Citation Nr: 20053460 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 14-43 241 DATE: August 12, 2020 ORDER From March 1, 2014, to March 11, 2015, a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities during the rating period on appeal from March 1, 2014, to March 11, 2015. CONCLUSION OF LAW From March 1, 2014, to March 11, 2015, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1967. In May 2018, the Board remanded the claim for entitlement to a TDIU from March 1, 2014 to March 11, 2015 for referral for extraschedular consideration. Entitlement to a TDIU The Veteran asserts that he had been precluded from obtaining or maintaining substantially gainful employment during the period on appeal, specifically as a result of his service-connected prostate cancer and residuals thereof. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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. §§ 3.340, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a) (2012); 38 C.F.R. § 4.16 (b)). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: The Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Analysis From March 1, 2014 to March 11, 2015, the Veteran’s combined disability rating was only 50 percent and accordingly, he did not meet the minimum schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU in this case is on an extraschedular basis. See 38 C.F.R. § 4.16(b). The private medical evidence and Social Security Administration records show that the Veteran’s employment as a truck driver was impacted by the residuals of prostate cancer and that he was unable to maintain substantial employment as a result. According to a Disability Determination and Transmittal, the Social Security Administration (SSA) rendered the Veteran disabled as of December 2010 due to the malignant neoplasm of the prostate, in part. According to May 2012 correspondence, a private physician associated with Virtua Family Medicine indicated that the Veteran has continued to experience severe urinary incontinence since undergoing a prostatectomy and is unable to work in any capacity. Although a January 2015 VA examiner checked “no” to the question of whether the Veteran’s prostate cancer residuals impacted his ability to work, the examination report indicates that the Veteran had to use absorbent materials; his daytime voiding intervals were between 2 and 3 hours; and he awakened at night to void twice. Subsequent to the 2018 Board remand, a Decision Review Officer (DRO) in an April 2019 Memorandum, recommended that entitlement to a TDIU on extraschedular basis be granted based on lay and medical evidence reflecting that the Veteran’s urinary incontinence has impacted his ability to work as a truck driver. The DRO also noted that the Veteran is in receipt of disability benefits from the Social Security Administration for prostate cancer residuals, in part. To the contrary, in a June 2019 Memorandum, a Director of Compensation Service determined that the evidence did not support entitlement to a TDIU on an extraschedular basis. In finding so, the Director acknowledged the lay and medical evidence suggesting that the Veteran’s urinary incontinence renders him totally disabled but also noted VA medical evidence showing that the stress incontinence during remission is minimal and does not impact his ability to work. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining and obtaining gainful occupation due to his service-connected prostate cancer and residuals thereof for the rating period in question. Here, the Veteran’s sole work experience was as a truck driver, and the evidence reflects that his job was impacted by urinary leakage and frequency. The fact that the Veteran has experienced urinary symptoms since his prostatectomy is not in dispute; the medical evidence conflicts as to the actual severity of the Veteran’s urinary incontinence and urgency. The Veteran specifically maintains that he was unable to continue working as a truck driver because of his urinary symptoms. His private doctor described the incontinence as severe, while the VA examiner described it as mild. The Board thus finds that the evidence, overall, is at the very least in equipoise. Thus, with resolution of any doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU on an extraschedular basis from March 1, 2014, to March 11, 2015, is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.