Citation Nr: 21061776 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-46 780 DATE: October 5, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran's service-connected disabilities, alone, do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to May 1970, which includes combat service in the Republic of Vietnam. His awards include the Combat Infantry Badge and the Republic of Vietnam Campaign Medal with Device. This matter comes before the Board of Veterans' Appeals (Board) from a June 2017 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned 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, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" as having 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. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, 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), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Entitlement to a total disability for individual unemployability (TDIU) due to service-connected disabilities VA received the Veteran's Application for Increased Compensation Based on Unemployability in January 2017. The Veteran has been service-connected for the following disabilities: PTSD, rated as 50 percent disabling; prostate cancer residuals, rated as 60 percent disabling; tinnitus rated as 10 percent disabling, and bilateral hearing loss and erectile dysfunction, both rated as 0 percent disabling. From February 2009 to the present, the combined service-connected disability rating is 80 percent. See 38 C.F.R. §§ 4.16(a), 4.25. Therefore, the schedular percentage criteria required for a TDIU are met. 38 C.F.R. § 4.16(a). The question remaining for purposes of TDIU entitlement is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. After a review of all of the pertinent evidence discussed below, the Board disagrees that the Veteran is entitled to a TDIU. A review of the evidence reveals that the Veteran completed his high school education prior to service and a 6-month community college course in waste-water treatment after service. Private treatment records of Dr. C. S. in October 2007 reflect that the Veteran reporting losing as much as 6 pounds in a day during a tennis tournament. The December 2007 visit indicates that the Veteran had returned to work following his radical prostatectomy prior to his December 2007 office visit. The Veteran was afforded a genitourinary disability examination in June 2008. He reported urinary symptoms including weak or intermittent stream with a daytime voiding interval of greater than 3 hours and twice nightly voiding and wearing absorbent material than was changed 4 or more times per day due to urinary incontinence. He denied other residual symptoms of prostate cancer surgery. Information obtained from the Social Security Administration (SSA) reflects a May 2012 unfavorable decision on the Veteran's June 2010 application for disability insurance benefits beginning April 2010. The Veteran's claim was reviewed independently by a physician and vocational specialist who noted that he had a history of prostate cancer without recurrence as well as knee surgeries and shoulder impairment. Despite anxiety, he was assessed as able to care for his personal needs and did laundry, vacuuming, household repairs, lawn mowing, paid his bills and handled his savings account. With respect to urinary incontinence the Veteran was using 3 to 5 pads a day; did not have to be near a restroom; and had not been prevented from travelling long distances, playing tennis, weekly church attendance or caring for 3 grandchildren, including a toddler. The Veteran had rejected surgical treatment for urinary incontinence in lieu of performing Kegel exercises which suggested to the evaluators that the incontinence may not be as severe as the Veteran alleged. In summary, the SSA findings were that the intensity, persistence and limiting effort of his symptoms were not fully credible. The vocational expert found that the Veteran was capable of performing his past work at the waste-water treatment plant. The skills required for operation and monitoring of treatment plant machines and equipment controls were considered to be of light physical demand according to both the Veteran and SSA regulations. In a January 2016 VA clinic visits, the Veteran disclosed that he has only been able to play doubles in tennis once or twice a week due to his knee. He endorsed having nocturia and mild incontinence. In May 2017, the Veteran underwent a VA disability examination for PTSD. He noted that he last worked in 2010 in the waste-water treatment plant where he began work 40 years before but "had enough for his pension so he retired." The Veteran described his work environment at the plant as isolated. His PTSD symptoms were noted to be evident throughout his years of employment and the examiner rated the Veteran's PTSD as causing 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 Veteran's July 2017 Statement in Support of Claim and Notice of Disagreement indicates that he had tried to find gainful employment since retiring, but he was unable to work due to urinary incontinence and PTSD which his representative indicated required that the Veteran avoid the large bustling environment of the city water treatment plant. See Caluza 7 Vet. App. at 506. His employment verification indicates that he retired in April 2010, and that he used 118 hours of sick leave in his last year due to disability, while receiving a payout of $5,798 in vacation leave. His retirement was not characterized as a disability retirement. The Board observes that no physician, psychologist, or clinician has opined that any of the Veteran's disabilities has rendered the Veteran totally impaired occupationally or socially. In addition, a SSA vocational specialist found him capable of performing his water treatment plant duties. The evidence reflects that while the Veteran suffered from anxiety and PTSD within a year of leaving service, he worked continuously for 40 years at the water treatment plant including continuing to work for nearly three years with prostate surgery residuals after a period of recuperation from his prostate cancer surgery. Accordingly, the preponderance of the most probative evidence is against granting entitlement to a TDIU. As such, the benefit of doubt doctrine is not for application in this case. See 38 U.S.C. § § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.