Citation Nr: 21068449 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-59 041 DATE: November 10, 2021 ORDER Prior to May 4, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected conditions is denied. From May 4, 2020, entitlement to a TDIU is dismissed as moot. FINDINGS OF FACT 1. Prior to May 4, 2020, the Veteran was service connected for residuals of prostate cancer, rated 60 percent disabling, and erectile dysfunction, rated 0 percent disabling, which did not alone or in combination preclude substantial gainful employment. 2. From May 4, 2020, the Veteran has a 100 percent combined schedular disability rating for prostate cancer residuals, rated 60 percent disabling, and all other disabilities rated less than 60 percent disabling, to include ED, diabetes mellitus, type II, and diabetic peripheral neuropathy of the four extremities; the 100 percent combined rating renders the TDIU claim moot where the TDIU was premised solely on prostate cancer and the record does not reasonably show TDIU based solely on any of the other disabilities alone. CONCLUSIONS OF LAW 1. Prior to May 4, 2020, the criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.25. 2. From May 4, 2020, the issue of entitlement to TDIU is dismissed as moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to September 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in San Diego, California. The Board previously remanded this claim in a June 2021 decision for additional development following a March 2021 hearing. A transcript of the hearing has been associated with the claims file and reviewed. The Board finds substantial compliance with the June 2021 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its findings 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). TDIU This appeal stems from a May 2015 claim where the Veteran contended, he was unemployable due to service-connected residuals of his prostate cancer, rated 60 percent disabling. At that time, he was only service-contended for residuals of prostate cancer, rated 60 percent disabling, and erectile dysfunction (ED), rated 0 percent (non-compensable) disabling. Indeed, the Veteran's main contention throughout the appellate time-period has been that he is unemployable due solely to his service-connected prostate cancer residuals. In a March 2021 rating decision, however, during the pendency of this appeal, the Veteran was also awarded service connection for diabetes and diabetic peripheral neuropathies of all four extremities, which in effect, awarded him a combined evaluation of 100 percent, effective May 4, 2020. A 100 percent rating does not necessarily render a TDIU claim "moot" it entirely depends on whether there is a possibility that TDIU will impact entitlement to a special monthly compensation (SMC) award based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Here, from May 4, 2020, the Veteran's prostate cancer residuals are rated at 60 percent disabling and were the highest of all his service-connected disabilities. Thus, the only scenario in which his 100 percent schedular rating does not render his TDIU claim "moot" is if his TDIU claim can be granted solely due one of his other service-connected disabilities (i.e., ED, diabetes mellitus, or one of the four extremities of his diabetic peripheral neuropathy). See Youngblood v. Wilkie, 31 Vet. App. 412 (2019) (the Court clarified that the TDIU provision that allows for treating multiple disabilities in some cases as "one disability" simply does not apply in the SMC context; one disability requires one disability). As will be outlined below the Board finds no basis that prior to May 4, 2020, the Veteran was unemployable due to his prostate cancer residuals. From May 4, 2020, it continued to be the Veteran's contention that his prostate cancer residuals rendered him unemployable but, in any case the Board also finds no basis in the evidence of record that he is unemployable solely due to any of his other service-connected disabilities. Thus, as will be outlined below, from May 4, 2020, his TDIU claim is indeed moot. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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 C.F.R. § 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 (2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose, 4 Vet. App. at 363. Prior to May 4, 2020, the Veteran was only service-connected for prostate cancer which was rated at 60 percent disabling and erectile dysfunction rated noncompensable. From May 4, 2020, the Veteran had a combined total 100 percent disability rating based on prostate cancer rated at 60 percent disabling; diabetes mellitus rated at 20 percent disabling; and diabetic peripheral neuropathies including: right upper extremity rated at 40 percent disabling; left upper extremity rated at 30 percent disabling; right lower extremity of the sciatic nerve rated at 40 percent disabling; left lower extremity of the sciatic nerve rated at 40 percent disabling; right lower extremity of the femoral nerve at 20 percent disabling; and left lower extremity of the femoral nerve at 20 percent disabling; and erectile dysfunction at a noncompensable rating. Thus, the Veteran meets the schedular criteria for a TDIU rating during the entire period on appeal. 38 C.F.R. § 4.16. Turning to the relevant evidence of record, the Veteran's military occupation specialty was motorized vehicle mechanics. See DD214. The Veteran reported that he last worked full-time as a mechanic from 2007 through 2012 and left the job because of his prostate cancer disability. See May 2015 VA 21-8940; see also March 2021 hearing transcript. The Veteran stated that he could not lift heavy tools. The Veteran's employer submitted a VA 21-4192 stating that the Veteran retired after working as a mechanic / heavy duty repairman from May 2004 through December 2011. See July 2015 VA 21-4192. The Veteran also worked part-time in sales at a hardware store. See September 2018 VA treatment records. Treatment records note the Veteran "retired[,] headache with an operator." See March 2012 VA treatment records. The Veteran indicated he was working at a hardware store walking approximately 10,000 steps per day noting that his feet hurt at the end of the day, but it was tolerable. See January 2017 VA treatment records. In 2019, the Veteran sought medical care for evaluation of episodic shakiness of his left hand when lifting heavy objects and impacted handwriting. See March 2019 VA treatment records. The provider attributed the shakiness to arthritis in the hands noting that the Veteran may also have a component of dystonia from frequent use of his hands as a mechanic. Later in 2020, however, the Veteran's left hand tremor was diagnosed as an essential tremor and polyneuropathy likely diabetic. See October 2020 VA treatment records. Of note, the Veteran's treatment records also indicate a diagnosis of non-service-connected hypertension, obstructive sleep apnea, hyperlipidemia, partial thickness rotator cuff tear, shoulder region pain, and chronic obstructive pulmonary disease. See March 2021 VA treatment records. The Board notes, however, while consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, the Board cannot consider a claimant's impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran stated that he continued to have issues with urine leakage during work hours. He said that his job was very physical and when he had to strain, he would experience leakage in small amounts daily. See May 2009 Correspondence. Larger, more obvious amounts would occur 1-2 times per month. He stated it was very embarrassing as it was noticed by co-workers. Regarding erectile dysfunction, the April 2015 VA examiner opined that this condition does not impact his ability to work. See April 2015 VA examination. Regarding prostate cancer, an August 2015 VA examiner opined that the Veteran's condition did not impact his ability to work. See August 2015 VA examination. At the time, the Veteran reported have a voiding dysfunction that did not require / does not require the use of absorbent material or caused sign and / or symptoms of urinary frequency. The Veteran stated that this examination did not reflect the severity of his prostate cancer residuals and the impact it has on his ability to work. In response, the Board remanded to afford the Veteran another VA examination, which occurred in July 2021. During the July 2021 VA examination, the Veteran reporting having issues with urination and erectile dysfunction. See July 2021 VA examination. He stated that when he strains or sits down at work, he has leakage "fairly often" that has slowly improved but not resolved. He was found to have a voiding dysfunction that does not require the wearing of absorbent material or use of an appliance. The Veteran's experienced increased urinary frequency with daytime voiding intervals between 2 and 3 hours and nighttime awakening to void 2 times. Functional impact was described as no longer working because if he has to strain or lift anything, even five pounds, or do certain movements, he will experience urine leakage. If he strains with any activity and feels himself going too far, he has to "let up" to avoid leakage. The Veteran described that if he sits sometimes without previously voiding, he will experience leakage. He is unable to run, jump, or walk fast due to leakage. He has also stated that due to night waking to void, his restfulness and focus during the day are impacted. Regarding diabetes, the Veteran was noted to have difficulty walking due to numbness in the feet. See February 2021 VA examination. Regarding diabetes associated neuropathies, the Veteran reported having warm, tingling sensation in his feet and left leg since 2013. See February 2021 VA examination. Upon examination, he was noted to have mild constant pain in the right upper and left lower extremities; intermittent pain in all extremities of varied severity; mild right lower extremity and moderate left lower extremity paresthesias and / or dysesthesias; and moderate numbness in all extremities. Functional impacted as noted to be difficulty gripping objects, holding a pencil to write, and walking on the ground without shoes. 1. Prior to May 4, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected conditions is denied. As mentioned above, from May 26, 2015, to May 3, 2020, the Veteran was only service-connected for prostate cancer rated at 60 percent disabling and erectile dysfunction rated noncompensable. Based on the evidence of record, the Board finds a TDIU rating is not warranted during this period. With regard to the economic component, the Veteran was unemployed during this timeframe with a previous work history as a mechanic and in hardware sales. The record reflects the Veteran has experience and training as a mechanic and in sales. Thus, in light of the evidence of record, the Board infers "suitable" work for the Veteran would include any type of work within the vocational-technical capabilities of his past work as a mechanic or in hardware sales. With regard to the non-economic component, the Board finds the evidence does not show the Veteran's disabilities precluded substantially gainful employment during this period. Regarding erectile dysfunction, the VA examination of record notes the condition does not have a functional impact on the Veteran's ability to work. The Veteran has not contended, nor does the record elsewhere suggest, the Veteran's erectile dysfunction impacted his ability to work. Rather, the Veteran has consistently contended his prostate cancer symptoms render him unable to obtain or maintain employment. While the Veteran is not service connected for any conditions impacting his physical-ability factors, the Veteran has stated that his prostate cancer symptom of urinary frequency precludes physical ability factors including straining, lifting, running, walking fast, and jumping because doing so causes leakage. The Board notes in 2015, the Veteran did not experience urinary frequency. Most recently, the Veteran was noted to be urinating every 2-3 hours without the use of absorbent materials. Considering the mental ability factors, the Veteran has contended that night waking for urination impacts his restfulness thereby decreasing focus, and leakage during work causes embarrassment. While the Board does not doubt the Veteran's prostate cancer causes impairing symptomatology, the Board finds during this period, Veteran's service-connected disabilities receive ratings that compensate his functional impairment. The evidence does not support that the Veteran's service-connected conditions render him unable to obtain or maintain substantially gainful employment during this period. Based upon a review of the record and consideration of the Veteran's lay statements, the Board finds the preponderance of the evidence is against a TDIU rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. From May 4, 2020, entitlement to a TDIU is dismissed as moot. From May 4, 2020, the Veteran had a combined total disability rating due to prostate cancer rated at 60 percent; diabetes mellitus rated at 20 percent; noncompensable erectile dysfunction; and diabetic peripheral neuropathies including: right upper extremity rated at 40 percent; left upper extremity rated at 30 percent; right and left lower extremity of the sciatic nerve separately rated at 40 percent; and right and left lower extremity of the femoral nerve separately rated at 20 percent. Under Bradley, a 100 percent combined disability rating does not necessarily render a TDIU claim moot where a TDIU award premised on a single disability could potentially affect eligibility for SMC housebound, which requires one disability at 100 percent and another disability at a 60 percent disability. See Bradley, 22 Vet. App. 280; Buie v. Shinseki, 24 Vet. App. 242 (2010). Under Youngblood, however, the Court clarified that "one disability" for purposes of SMC strictly means "one disability" and the provisions used for TDIU to combine disabilities with common etiologies (such as bilateral upper extremities) would not apply for purposes of SMC. Youngblood, 31 Vet. App. 412. Thus, here, because the Veteran's only 60 percent (or higher) rated disability is prostate cancer residuals, his TDIU claim would only potentially affect SMC eligibility if awarded premised solely on a service-connected disability other than prostate cancer residuals. Again, his premise has been the opposite that he is unemployable because of prostate cancer residuals. The evidence, moreover, does not show that any single service-connected disability has precluded substantial gainful employment and, therefore, TDIU in this case, is moot as of May 4, 2020, the date in which he was awarded a 100 percent schedular combine disability rating. With regard to the economic component, as found above, the Veteran is currently unemployed with a previous work history as a mechanic and in hardware sales. The record reflects the Veteran has experience and training as a mechanic and in sales. Thus, in light of the evidence of record, the Board infers "suitable" work for the Veteran would include any type of work within the vocational-technical capabilities of his past work as a mechanic or in hardware sales. Regarding diabetes mellitus and diabetic neuropathies, the main functional impact was noted to be difficulty walking due to numbness. While the Veteran was previously walking approximately 10,000 steps per day in hardware sales, the Veteran reported he was able to do so, albeit with pain. His peripheral neuropathies cause intermittent pain in all extremities in varied severity, noted as mild to moderate, with complaints of difficulty gripping objects, holding a pencil to write, and walking on the ground without shoes. The Board does not doubt that these various functional impairments cause some difficulties completing some tasks related to his previous work experience as a mechanic. There is nothing indicating, however, that he would be precluded from such work. Indeed, while the Veteran indicated he has difficulty gripping objects he has never indicated he cannot grip objects. Thus, the evidence altogether indicates that neither his diabetes nor any one of his extremity diabetic neuropathies standing alone would preclude the Veteran from obtaining or maintaining substantially gainful employment. The Veteran did testify that he is unable to lift heavy items but said statement was in the context of causes urine leakage, a prostate cancer residual. While the Board does not doubt the Veteran's diabetes and diabetic neuropathies cause impairing symptomatology, the Board finds the Veteran's ratings assigned for these disabilities compensate his functional impairments. His diabetes and diabetic complications would not preclude the Veteran from obtaining or maintaining substantially gainful employment. Regarding erectile dysfunction (ED), the record does not reflect any functional impairment stemming from his ED in particular, nor has the Veteran contended any such functional impairment related to employability. Based on the aforementioned, the Board finds that none of the Veteran's other service-connected disabilities, standing alone, precludes him from obtaining or maintaining substantially gainful employment and, therefore, given these circumstances, his 100 percent combined schedular rating has rendered his TDIU moot as of May 4, 2020. In short, the Board finds no basis to award a TDIU either prior to May 4, 2020, or thereafter. The preponderance of the evidence is against a TDIU and the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.