Citation Nr: 20053692 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 19-34 094 DATE: August 13, 2020 ORDER Entitlement to restoration of the 100 percent rating for prostate cancer, effective June 1, 2018, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record at the time of the March 2018 rating decision reflected a material improvement in the Veteran’s service-connected prostate cancer, including cessation of radiation treatment and hormone injections, and no recurrence of the Veteran’s prostate cancer, which resulted in an improvement in his ability to function under the ordinary conditions of life and work. 2. The Veteran’s service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for restoration of the 100 percent disability rating for prostate cancer, effective June 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5112, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.115b, Diagnostic Code 7528. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) from A March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which reduced the evaluation of prostate cancer from 100 percent disabling to 60 percent, effective June 1, 2018. Entitlement to restoration of the 100 percent rating for prostate cancer, effective June 1, 2018, is denied. Initially, the Board recognizes that the Veteran appears to contend that his prostate cancer is static in nature or, alternatively, that he should not have to be reevaluated due to his age, and therefore, a reduction in his disability rating was improper. Specifically, the Veteran has cited to 38 C.F.R. § 3.327 and the M21, which, in pertinent part, indicates that a future examination is not established when the disability is static or permanent with no likelihood of improvement or the Veteran is over 55 years of age (except under unusual circumstances). Notably, the provision of the M21 cited by the Veteran references 38 C.F.R. § 3.327 for determining whether a new examination is necessary. Here, the Board notes that when the Veteran was initially granted service connection in April 2014, he was informed that this disability was not permanent in nature and that a future examination would be scheduled to assess the severity of his disability. See 38 C.F.R. § 3.327. Additionally, Diagnostic Code 7528, providing the rating criteria for malignant neoplasms of the genitourinary system, notes that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 105(e). If there has been no local recurrence or metastasis, the disability will be rated on residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. Thus, the rating criteria considers that improvement in the disability is possible and is, therefore, not static or permanent with no likelihood of improvement. See 38 C.F.R. §§ 3.327(b)(2)(iv), 4.115b, Diagnostic Code 7528. Additionally, the Veteran’s scheduled reexamination was performed in accordance with the specific requirements of 38 C.F.R. § 4.115b, governing the evaluation of prostate cancer claims where there is a question as to whether the condition has improved upon treatment; the general provisions of section 3.327(b)(2)(iv) do not supersede these requirements or render them invalid. 38 C.F.R. § 3.327(a). In fact, pursuant to section 3.327(a), nothing in section 3.327(b) is to be construed as limiting the VA’s ability to request reexamination to ensure that a disability is accurately rated. 38 C.F.R. § 3.327(a). As noted above, the regulations require reexamination of the Veteran’s prostate cancer six months after the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Thus, to the extent that the Veteran contends that reexamination was not appropriate due to his age, the Board finds that the provisions in 38 C.F.R. § 3.327(b)(2)(iv), establishing when no periodic examination will be scheduled due to age, are not for application. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a veteran’s disability rating is reduced by a Regional Office (RO) without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c), however, specify that the provisions of 38 C.F.R. § 3.344(a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Further, under the provisions of 38 C.F.R. § 3.105, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). Here, in an April 2014 rating decision, the RO granted a 100 percent disability rating for prostate cancer, effective January 30, 2014. The Veteran filed a claim for an earlier effective date for the grant of service connection for his prostate cancer, and, in an October 2014 rating decision, the RO, finding clear and unmistakable error with its prior evaluation, granted a 100 percent disability rating back to August 19, 2013. The Veteran was afforded a VA examination, via telephone interview, for his prostate cancer in April 2015. The VA examination notes, in pertinent part, that the Veteran received a diagnosis of prostate cancer in October 2013; radiation treatment was initiated in January 2014 and had since been completed. The Veteran continued to receive Lupron injections, an androgen deprivation therapy (hormonal therapy), which had been prescribed every three months over the past year by the Veteran’s urologist. The treatment was scheduled to continue through May 2015. The examination notes that the Veteran’s prostate cancer was active. The examination notes that the Veteran also had a voiding dysfunction, with increased urinary frequency, but no renal dysfunction. In an April 2015 rating decision, the RO continued the Veteran’s 100 percent disability rating. In December 2015, the Veteran was afforded another VA examination via telephone interview, which indicates that the Veteran had a history of adenocarcinoma, diagnosed in 2013. He was treated with external radiation, initiated in January 2014 and completed in May 2014. The Veteran was also treated with Lupron hormonal injections that completed in May 2015 per the Veteran’s report. The Veteran denied any further treatment for his prostate cancer since his last VA examination and reported that his most recent PSA level, performed in November 2015, was almost undetectable. The Veteran indicated that he was prescribed Viagra for his residual erectile dysfunction but had not yet tried this treatment. The examiner indicated that the Veteran’s prostate cancer was in remission. The examination notes that the Veteran had a voiding dysfunction, with increased urinary frequency, but no renal dysfunction. In a January 2016 rating decision, the Veteran was informed of a proposed reduction of the disability rating for prostate cancer from 100 percent to 60 percent, rating his disability based on voiding dysfunction, which would result in a decreased combined disability rating. He was notified of the material facts and reasons for the proposed reduction in September 2016 and notified that he had 60 days to respond, and he had 30 days to request a predetermination hearing. Accordingly, the Board finds the notification requirements of 38 C.F.R. § 3.105 were met. The Veteran responded to the notice of the proposed reduction in November 2016, indicating that he had a medical reevaluation for his service-connected disability scheduled later that month and the December 2015 examination was therefore not based on a full medical record, and he anticipated receiving evidence to show that a reduction was inappropriate. However, no medical records were received at this time, and in a March 2018 rating decision, the RO reduced the Veteran’s rating for prostate cancer to 60 percent disabling, effective June 1, 2018. Accordingly, the greater protections set forth in 38 C.F.R. § 3.344 do not apply in this case because the 100 percent disability rating was not in effect for five or more years at the time of the reduction. Therefore, the issue before the Board is whether the prostate cancer improved as of the March 2018 rating decision. The Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In addition, it must be determined that an improvement in a disability had actually occurred; and that such improvement actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). The Board must consider the entire medical history and apply the preponderance of the evidence standard in its determination. Schafrath, supra; Brown, supra. After reviewing the evidence of record, the Board finds that the reduction at issue was proper. At the time of the March 2018 rating decision, the evidence established that the Veteran’s service-connected prostate cancer had undergone improvement warranting a rating reduction from 100 percent to 60 percent, with this new rating based on his voiding dysfunction. In that regard, at the time of the March 2018 rating decision, the record showed that the Veteran had been treated with external radiation, which was completed in May 2014, and with Lupron hormonal injections, which were completed May 2015, and at the time of his December 2015 VA examination, there had been no recurrence or metastasis of the prostate cancer. As set forth above, Diagnostic Code 7528 provides that, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, if examination after six months shows no local reoccurrence or metastasis, the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. The December 2015 VA examination, conducted at least six months after his Lupron hormonal injections were completed, reflects that the Veteran had a residual voiding dysfunction, but no renal dysfunction, and his prostate cancer, which was in remission, had required no further treatment. Accordingly, the RO properly rated the Veteran’s disability on voiding dysfunction residuals. Moreover, it is clear that this improvement has been sustained, in light of the fact that there has been no recurrence of the prostate cancer. Based on the foregoing, the Board finds that the record includes no evidence of local reoccurrence or metastasis and the Veteran did not have any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure after May 2015; the Veteran and his attorney do not contend otherwise. Thus, the rating reduction from 100 percent to 60 percent, effective June 1, 2018, was proper, and the Veteran’s claim for restoration of the 100 percent disability rating is denied. The Board has additionally considered the Veteran’s contention that the rating reduction was improper because it was based on the December 2015 VA examination, which he claims was unscheduled, and did not consider the Veteran’s follow-up visit with his treating physician. However, the Board notes that the Veteran was notified at the time of his initial 100 percent rating that he would need to undergo a mandatory VA examination six months after the cessation of his treatment, as noted above; the record reflects that an examination was scheduled on December 23, 2015, and the Veteran attended the examination via telephone on December 29, 2015. Therefore, the Board finds that the examination was indeed scheduled. To the extent that the Veteran claims that the rating decision that reduced his disability rating was not based on a review of his medical records, the Board notes that the Veteran did not provide any of these private medical records for review, despite indicating that he would submit these records, nor did he otherwise identify the provider or the location of his treatment. Additionally, the rating decision that reduced his disability rating was not issued until March 2018, more than one year after the proposed reduction, notifying the Veteran that he could submit evidence indicating why the reduction should not be made. The Board notes that the VA’s duty to assist extends only to obtaining relevant private records that the Veteran adequately identifies, and it remains the Veteran’s responsibility to provide evidence, including private treatment record, to support his claim. See 38 U.S.C. § 5103A(b)(1); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that such evidence was neither adequately identified nor was it identified as providing a reasonable possibility of substantiating the claim, as there was no subsequent correspondence indicating that the Veteran even attended the reevaluation between the time of his proposed reduction and the March 2018 rating decision that reduced his evaluation. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Therefore, the Board finds that VA’s duty to assist has been satisfied with respect to these records, and the Veteran’s reduction was therefore based upon review of the entire available recorded history of his condition. Finally, the Board acknowledges that the Veteran’s attorney, in the VA Form 9, has attempted to recharacterize the issue on appeal to include entitlement to an increased evaluation for prostate cancer; however, in this regard, the Board notes the Veteran’s Notice of Disagreement (NOD), received in April 2018, specifically notes his contention with the reduction of his rating. Moreover, the Veteran’s attorney, in August 2018, submitted an amended NOD to include the issue of a TDIU; notably, however, the amended NOD explicitly indicated that the Veteran “disagrees with the propriety of the reduction in rating for his prostate cancer from 100-percent to 60-percent effective June 1, 2018.” Thus, the issue of an increased evaluation for his prostate cancer residuals is not currently on appeal. To the extent that the Veteran wishes to pursue a claim for an increased evaluation in excess of the currently assigned 60 percent rating for the residuals of his prostate cancer, he may file such a claim with his local VA Regional Office. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. As noted above, the Veteran, through his attorney, has indicated that he is entitled to a TDIU as a result of his prostate cancer residuals. In this regard, the Veteran’s attorney, in an April 2020 brief, has indicated that the Veteran had not worked in a gainful capacity since February 16, 2017, and his earnings in 2017 were only marginal. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, 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. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). As noted above, the Veteran was in receipt of a 100 percent disability rating prior to June 1, 2018, and a 60 percent disability rating thereafter for his prostate cancer; throughout the period on appeal, he has also been in receipt of a noncompensable evaluation for his erectile dysfunction, as associated with his prostate cancer. Notably, the Veteran has additionally been in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114(k) for loss of use of a creative organ, effective August 2013. His combined rating is 100 percent prior to June 2018 and 60 percent from June 2018. Therefore, for the period on appeal, the Veteran met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The Board acknowledges that the Veteran, through his attorney, has argued that a TDIU is warranted back to at least 2017 because the Veteran has not been employed since February 2017 and that his employment throughout 2017 was marginal. In this regard, the Board notes that in some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, the Court held that a TDIU rating could be warranted in addition to a schedular 100 percent evaluation where the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect. Bradley, 22 Vet. App. at 293. In this case, the Veteran is service connected for his prostate cancer, which is rated at 100 percent disabling, and erectile dysfunction, with a noncompensable evaluation, prior to June 1, 2018. Here, the evidence does not show that the Veteran is unemployable due to his erectile dysfunction; nor does the evidence reflect that the Veteran was housebound for the period prior to June 1, 2018, and the Veteran does not contend otherwise. Additionally, as the Veteran’s erectile dysfunction is not rated as 60 percent or more disabling, rendering TDIU moot would not impact the Veteran’s ability to receive SMC. Therefore, Bradley is distinguishable from the instant case, and the award of a 100 percent schedular evaluation for the period prior to June 1, 2018, does indeed render a TDIU moot for this period. Thus, the issue then becomes whether the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities from June 1, 2018. Throughout the period on appeal, the Veteran’s private prostate cancer treatment records reflect complaints of urinary frequency; nocturia, occurring between one and three times per night; and some post-void leakage, although he empties completely. He also had erectile dysfunction for which he received intermittent treatment. A VA Form 21-8940, Application for Increased Compensation Based on Unemployability, was received in January 2019. The document notes that the Veteran’s prostate cancer affected his full-time employment beginning in March 2014, and he became too disabled to work due to his service-connected prostate cancer on February 16, 2017. The Veteran indicated that he worked full time in Human Resources from October 2003 to February 16, 2017, and he lost one to two months of work from illness. The Veteran completed four years of college education and obtained a master’s degree in Public Administration. An April 2019 affidavit from the Veteran indicates that he last worked February 16, 2017 as a Human Resources manager and has been unable to go back to work since then due to his service-connected prostate cancer residuals. The Veteran reported that his job had involved training people and assigning them to various nonprofit organizations in the area. He indicated that he had to participate in interviews, typically lasting more than two hours, and conduct in-person monitoring at the various facilities, which involved local travel to unfamiliar job sites. The Veteran indicated that, due to his prostate cancer, he had to urinate at least once per hour, which meant that he had to excuse himself during these interviews to use the restroom and keep a bottle in his car in case of emergencies. Additionally, the Veteran reported that he woke up every hour during the night to use the restroom, which resulted in daytime fatigue; his head was often foggy, which made it difficult to do his required tasks. The Veteran indicates that, as a supervisor, he was able to give himself accommodations; he scheduled his interview appointments and work site visits to account for his exhaustion and frequent need to use the restroom. However, he indicated that, in early 2017, he was having more difficulty pushing through his exhaustion and frequent urination to complete his duties and was planning on leaving the position, but in February 2017, the county lost a federal grant and his program was closed. The Veteran reported that he knew he would be unable to provide himself the accommodations if he started a new job elsewhere, and without accommodations, he would have no chance of keeping a job. He reports that since February 2017, his symptoms have not improved; he must use the restroom once every hour, he wakes up exhausted every morning, and remains fatigued throughout the day. He requires breaks to complete small chores around the house, including laying down two to three times per day and resting for an hour. The Veteran indicated that he was unable to secure and follow substantially gainful employment as a result of his service-connected prostate cancer. A VA Form 21-4192, received from the Veteran’s last employer in November 2019, notes that the Veteran worked full time from January 1997 to February 2017, as an age resource specialist. From January 13, 2017 to February 1, 2017, he was not working and received FMLA. The form notes that there were not any known concessions made for the Veteran’s employment, and he was ultimately laid off due to loss of grant funding. A November 2019 private treatment record for coronary artery disease notes that the Veteran endorsed fatigue; his systems were negative for polyuria, dysuria, or hematuria. At his November 2019 VA examination, the Veteran denied any dysuria, hematuria or recurrent urinary tract infections. He endorsed urinary frequency and indicated that he used absorbent material for incontinence only when he is away from home for extended periods of time. The Veteran reported he was fatigued and required frequent rest periods. The Veteran was independent with driving and performing activities of daily living; he was able to do yard work with frequent rest periods. He had daytime voiding intervals of less than one hour, and nighttime awakening to void three to four times. The Veteran had erectile dysfunction associated with his prostate cancer. The examiner opined that the Veteran’s prostate cancer did not impact his ability to work. A November 2019 VA addendum opinion indicates that the Veteran’s prostate cancer did not impact his ability to maintain and obtain gainful employment with accommodations to have close access to a restroom. A February 2020 private vocational assessment indicates that the Veteran reported that he experienced urinary leakage, incontinence, polyuria, and sleep impairment with chronic fatigue since at least June 2018 to the present. The evaluation notes that the Veteran experienced daily urinary leakage; he must use absorbent materials, which require changing several times a day, and requires that he “map out” the location of restrooms along his route when he goes out because he must use the restroom at least once every hour during the daytime. The Veteran reported that the need to constantly locate restrooms causes him stress, resulting in a lack of concentration and focus. Additionally, due to his need to use the restroom every hour on average during the night, he experienced interrupted sleep resulting in chronic daytime fatigue. Thus, the evaluator opined that the Veteran’s sleep impairment and daytime somnolence significantly impacted his stamina and ability to complete typical household chores and other activities of daily living. The vocational assessment notes that the Veteran completed high school and obtained a bachelor’s degree in Economics and a master’s degree in Public Administration. The Veteran was employed in Human Resources as a Program Supervisor from October 2003 to February 2017, when the program he supervised with dissolved and he retired. The evaluator indicated that the Veteran was able to adjust his schedule and work tasks due to his position as a supervisor; however, although the flexibility allowed him to maintain employment until February 2017, his need to frequently use the restroom made it hard to get things done on time, and due to his exhaustion, it was difficult to recall intricate details that his job required. The evaluator opined that it is at least as likely as not thar the Veteran has been unable to secure or follow substantially gainful employment since at least June 2018 to present due to his prostate cancer residuals, including polyuria, frequent urinary leakage and incontinence, the need for frequent and unscheduled restroom breaks, nocturia with subsequent sleep impairment and chronic daytime fatigue, the inability to maintain concentration and focus, and the inability to maintain adequate pace and productivity. The evaluator considered the opinions of the December 2015 and November 2019 VA examiners and indicated that, due to the Veteran’s need for excessive and unpredictable restroom breaks, he would be rendered incapable of maintaining concentration and remaining on task for even two hours at one time; additionally, his need for unscheduled breaks at least every hour and the need to leave work to tend to hygiene and change soiled clothing would negatively impact his productivity, and his fatigue and need for prolonged breaks to rest would further preclude the Veteran from being productive and maintaining adequate pace. Finally, the evaluator indicated that the sanitary and safety concern associated with urinary leakage and incontinence would not be tolerated in any employment setting. Thus, although the Veteran acquired skills through his past employment as a human resources supervisor and educational achievements, he at least as likely as not would be unable to apply these skills to any employment due to his limitations in maintaining persistence and pace or to learn any new skill set due to his prostate cancer residuals. Upon review of all of the evidence of record, both lay and medical, the Board finds that entitlement to a TDIU is not warranted for the period from June 1, 2018. The Board has acknowledged and considered the Veteran’s lay statements addressing his employability. The Board notes that the Veteran is competent to report the subjective symptoms and functional limitations he experiences regarding his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, the Board emphasizes that the Veteran’s description of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. After considering the opinions of record, the Board finds that the probative medical evidence of record does not indicate that the Veteran is unable to secure and follow substantially gainful employment due solely to his service-connected prostate cancer residuals. Although the medical opinions of record have concluded that there is some impact on the Veteran’s ability to work, including his need to be near a restroom, there is no probative opinion of record which indicates that he is unable to work due to his service-connected prostate cancer residuals. The Board has considered the private vocational assessment, which indicates that the Veteran has been unable to secure or follow substantially gainful employment since June 2018 due to his prostate cancer residuals. In this regard, the Board notes that the assessment indicates that this opinion was supported entirely based on the medical evidence of record, and only further supported by the Veteran’s lay evidence. In this regard, the Board finds it notable that the private evaluator specifically listed his prostate cancer residuals as including polyuria; however, there is no indication anywhere else in the record that the Veteran had polyuria at any time during the period on appeal. Additionally, the private opinion was based on the Veteran’s reports of daily urinary leakage which the evaluator indicated, not only required the use of absorbent materials that needed to be changed several times a day, but also required the Veteran to make unscheduled trips home to change soiled clothes. Again, other than this private vocational assessment, there is no evidence, lay or medical, within the record which indicates that the Veteran missed work because he had to tend to his hygiene or change soiled clothing. Finally, the private evaluator relied on the Veteran’s reports of waking to void every hour during the night in opining that this resulted in daytime fatigue with associated problems concentrating, remembering, and focusing, which, as will be discussed below, the Board does not find to be credible evidence. Thus, for these reasons, the Board finds that the private opinion is afforded no probative value. The Board acknowledges the Veteran’s reports that it was only because of his role as a supervisor that he was able to work as long as he did; he had the ability to schedule his day, accounting for his fatigue and need for frequent restroom breaks, and he would not be able to find a new job that allowed this same level of flexibility. However, given that the Veteran has extensive experience working in human resources in a supervisor capacity and has also obtained a bachelor’s degree and master’s degree, it is unclear to the Board why the Veteran believes he would not be able to obtain another position with a managerial or supervisory capacity as he has neither indicated that he no longer qualified for such employment nor that he had attempted to seek subsequent employment. Thus, in light of the Veteran’s occupational and educational background, the Board finds that the Veteran would be capable of securing and following a supervisory role similar to his previous role in human resources. Nevertheless, the Board has also considered the Veteran’s reports that exhaustion and daytime fatigue have resulted in problems concentrating, remembering, and the need for breaks and periods of rest. With regard to his reports of exhaustion requiring him to lie down and rest, the Board notes that the Veteran indicated that this occurred with some level of physical exertion, such as household chores or yardwork. There is no indication in the record that a human resources supervisor or similar occupation would require any type of physical exertion. Rather, the evidence reflects that, in his role as a human resources supervisor, the Veteran conducted interviews with people and occasionally drove to local sites to conduct in-person monitoring of participants. Additionally, with regard to daytime fatigue due to nocturia, the Board has considered the Veteran’s April 2019 affidavit, noting that he woke every hour to use the restroom at night; however, the Board finds that the Veteran’s statement regarding this frequency is inconsistent with the other evidence of record and therefore not credible. In this regard, the Veteran’s private treatment records for his prostate cancer reflect that the Veteran reported waking to void as little as once per night and as much as three times per night, and the November 2019 VA examination indicates that the Veteran reported that he woke three to four times per night. Thus, the Board finds that the Veteran’s lay statements that he woke once per hour during the night to void are inconsistent with the reports and findings regarding nocturia noted in his medical records and are therefore not credible in this regard; the Board affords these statements no probative value. Thus, the Board does not find that the Veteran’s exhaustion and fatigue prevent him from securing or following substantially gainful employment, particularly in light of his occupational and educational background as noted above. The Board acknowledges that the Veteran’s prostate cancer residuals included erectile dysfunction, urinary frequency, some postvoid leakage, and nocturia, which result in frequent need of a restroom and may result in some daytime fatigue; however, the Board finds that these symptoms have been adequately considered under his 60 percent disability rating for the period from June 1, 2018. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Based on the foregoing, the Board finds that entitlement to a TDIU is not warranted for the period from June 1, 2018. The Board finds that the symptoms associated with the service-connected prostate cancer are appropriately compensated via the currently assigned ratings. While the Board does not doubt that the Veteran’s service-connected prostate cancer residuals have some impact on his employability, there is no evidence that this disability, without more, would prevent him from obtaining and maintaining substantially gainful employment in accordance with his background and education level. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim for TDIU must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.