Citation Nr: 18160280 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 15-12 103A DATE: December 27, 2018 ORDER The appeal for an earlier effective date for service connection of diabetes mellitus type II, erectile dysfunction, and residuals of prostate cancer is dismissed. The appeal for an increased rating in excess of 40 percent for residuals of prostate cancer is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT 1. In a July 2018 correspondence, the Veteran, through his representative, e withdrew the claims for entitlement to an earlier effective date for service connection of diabetes mellitus type II, erectile dysfunction, and residuals of prostate cancer, as well as his claim for a rating in excess of 40 percent for residuals of prostate cancer. 2. The Veteran has a combined rating of 50 percent for his service connected disabilities; and, the record does not otherwise show that his service connected disabilities alone are of sufficient severity to produce unemployability. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeal for an earlier effective date for diabetes mellitus type II, erectile dysfunction, and residuals of prostate cancer have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the appeal for an evaluation in excess of 40 percent for residuals of prostate cancer have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1984 to February 1984. This matter comes before the Board from an April 2012 rating decision. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in August 2016. The transcript is in the record. 1. Entitlement to an earlier effective date for diabetes mellitus type II, erectile dysfunction, and residuals of prostate cancer and entitlement to a rating in excess of 40 percent for residuals of prostate cancer The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In a July 2018 correspondence, the Veteran, through his representative, e withdrew the claims for entitlement to an earlier effective date for service connection of diabetes mellitus type II, erectile dysfunction, and residuals of prostate cancer, as well as his claim for a rating in excess of 40 percent for residuals of prostate cancer. The written submission from the Veteran’s representative is sufficient to withdraw these two claims. Accordingly, the Board does not have jurisdiction to review the appeal and matters are dismissed. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran alleges that he is entitled to a total disability rating based on individual unemployability. 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. 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 is currently service connected for residuals of prostate cancer rated at 40 percent and diabetes mellitus rated at 20 percent. He is also service connected for erectile dysfunction associated with residuals of prostate cancer, which is rated noncompensable. His combined rating is 50 percent. The Veteran does not meet the schedular requirements under 38 C.F.R. § 4.16 (b) for TDIU. Pursuant to the provisions of 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but does not meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Extraschedular ratings are intended to serve a “gap-filling” function when the veteran’s overall disability picture establishes something less than total unemployability, but where the collective impact of the veteran’s disabilities are nonetheless inadequately represented. 38 C.F.R. § 3.321 (b)(1). A grant of TDIU results in the Veteran being deemed to have total unemployability with no “gap” to fill by § 3.321(b), and thus rendering the question of extraschedular consideration moot. See Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). Where the schedular criteria for TDIU set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The Veteran, on a May 2012 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked as a teacher in March 2012. The Veteran has indicated that his highest level of education is four years of college and he is certified to teach English and Theatre Arts. Statements from the Veteran, his wife, former colleagues, and a friend describe the Veteran’s difficulty working as a teacher and the circumstances surrounding his retirement from teaching as a due to residuals of his prostate cancer. The statements indicate that the Veteran is extremely tired during the day due to waking up five to eight times a night, depending on his water consumption, to void his bladder. As a result of the Veteran’s fitful sleep, he generally naps throughout the day. Additionally, during the day, the Veteran voids his bladder approximately every forty-five minutes, adding further interruption to any activity. The Veteran’s wife and friend noted that activities the Veteran used to be able to do easily now render him exhausted. The Veteran’s wife stated that trips to doctor’s offices, only about thirty minutes from their home, would cause the Veteran to be in bed for twelve hours sleeping and resting. The Veteran asserts that these interruptions, and his fatigue, make it impossible for him to maintain substantial employment as no employer would allow him to be so tired, or void his bladder as much as the Veteran needs. A letter from the Superintendent of the school district for which the Veteran previously worked, stated that he would be unable to rehire the Veteran due to his health issues. The Veteran’s fatigue and need for bathroom breaks could leave students unattended, which is strictly prohibited. The Veteran additionally stated that he would be hesitant to return to classroom work for the same reasons. A letter from Dr. J.M., again enforce the Veteran’s statements of extreme fatigue and frequent bladder voiding. Dr. J.M. notes that the symptoms described by the Veteran are to some degree atypical, though these symptoms do occur in some patients. Dr. J.M. opined that the Veteran would be unable to secure gainful employment due to his issues of chronic fatigue and frequency of bladder voiding. At the Board hearing, the Veteran testified that he would be unable to do physical work because he lacks the stamina to stand for lengthy periods of time. Additionally, he would be need to be near the restroom and would need to be able to visit it frequently. The Veteran testified that he would be unable to do sedentary work as he would be unable to stay awake. He explained how he would fall asleep in the middle of a class that he was teaching. Full consideration has been given to the Veteran’s statements, the statements received on behalf of the Veteran, and the statement from Dr. J.M. regarding the Veteran’s limitations due to the residuals of his prostate cancer. There is no question that the residuals of the prostate cancer result in voiding dysfunction, to include the need to frequently use the restroom or change absorbent materials. However, as also discussed, much of the Veteran’s perceived problems with employment have been attributed to chronic fatigue and reduced stamina related to that fatigue. He is not service connected for chronic fatigue. To the extent that he believes his chronic fatigue is due to his prostate cancer, such a claim has not been filed. Accordingly, referral for an extraschedular rating for TDIU is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel