Citation Nr: 18156838 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-59 745 DATE: December 11, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected residuals of prostate cancer are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU on a schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision. 1. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran asserts that he is unable to secure or follow a substantial gainful occupation due to increased urinary frequency and voiding dysfunction, associated with his service-connected prostate cancer. See May 2015 TDIU claim; July 2015 Correspondence; November 2015 statement; December 2016 substantive appeal. The Board concludes that residual symptoms from the Veteran’s prostate cancer at least as likely as not preclude him from engaging in substantially gainful employment. A total disability rating 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 as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where 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. § 4.16(a). In this case, the Veteran’s service-connected prostate cancer is rated as 60 percent disabling, based on residuals. As such, he meets the criteria for consideration for entitlement to TDIU on a schedular basis under § 4.16(a). Even so, it must be found that he is unable to secure or follow a substantially gainful occupation. Consequently, the Board must determine whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (“[T]he only logical reading of the regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal—i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.”). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran last worked full-time in November 2011. See May 2015 TDIU claim. Up to that point, and for the previous 18 years, he had been self-employed as the owner of a drilling and pump service company. See id.; May 2015 statement. Since then, and following surgery for prostate cancer, the Veteran has done odd handyman jobs in his community. See July 2015 Correspondence. He admits that he has the physical capacity to do this type of small construction work, particularly if it is close to his home, but asserts that such part-time work is hard to come by due to economic hardship in his community, adding that full-time construction work is impossible for him due to his urinary problems. See id. In June 2015, a VA examiner determined that the Veteran’s urinary incontinence and urgency prevented him from working on construction sites, but did not prevent him from doing sedentary work in a setting with access to a restroom with running water. Having reviewed the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s service-connected residuals of prostate cancer render him unemployable for purposes of a TDIU. The evidence shows that the Veteran’s urinary incontinence and urgency prevent him from doing substantial (full-time) construction work. In this regard, the Veteran, in December 2016, submitted a statement from a past employer, indicating that he hired the Veteran on a probationary basis, but could not accommodate his urinary-related limitations. While he has been able to do some light construction work in recent times, the evidence indicates that this type of work has been marginal. Although some evidence suggests that the Veteran might be able to do sedentary work, the Board finds that such an option is not realistic given the Veteran’s education level and previous work experience. The Veteran has one year of college education and, as already stated, his work experience consists mainly of construction-related physical work. There is no indication that the Veteran has the skills, training, or experience to secure or maintain a sedentary job in the modern economy. The Board further notes that the Veteran has been excused from jury duty in January 2013, a completely sedentary activity, due to his condition. To summarize, the Board finds the evidence to be in equipoise with respect to whether the service-connected disability at issue precludes the Veteran from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that his service-connected residuals of prostate cancer are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, entitlement to a TDIU is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel