Citation Nr: A21017487 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 190805-31247 DATE: October 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected impairment in rectal sphincter control precludes him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from June 1978 to June 1984. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). AMA became effective on February 19, 2019. Under AMA, an AMA appeal may come to the Board in three ways: (1) through a RAMP rating decision; (2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or (3) an appeal of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) issued on or after February 19, 2019. The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim in November 2017 as part of the legacy appeals system. The Veteran filed a notice of disagreement in December 2017. Thereafter, an SOC was issued in June 2019. In the August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the June 2019 SOC, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing, which was held on February 12, 2021. 38 C.F.R. § 20.302(a). 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran seeks a TDIU. He contends that his service-connected impairment of rectal sphincter control (previously rated as hemorrhoids) involve inability to hold in his bowels and swelling and pain with extensive bleeding that require frequent bathroom trips and make him unable to sit or walk for prolonged periods of time. See, e.g., February 2021 Board hearing transcript, pp. 5, 6, 11, 12. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, 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. For the purposes 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, 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. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disability that is service connected: impairment of rectal sphincter control (previously rated as hemorrhoids), rated 0 percent from January 26, 2016; 20 percent from April 15, 2016, and 60 percent from November 1, 2016. The Veteran filed the present claim on appeal in November 2016. See Veterans Application for Compensation and/ or Pension, VA-Form 21-526, dated November 1, 2016. Based on the forgoing, the Veteran has one disability rated 60 percent or more, effective November 1, 2016, the date of the claim on appeal. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran has a high school education with no special skills and has a work history of mover and delivery driver that ended in 1997. See VA-Form 21-8940, dated May 2017; and February 2021 Board hearing transcript, p. 13. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the impairment caused by his service-connected impairment of rectal sphincter control (previously rated as hemorrhoids). In addition to discomfort from prolonged sitting and walking due to his hemorrhoids, the Veteran has trouble making it to the bathroom in time for bowel movements. See, e.g., February 2021 Board hearing transcript, pp. 11-12. He also has lack of control with bowel movements in any situation, even when driving. Id. at 12. An April 2017 VA examination report shows that the Veteran had internal or external hemorrhoids and impairment of rectal sphincter control. His hemorrhoids were large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences with persistent bleeding. The impairment of rectal sphincter control involved extensive leakage with fairly frequent involuntary bowel movements. The Veteran's condition impacted his ability to work in that he had difficulty sitting for long periods of time. VA examinations in October 2017 and February 2019 VA found that the Veteran's hemorrhoids did not impact his ability to work but did not address the impairment of rectal sphincter control, which is significant because the AOJ recharacterized the Veteran's service-connected disability to involve impairment of rectal sphincter control, rather than just hemorrhoids. A June 2019 VA medical opinion also found that there were no employment restrictions secondary to the rectal condition but indicated that they were unable to verify a diagnosis of impaired sphincter control/ fecal incontinence in the treatment records. The probative value of the June 2019 medical opinion is undermined by the April 2017 VA examination report, which diagnosed the Veteran with impairment in rectal sphincter control. Thus, a diagnosis had been established in the record, which is inconsistent with the June 2019 VA examiner's assessment. The findings on the April 2017 examination that he had restrictions from having inability to control his bowels and pain from prolonged sitting and standing are also consistent with the Veteran's testimony in February 2021. The Veteran does not have any specialized training and has a work history that involves prolonged sitting (delivery driver) and manual labor (mover). Given the forgoing, the Veteran's service-connected impairment of rectal sphincter control precludes him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran would not be able to work in any field involving prolonged sitting and manual labor with needing to go to the bathroom frequently due to inability to control his bowels, or the restrictions from being unable to walk or sit for prolonged periods of time. To the extent that the VA examiners of record found that the Veteran's hemorrhoids did not restrict his employment, as noted, they did not consider the impairment in sphincter control. Also, entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). Accordingly, a TDIU is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.