Citation Nr: 1806983 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-18 523A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis under 38 C.F.R. § 4.16(b) (2017). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran's case was first before the Board in January 2014, when it was remanded for additional development, which was accomplished in February 2014. In a September 2014 decision, the Board denied, among other claims, the Veteran's claim for entitlement to a TDIU, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court remanded the issue back to the Board pursuant to a February 2015 Court Order based on a February 2015 Joint Motion for an Order to Vacate, In Part, The Board Decision. The Court Order did not disturb any other issues denied by the Board in its September 2014 decision. In a July 2015 decision, the Board again denied the Veteran's claim for entitlement to TDIU, and the Veteran appealed that decision to the Court. In February 2016, pursuant to a February 2016 Joint Motion for Partial Remand (Joint Motion), the Court issued an Order that vacated the Board's decision to deny entitlement to a TDIU and remanded the claim to the Board for action consistent with the Joint Motion. In July 2016, the Board remanded the appeal for development consistent with the February 2016 Joint Motion. The Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge in July 2013. A copy of that transcript is associated with the Veteran's electronic claims file. FINDING OF FACT The competent evidence of record demonstrates that the Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Based upon the favorable outcome in this case, a discussion of VA's duties to notify and assist is not warranted at this time. A May 2008 rating decision granted service connection for residuals of a transurethral resection of the prostate with radiation therapy and loss of erectile power due to prostate cancer and assigned a 40 percent rating, effective October 14, 2005. A January 2009 rating decision granted an earlier effective date of January 5, 2001, for service connection for residuals of prostate cancer and assigned a 60 percent rating from January 5, 2001, through March 8, 2001, a 20 percent rating from March 9, 2001, through April 2, 2008, and a 40 percent rating beginning April 3, 2008. A July 2012 rating decision granted a 100 percent rating for residuals of prostate cancer from January 5, 2001, through June 30, 2001, a 20 percent rating from July 1, 2001, through April 2, 2008, and a 40 percent rating beginning April 3, 2008. The Veteran is also receiving special monthly compensation for loss of use of a creative organ. The Veteran has asserted that his disability prevents him from obtaining and maintaining substantially gainful employment. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the current case, the record reflects that the Veteran completed the eighth grade. He reported having worked as a self-employed farmer and carpenter; he last worked full-time in the late 1990's. Service connection is currently in effect for prostate cancer, evaluated as 40 percent disabling. Therefore, his service-connected disability does not meet the percentage standards for consideration of TDIU rating under 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). On VA genitourinary evaluation in April 2008, the Veteran complained of fatigue, lethargy, and weakness. His urinary symptoms included urgency, a weak or inconsistent stream, and dribbling. He did not have hesitancy/difficulty starting a stream, dysuria, hematuria, leakage, or urethral discharge. There was a daytime voiding frequency of 1-2 hours, and he had nocturia 3-6 times a night. The Veteran reported that he had retired from construction work in 2002 because he was eligible by age or duration of work and because of his physical problem. Examination of the bladder and urethra was normal. The examiner diagnosed prostate cancer, status post hormone therapy, radiation and TURP with residual urinary difficulties and erectile dysfunction. The disability had a moderate effect on his daily activities. The examiner could not determine if there was any evidence of cancer because the Veteran was not adequately following his cancer treatment follow-ups; it was not possible to provide a specific date that the cancer went into remission without resorting to speculation. In December 2008, the Veteran testified before a Decision Review Officer that he had to go to the bathroom approximately 12 times during the day and 7 times at night, that he did not wear absorbent material, and that he needed to be near a bathroom or he would have an accident. When examined by VA in March 2009, the Veteran denied any change in his symptoms since April 2008. He complained of fatigue, lethargy, and weakness. Along with his prostate cancer, the Veteran complained of other medical problems, including an inability to be in the sun, anger, forgetfulness, extreme fatigue, intermittent suicidal thoughts, "heat spells," and "bad nerves." His urinary symptoms included urgency and dribbling. He did not have a weak or inconsistent stream, hesitancy/difficulty starting a stream, dysuria, hematuria, or urethral discharge. He reported leakage with stress incontinence. He chose not to wear a pad and usually wet himself once a week. Wearing of absorbent materials was not required. There was a daytime voiding frequency of less than one hour and nocturia 5 or more times a night. Examination of the bladder and urethra was normal. The Veteran reported that his daily activities were unaffected by his prostate cancer as long as he stayed close to a bathroom. The Veteran indicated that he had retired from work as a construction worker/farmer in 2001 because of his medical condition. The diagnosis was prostate cancer by history with residual erectile dysfunction. The Veteran testified at his Travel Board hearing in July 2013 that his residuals from cancer included going to the bathroom at least once an hour during the day and 6-7 times at night, having dribbling when he stopped going to the bathroom, and having some, but not much, pain. The Veteran also testified about problems with other disabilities, such as of the kidneys and heart. In May 2015, the Veteran's attorney submitted a vocational assessment from Ms. E.H., a vocational rehabilitation consultant. She conducted a telephone interview with the Veteran and reviewed his VA claims file. The Veteran had an 8th grade education and since his separation from active service, he had worked as a carpenter on his family's cattle farm. Ms. E.H. explained that the Veteran's main problem in relation to employment was his need to urinate frequently. She cited the Veteran's April 2008 VA examination that indicated his need to urinate on a frequent basis during the day and at night. The Veteran's interrupted sleep led to fatigue, lethargy, and anger management issues. She elaborated that the Veteran's frequency of urination, more than once per hour, would interfere with productivity in any type of work. His work in construction and farming would not offer ready access to a bathroom. Additionally, construction and farming require tasks that cannot be easily interrupted. His occupational skills did not transfer to alternate work and he was only qualified for unskilled work. Ms. E.H. concluded that the Veteran's need to leave a work task every hour would adversely impact his productivity and attention to tasks would be adversely affected. An employer would not tolerate the time off-task and it was very unlikely that the Veteran could maintain any type of sustained, competitive employment under such circumstances. In December 2016, the VA Director of Compensation Service found that the evidence was against a finding that the Veteran's employment ended due to the status post residuals of prostate cancer. The Veteran stopped working in 1986 due to his non-service-connected back disability. He also reported that his employment ended in 1986, 1990, and 2001. She concluded that there was no evidence that Social Security Administration benefits were awarded due to his service-connected status post residuals of prostate cancer. Therefore, the record did not show that the Veteran was unable to secure and follow substantially gainful occupation due to his service-connected disabilities. In June 2017, the Veteran underwent a vocational assessment from Dr. L.L., a Certified Rehabilitation Counselor. She reviewed the Veteran's claims folder and conducted a telephone interview with the Veteran. Dr. L.L. found that it was more likely than not that the Veteran's service-connected residuals from prostate cancer prevented him from securing and following a substantially gainful occupation. She explained that the Veteran's daily incontinence would result in excessive and unacceptable work site, such that he would be unable to sustain even a sedentary job. Dr. L.L. indicated that even if the Veteran were to wear absorbent undergarments, he would have to frequently leave the work station to change, which combined with the fatigue from his nocturia, would interfere with his ability to stay on task and be productive at a competitive level. She concluded that her opinion was based on a review of the file, interview with the Veteran, and her 30 years experience providing rehabilitation assessment, job analyses, and job placement for people with disabilities in post-acute residential rehabilitation. As noted above, the Veteran has completed the eighth grade and last worked full-time no later than 2001 as a self-employed farmer and carpenter. When evaluated in April 2008, the Veteran's prostate disability was reported to have a moderate effect on daily activities. When examined by VA in March 2009, the Veteran denied any change in his symptoms since the April 2008 evaluation. He reported that his daily activities were unaffected by his prostate cancer as long as he stayed close to a bathroom. He testified at his personal hearing in July 2013 that he had to go to the bathroom about every hour during the day. The Board finds that the vocational assessments in May 2015 and June 2017 are probative regarding whether the Veteran's service-connected residuals of prostate cancer preclude substantially gainful employment. These evaluations were prepared by professionals with great skill in determining the effects of disabilities on employment. The Board acknowledges the negative December 2016 decision rendered by the Director of Compensation Services. However, the December 2016 decision is predicated on a finding that the Veteran did not first become unemployable due to his service-connected disability. The weight of the evidence shows that the Veteran's service-connected residuals of prostate cancer prevent him from engaging in substantially gainful employment in an unprotected workplace. Based upon the forgoing, a TDIU is granted. 38 C.F.R. § 4.16(b). ORDER Entitlement to a TDIU, on an extraschedular basis under 38 C.F.R. § 4.16(b), is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs