Citation Nr: 21000147 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-05 862 DATE: January 4, 2021 ORDER Entitlement to a total disability rating based on individual employability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is service connected for the following disabilities: erectile dysfunction rated as 0 percent disabling; diabetes mellitus rated as 20 percent disabling; posttraumatic stress disorder (PTSD) rated as 30 percent disabling; and prostate cancer rated as 20 percent disabling. 2. The Veteran’s service-connected disabilities do not meet the schedular criteria for assignment of a TDIU, and the evidence of record does not reflect that the Veteran has been unable to engage in substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) after an appeal of a September 2010 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). A claim for TDIU was not addressed in this rating decision; however, it was raised during the subsequent appeal of the claims for increased ratings. Pursuant to a May 2019 Joint Motion, U.S. Court of Appeals for Veterans Claims (CAVC) vacated a June 2018 Board decision, and found the Board did not provide an adequate statement of reasons and bases as to whether a claim for TDIU was raised by the record. See June 2019 Court Order. In November 2019, the Board remanded the claim for further development. Specifically, the remand found that an August 2010 genitourinary examination indicated that the Veteran retired in March 2010 based on his physical problem of prostate cancer, and thus that the issue of entitlement to a TDIU had been raised by the record and should be added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). The remand included a directive to send the Veteran a VCAA notice letter to inform him of what is needed to substantiate a TDIU claim, including working with him to obtain a detailed statement, gather evidence, and perform any additional development. In June 2020, the Board denied the claims for increased ratings for the Veteran’s prostate cancer and erectile dysfunction. Therefore, these two matters are not currently on appeal. The only remaining issue is whether the Veteran is entitled to a TDIU based on his service-connected conditions, as reflected in the September 2020 supplemental statement of the case (SSOC). Entitlement to a TDIU is denied. A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) above. The Board notes that the Veteran is service connected for: erectile dysfunction rated as 0 percent disabling; diabetes mellitus rated as 20 percent disabling; PTSD rated as 30 percent disabling; and prostate cancer rated as 20 percent disabling. See April 2018 Rating Decision Codesheet and November 2019 BVA Decision. Thus, from April 2010 the Veteran has been rated as 40 percent disabled, and from March 2012 he has been rated as 60 percent disabled. Despite this later 60 percent disabled rating, none of his service-connected conditions reached a 40 percent rating. Therefore, he does not meet the schedular criteria for assignment of a TDIU. See 38 C.F.R. § 4.16(a). However, the Board must still consider whether referral for extraschedular consideration is warranted. A review of the Veteran’s records shows that he worked as a pressman in a printing company from around 2000 until 2010 until he retired. See July 2010 VA Examination, page 1. The record is silent as to other employment. According to the Veteran’s statements during a May 2016 VA treatment entry, he retired from the printing company after he was diagnosed with prostate cancer in 2010. See January 2018 CAPRI Record, page 123; see also July 2010 VA Examination, page 1. A review of the Veteran’s medical records shows that his service-connected disabilities did not preclude him from securing and following a substantially gainful occupation. The Veteran was diagnosed with and began treatment for prostate cancer in 2009. During this time, his private physician assigned him a Karnofsky performance status of 100, meaning that the Veteran should have been able to function normally with no evidence of disease. See June 2010 Medical Treatment Record, page 13. In July 2010, the Veteran underwent a VA Examination for PTSD. During this PTSD examination, the Veteran spoke of how he would have flashbacks at work, and how despite working with other Veterans, they never discussed their experiences. He described the isolating effect of PTSD. However, despite experiencing flashbacks and isolation, he did not relate his eventual retirement from the printing industry to PTSD. See July 2010 VA Examination, page 4. Instead, the Veteran named prostate cancer as the reason he retired and became unemployed, as he could no longer physically handle the work in a print shop due to his medical condition. See July 2010 VA Examination, page 4. A subsequent August 2010 VA examination indicated that prostate cancer resulted in problems with lifting and carrying, but also indicated that the resulting effect on work should be not unemployment but rather assignment to different duties. Daytime voiding frequency was every one to two hours. See August 2010 VA Examination, page 5. During an April 2012 VA examination, the examiner noted that the Veteran visited a diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions fewer than two times per month. His diabetes was managed by restricted diet and prescribed oral hypoglycemic agent. The examiner also noted the absence of unintentional weight loss or loss of strength, and the lack of recognized diabetes mellitus complications. As a result, the examiner concluded that diabetes mellitus did not impact the Veteran’s ability to work. As a residual effect of the Veteran’s service-connected prostate cancer, the Veteran reported voiding dysfunction. See February 2017 VA Examination. However, at no point during the pendency of this claim has this voiding dysfunction required the wearing of absorbent materials or the use of an appliance. The Veteran reported needing to void every 2-3 hours, and getting up 3-4 times during the night to void. See February 2017 VA Examination, page 2; and March 2020 C&P Exam, page 3. The examiner determined that although the Veteran was experiencing increased urinary frequency and urgency, these conditions did not impact his ability to work. See January 2018 CAPRI Record, pages 22, 24. After considering the above, the Board finds that the evidence of record does not show that the Veteran is precluded from securing or following any gainful employment due to his service-connected disabilities. To this end, the Board has considered the Veteran’s statements that he retired as a result of prostate cancer and could no longer handle the work he performed as a pressman because of his prostate cancer. His prostate cancer was noted to have affected his ability to lift and carry, and resulted in a voiding dysfunction of daytime voiding interval between one and two hours, and later between two and three hours. His diabetes mellitus did not result in regulation of activities. His PTSD is rated as 30 percent, which reflects occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Board has also considered that the Veteran graduated from high school and had taken a printing course at a trade school. As indicated above, the Veteran's service-connected disabilities do limit some types of physical work, including work involving lifting and carrying. He will need employment that allows for frequent bathroom breaks, as well as breaks that allow for his occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as a result of his PTSD. However, the Veteran's service-connected disabilities have not been shown to preclude substantial gainful employment that involves fewer physical demands. There is no indication that his service-connected disabilities interfere with his ability to perform duties that are unskilled and require only a high school degree. In sum, the Board finds that the preponderance of evidence weighs against a finding that the Veteran meets the requirements for entitlement to a referral of his TDIU claim for consideration on an extraschedular basis. 38 C.F.R. §§ 4.16(a-b). Accordingly, the Board declines to refer the claim to the Director of VA Compensation Service for consideration of TDIU on an extraschedular basis. Thus, the Board finds that the preponderance of the evidence is against this claim, and it must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, Attorney-Advisor 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.