housebound status prior to April 1, 2015. As such, only the issue of entitlement to TDIU since April 1, 2015, is before the Board at this time. In October 2018, the Veteran’s representative presented argument on an increased rating for prostate cancer residuals. Though the RO issued a statement in the case in March 2018 on the issue of an increased rating for prostate cancer, the Veteran in his May 2018 VA Form 9 indicated that he was only appealed the denial of TDIU. Moreover, the RO did not certify the issue of an increased rating for prostate cancer residuals for appeal. Therefore, the issue of an increased rating for prostate cancer residuals is not before the Board at this time. Entitlement to TDIU since April 1, 2015 Governing Law and Regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently 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 he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. 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). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Analysis From April 1, 2015, the Veteran has been service connected for the following disabilities: obstructive sleep apnea, a thoracolumbar spine disability, prostate cancer residuals, a cervical spine disability, tinnitus, hypertension, gastroesophageal reflux disease (GERD), bilateral carpal tunnel syndrome, bilateral shoulder arthritis, bilateral hip arthritis, bilateral degenerative joint disease of the knees, residuals of a rib fracture, bilateral cataracts, scars of the chest and left arm, toe fungus, and erectile dysfunction. From April 1, 2015, to April 27, 2015, these disabilities were rated 80 percent disabling with the obstructive sleep apnea being rated as 50 percent disabling. Since April 28, 2015, these disabilities have been rated 90 percent disabling with the obstructive sleep apnea being rated as 50 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since April 1, 2015. In April 2015 formal TDIU claim, the Veteran reported that he last worked full time in 2013 when he was in service. He stated that he had four years of college and that he had not had any education or training since he became too disabled to work. In a September 2018 statement, the Veteran’s representative reported that the Veteran has a Master’s degree. February 2014 VA examination reports show that the Veteran’s bilateral carpal tunnel syndrome impairs his ability to work because he cannot grip, push, pull, or lift more than infrequently. His bilateral hip disability limits his ability to walk because he can only walk up to one hour at time and because he can only walk four hours during an eight-hour work day. His bilateral shoulder and thoracolumbar spine disabilities limit his ability to lift because he can only lift 30 pounds occasionally. His bilateral shoulder disability further limits his ability to lift because he should not lift overhead on the right side. His cervical spine disability impacts his ability to work because he cannot fully extend or rotate the neck during work activities and can only look minimally overhead due to limitation of extension. June 2015 VA examination reports reflect that the cervical spine disability impacts the Veteran’s ability to work because he cannot do repetitive overhead lifting or head movements. The thoracolumbar spine disability impacts his ability to work because he cannot do heavy manual labor. A June 2015 VA prostate cancer examination report reveals that the examiner stated that prostate cancer did not impact his ability to work. The examiner noted that the voiding dysfunction causes urine leakage that requires absorbent material that must be changed less than two times a day. The examiner indicated that the voiding dysfunction causes increased urinary frequency resulting in a daytime voiding interval between two and three hours and nighttime awakening to void two times. A March 2018 VA prostate cancer examination report shows that the examiner (who also conducted the June 2015 examination) stated that prostate cancer did not impact his ability to work. The examiner noted that the voiding dysfunction causes urine leakage that requires absorbent material that must be changed less than two times a day. The examiner indicated that there was no increased urinary frequency. In his May 2018 VA Form 9, the Veteran reported that he only changed his absorbent materials at home because changing them during a workday would require disrobing in a public facility. He stated that because he could not change his absorbent materials in a public facility, he would have to wear soiled absorbent materials at work and that the noticeable lingering smell of urine would inhibit social interactions at work. The Veteran further argued that obtaining minimum-wage laborer employment is difficult because of the limitations from his thoracolumbar spine disability. In the September 2018 statement, the representative noted that the Veteran uses a CPAP machine for his sleep apnea and that he has an inability to fall asleep and remain in a restful sleep for any reasonable length of time. The representative indicated that the sleep apnea severely affects the Veteran’s ability to focus on complex tasks and remain alert on the job. The representative stated that difficulties in remaining alert and engaged in work-related tasks or duties can impact the safety of the Veteran and his co-workers. In his May 2018 VA Form 9, the Veteran stated that in the last four years he has only be able to obtain part-time minimum wage laborer employment. The Veteran is competent to report the type and nature of his post-service employment, and the Board finds him credible. The Board notes that part-time employment at the federal minimum wage does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The weight of evidence shows that any part-time employment the Veteran has had since April 1, 2015, is marginal employment. Even though the VA examiner stated that the prostate cancer does not impact the Veteran’s ability to work, the VA examination reports reflect that there is employment impairment from the residual bladder incontinence. Although the Veteran has a Master’s degree, the Board places great weight on the evidence of employment impairment from the bladder incontinence and obstructive sleep apnea that would impact any type of job that is consistent with his education and occupational experience. Moreover, there is employment impairment from the orthopedic and neurological disabilities that would impact any non-sedentary employment. Simply put, the evidence is in equipoise as to whether service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since April 1, 2015. Accordingly, entitlement to TDIU since April 1, 2015, is in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel