Citation Nr: 1808332 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-11 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating based on individual unemployment (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2012 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota, which denied the benefit sought on appeal. In July 2015, following the Veteran's November 2013 hearing, the Board denied the claim for TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2016 Memorandum Decision, the Court set aside the July 2015 Board decision and remanded the issue of entitlement to TDIU for further development and readjudication consistent with the Court's Decision. The Board then remanded the issue for further development in June 2017. FINDINGS OF FACT 1. The Veteran is service connected for anxiety disorder and depressive disorder, prostate cancer, and erectile dysfunction. His combined disability rating during this appeal is 70 percent. 2. The Veteran completed three years of college and has not worked since retiring from the U.S. Postal Service after working there for 20 years. 3. The Veteran's service-connected disabilities, particularly his psychiatric disability and voiding dysfunction caused by his prostate cancer, preclude him from substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board is granting the benefit sought on appeal, no discussion of VA's duties to notify and assist is necessary. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2017). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). 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). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted anxiety disorder and depressive disorder, prostate cancer, and erectile dysfunction. His combined disability rating during this appeal is 70 percent. He has met the schedular criteria for consideration under 38 C.F.R. § 4.16(a). 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, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The Veteran is currently service connected for an anxiety disorder and depressive disorder, prostate cancer, and erectile dysfunction. The Veteran contends his anxiety disorder, depressive disorder, and residuals of prostate cancer render him unemployable. A Veteran's Application for Program of Education or Training from August 1969 shows the Veteran graduated from high school and attended college for 3 years for business administration from 1963-1966 prior to his military service. Records show the Veteran was enrolled full time in the spring of 1978 ,but he did not receive any college credits. In 2001 Social Security Administration records the Veteran reported his longest job was that of a mail handler where he loaded and unloaded trucks. The Veteran worked for 20 years as a mail handler from 1980 to 2000 according to the October 2011 VA Form 21-8940. The Veteran was afforded a VA mental disorders examination in November 2011. The examiner determined the Veteran displayed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted symptoms of depressed mood; anxiety; mild memory loss, such as forgetting names, directions or recent events; and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported he feels uptight around other people and does not like to take orders from others which interact with his ability to interact smoothly and harmoniously with others in work-like settings. The examiner also noted the Veteran's problems with urinary urgency due to prostate cancer were more of problem in regards to gainful employment. The Veteran was afforded a VA general medical examination in December 2011. The Veteran displayed voiding dysfunction which caused urinary leakage, but it did not require the wearing of absorbent material. The Veteran's urinary frequency was noted as daytime intervals of 1 to 2 hours and nighttime awakening to void 5 or more times. The examiner determined the Veteran was employable. The examiner noted the Veteran's prostate cancer's side effects included urinary frequency, urgency and nocturia; all issues the examiner noted could be improved with less fluid consumption. Work limitations required restroom accessibility due to urinary issues. A VA general medical examination in December 2012 determined the Veteran could continue in a similar capacity as his mail handler job which required heavy lifting if he wore absorbent material. The examiner also determined the Veteran would be able to perform substantial gainful employment in a sedentary environment even though the Veteran's "urinary frequency could cause problems with working." A VA mental disorders examination in Jan 2013 determined the Veteran displayed total occupation and social impairment with symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory; and a flattened effect. The examiner also noted the Veteran's employability was impaired by his psychiatric condition but did not think it was a serious problem because the Veteran was retired. The Veteran testified before the Board in November 2013. The Veteran reported short term memory loss which affected his ability to remember events that happened the day prior; and he said he had to urinate 17 to 18 times a day. The Veteran also provided three different third party lay testimonies in November 2013; and all three parties testified that the Veteran was constantly going to the restroom. The Veteran was afforded an additional VA prostate examination in January 2015. The examiner noted the Veteran's urinary leakage required absorbent material which needed to be changed less than twice per day. The examiner found the employee employable in both sedentary and light labor work. Moderate and heavy labor employment would likely aggravate the Veteran's symptoms. The Veteran was also afforded a VA mental examination in January 2015; however, the Court determined the January 2015 was inadequate. The Board finds that entitlement to TDIU is supported by the evidence. The Board observes that the evidence does not include a medical opinion that finds the Veteran unemployable due to his service-connected disabilities. However, the question of employability is ultimately one for the finder of fact, and is not medical in nature. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has appropriately weighed the evidence in regards to the Veteran's service-connected disabilities in conjunction with his level education and work history. Additionally, although the Board acknowledges the Veteran's nonservice-connected disabilities have an effect on the Veteran's employability, the Board finds his service-connected disabilities, in and of themselves, preclude the Veteran from substantially gainful employment. The Veteran has 20 years of experience in heavy manual labor, and his urinary frequency due to prostate cancer would preclude him from heavy manual labor employment. The VA examiners provided opinions which support this finding. Additionally, the Veteran's urinary frequency requires quick access to restrooms which is not a reasonable assumption for positions which require manual labor. Additionally, for manual labor, the Veteran could not be expected to limit his fluid intake as expressed by the December 2011 examiner. The examiners did express confidence in the Veteran's ability to work in sedentary work environments. The Veteran does have a total of 3 years of college education he gained during the years of 1963, 1964, 1965, 1966, and 1978. However, the Veteran's employment history show the Veteran's substantial work experience involved heavy manual labor as a mail handler between 1980 and 2000. The Veteran's employment history does not support finding the Veteran has the skills to secure substantially gainful employment in a sedentary environment. Although the Veteran does have some college education, the majority of the Veteran' college education occurred over 40 years prior to his claim for TDIU. Currently, sedentary employment usually requires a level of computer skills that the Veteran's employment history, which concluded nearly two decades ago, does not show he has acquired. Additionally, the Veteran's psychiatric symptoms would impair his ability to perform adequately in a sedentary environment. The Veteran's symptoms included memory loss which affects his ability to remember directions. The Veteran is reluctant to take orders due to his psychiatric disabilities; and the January 2013 VA examiner determined the Veteran showed total occupational and social impairment. Based on the totality of the Veteran's service-connected psychiatric disability and prostate cancer residuals and his educational and employment background, and after resolving all doubt in his favor, TDIU is warranted; the claim is thus granted in full. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs