Citation Nr: 21005226 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 18-37 361 DATE: January 29, 2021 ORDER Effective from June 1, 2015, a total disability based on individual unemployability (TDIU) is granted.   FINDING OF FACT Effective June 1, 2015, the Veteran has been precluded from securing or following substantially gainful employment. CONCLUSION OF LAW From June 1, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to May 1967. The case is on appeal from a June 2017 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A TDIU prior to November 21, 2018. Legal Criteria A total disability rating for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more 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. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and; • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If the percentage requirements of 38 C.F.R. § 4.16(a) are not met, then a TDIU may still be granted on an extraschedular basis in cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). However, the Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Analysis The Veteran was granted schedular TDIU from November 21, 2018 under 38 C.F.R. § 4.16(a). However, he seeks an earlier award of TDIU on an extraschedular basis, indicating that the combined severity of his conditions is underrated and do not reflect his true loss of functional ability to maintain gainful employment prior to November 21, 2018. See January 2021 Appellate Brief. The Veteran submitted two separate VA Form 21-8940 Applications for Increased Compensation Based on Unemployability. The Veteran indicated that he has not worked full-time as a driver since March 2012 due to service-connected disabilities, to include residuals of prostate cancer. Medical records indicate the Veteran was diagnosed with prostate cancer in September 2012. The claims file includes records from the Social Security Administration (SSA) indicating that the Veteran has been receiving disability since March 2001 due to a back disability. It also indicates that that since 1986 the Veteran worked as a truck driver and deliveryman, and that the Veteran has a high school education. Treatment records detail the Veteran’s continued symptoms from residuals of prostate cancer following remission. At a July 2015 VA examination, it was noted that he uses diapers when he is on trips, in the car, and restaurants, with voiding intervals between 1 and 2 hours, and nighttime awakening to void 3 to 4 times. The examiner noted that the Veteran reported blood in his urine about once a week. In a November 2015 medical CAPRI document, it was noted that the Veteran had loose stool and difficulty controlling his bowels, and experienced hematuria. A May 2017 VA examination found that the Veteran urinates seven to eight times during the day (approximately every two hours), and about four times every night. The Veteran described his condition as “If someone is in the bathroom, I’m in trouble. I empty my bladder, and after I leave the bathroom, I have to go back again. I stand there for a while and more comes out.” The VA examiner indicated that the functional impact included needing to be near a bathroom. By the time of his November 2018 VA examination, it was noted that he has diarrhea up to 3 times per day, has undergone 60 cycles of hyperbaric oxygen chamber treatment for bowel and bladder dysfunction, and still complains of urinary urgency, hesitancy, drippage and leakage. In February 2016 correspondence, the Veteran stated that he no longer has the ability to work full-time or part-time due to fear of a bowel incident, and “even with a pamper it is still a mess.” He also reported being confined to his room from embarrassment and the danger of having an accident in public, and that he “can no longer work because I am afraid of having a bowel movement when I am out of the house and have no control over.” See November 2016 correspondence. In March 2020, the Board referred entitlement to a TDIU prior to November 21, 2018 to the Director of VA’s Compensation Service for extraschedular consideration. Following an RO recommendation that denial of TDIU prior to November 2018 be confirmed and continued, the Director determined that the overall evidence fails to support that any of his service-connected disabilities, or a combination of the effects of those disabilities, prevent employment. The Board finds that the Veteran’s service-connected residuals of prostate cancer and radiation proctitis preclude him from securing or following a substantially gainful occupation, when considering his education and work history. Based on the evidence submitted, the Veteran’s service-connected disabilities are of such nature and severity as to preclude substantially gainful employment from June 1, 2015. The Board notes the Veteran has a high school education, and worked as a truck driver or deliveryman for the 25 years prior to leaving the workforce due to his diagnosis and treatment for prostate cancer in 2012. The record indicates that since the evaluation for prostate cancer was reduced from 100 percent to 40 percent on June 1, 2015, he has had difficulty controlling his loose bowel movements, must urinate every 1 to 2 hours, and requires diapers while in the car and on trips. It is also noted that the May 2017 VA examiner found the functional impact includes needing to be near a bathroom. It is apparent that these symptoms associated with his service-connected disabilities exceed being “bothersome” to the Veteran, as described by the Director in her October 2020 determination when denying extraschedular TDIU. They would prevent him from effectively functioning as a driver, his only occupation since 1986. (Continued on the next page)   The Board has also considered whether other service-connected disabilities may warrant TDIU prior to June 1, 2015, while the Veteran was rated at 100 percent disabling for active prostate cancer. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding a claim for a TDIU is potentially not moot even when a schedular 100 percent rating has been granted). However, as it has not been argued that the Veteran’s other service-connected disabilities of tinnitus, hearing loss, and erectile dysfunction prevent gainful employment, and only reach a combined rating of 10 percent, the findings in Bradley are not applicable in this case, and a TDIU is not warranted for the period prior to June 1, 2015. After resolving any doubt in the Veteran’s favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating effective from June 1, 2015, as his last full-time employment as a truck driver ended in March 2012, and he was unable to return as a result of his service-connected prostate cancer and radiation proctitis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). This is so even if part of this period remains below the schedular level of 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b); Wages, 27 Vet. App. at 233. Accordingly, a TDIU is granted, effective June 1, 2015. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.