Citation Nr: 18150068 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-36 185 DATE: November 14, 2018 ORDER Entitlement to a total disability based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected enuresis prevents him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU are approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to December 1976 and from December 1977 to January 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA). TDIU – Background Law A request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also 38 C.F.R. § 3.156(b). If the claimant or the evidence reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. TDIU – Analysis The Veteran contends that he is unable to maintain substantially gainful employment because of his service-connected enuresis, which VA has rated as 60 percent disabling since February 25, 2013. Therefore, the Board finds that the Veteran meets the schedular percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). Thus, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. VA has consistently denied a TDIU because it has focused upon the non-service connected disabilities that the Social Security Administration awarded disability. While relevant, this is not dispositive. Indeed, the Veteran's enuresis considerably impacts his activities of daily living. First, a January 2011 statement from Dr. J.M., a VA physician, states that the Veteran "cannot walk, stand for any amount of time." Second, a December 2011 VA treatment record shows the Veteran "often urinates on self while riding in vehicle." Third, a statement from the Veteran's attorney in December 2013, citing an August 2013 VA treatment record, notes "a prescription for absorbent briefs because the veteran's incontinence has worsened causing him to require the use of 6-8 briefs per day, which is …'inhibiting his quality of life.'" Fourth, a statement from the Veteran’s attorney in June 2014, citing Dr. J.M., noted the physician "recently prescribed the veteran 100 bed pads per month." Fifth, the Veteran submitted an August 2018 statement from Dr. K.N., his VA primary care physician, which noted the "patient is likely to have frequent absenteeism from a work site" because of his enuresis. The Veteran claims he last worked in the mid 2000's as a longshoreman. Although he stopped working because of non-service connected asthma and foot disabilities, the Board finds that, at a minimum, equipoise has been reached regarding the question of whether the Veteran can obtain gainful employment because of his enuresis. The Veteran is incapable of prolonged sitting, which when combined with the need to relieve himself often and quickly, hinders employment. Therefore, the Board, applying the benefit of the doubt rule, grants a TDIU. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel