Citation Nr: 21070238 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-45 610 DATE: November 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 23, 2019 to January 28, 2021 is granted. REMANDED Entitlement to a TDIU prior to September 23, 2019, on an extraschedular basis, is remanded. FINDING OF FACT From September 23, 2019 to January 28, 2021, there is at least an approximate balance of positive and negative evidence as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities when considering his education, special training, and employment history. CONCLUSION OF LAW The criteria for entitlement to a TDIU from September 23, 2019 to January 28, 2021 are 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 a period of active duty for training from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed his claim for a TDIU through a VA Form 21-8940 on August 17, 2012. As such, the rating period on appeal is from August 17, 2012. In a June 2021 rating decision, the Veteran was awarded a 100 percent combined rating effective January 29, 2021. This constitutes a higher benefit, and special monthly compensation (SMC) under 38 U.S.C. § 1114(s) was also granted as an ancillary benefit from January 29, 2021. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Thus, entitlement to a TDIU is rendered moot since January 29, 2021. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). This decision splits the issue of entitlement to a TDIU into two separate rating periods: (1) entitlement to TDIU prior to September 23, 2019, (2) entitlement to a TDIU from September 23, 2019 to January 28, 2021. This permits a grant of a TDIU for the period from September 23, 2019 to January 29, 2021, during which time the evidence of record shows the Veteran was entitled to a TDIU, without the delay of awaiting additional adjudication relating to whether he was entitled to a TDIU prior to that time. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (splitting a claim generally is within VA's discretion). The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge in November 2021. Entitlement to a TDIU from September 23, 2019 to January 28, 2021. 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(a). 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). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. From September 23, 2019 to January 28, 2021, the Veteran's service-connected disabilities include: residuals of prostate cancer status post brachytherapy, rated as 40 percent disabling; chronic diarrhea associated with residuals of prostate cancer, rated as 30 percent disabling; lumbosacral strain, rated as 20 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran's combined disability rating is 70 percent from September 23, 2019 to January 28, 2021. As the Veteran has "one disability" rated at 40 percent or more and a combined disability rating of 70 percent or more, the threshold requirements for a TDIU are met during the entire rating period on appeal. 38 C.F.R. § 4.16(a). With the threshold requirements satisfied, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. By way of background, the Veteran has a high school education and had no other eduction or training before he become too disabled to work. In his VA Form 21-8940 dated August 2012, he reported that he worked as a truck driver from 2007 to 2009 and last worked on December 23, 2009, when he became too disabled to work due to service-connected prostate cancer residuals. During an August 2012 RO hearing, he testified that as a truck driver, the federal law required that he should get 10 hours of sleep before going on the road, but due to his nighttime voiding, he was unable to get a solid 10 hours of sleep as he voided more than five times per night. He stated that he had been employed as a truck driver for 25 years and he could no longer work since his prostate cancer surgery. A December 2012 VA examiner provided an opinion that the Veteran could no longer drive semi-trucks due to the urinary frequency complication but could obtain and maintain employment if he had free access to a bathroom, particularly, in a sedentary job. In an April 2013 statement, the Veteran wrote that since his bout with prostate cancer, he had little or no control over his bowel movements leading to severe embarrassment and it kept him from traveling any distance or being far from immediate access to a bathroom. He stated this rendered him unable to find employment where he could immediately vacate his station to use the bathroom facilities as much as three times in an hour. During a December 2013 VA examination, the Veteran reported that he had frequent loose bowel movements during daytime as well as nighttime averaging six to seven times per 24 hours. He stated this began after the prostate cancer treatment with seed radiation in October 2010. Upon careful review of the evidence of record, the Board finds that the positive and negative evidence regarding the Veteran's TDIU claim is in relative equipoise. The record shows that the Veteran has not been working as a truck driver since September 2009. The Board finds that the realistic chances of the Veteran obtaining and retaining employment must be considered in light of his physical and educational capabilities and employment history. Although the Veteran may be able to find some sedentary job and have some marginal employment, the totality of the evidence supports a finding that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. As noted above, the Veteran has a high school degree, and spent his entire 27 year career working as a truck driver. His education and training is limited, and his physical abilities are quite significant as evidenced by his high disability ratings and the lay statements. During the Board hearing, the Veteran testified that he has no typing or keyboarding skills as he had never had sedentary work. He stated that after separation from service, about 40 years ago, he painted cars and then started driving trucks. In sum, the Veteran's service-connected residuals of prostate cancer, chronic diarrhea, lumbosacral strain, and tinnitus are manifested by various symptoms that impact his ability to secure or follow a substantially gainful occupation. When considering the Veteran's education, training, and employment history, the Board concludes that the evidence is at least in equipoise as to whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As such, based on the evidence of record and resolving reasonable doubt in the Veteran's favor, entitlement to a TDIU is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS FOR REMAND 1. Entitlement to a TDIU prior to September 23, 2019, to include on an extraschedular basis, is remanded. The Veteran seeks an award of TDIU for the entire appeal period. As discussed above, TDIU is warranted when a claimant is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a). When unemployability is shown and the claimant meets certain numeric rating requirements, the Board may award TDIU in the first instance. 38 C.F.R. § 4.16(a). Otherwise, the Board may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). The Veteran first met the criteria for TDIU under 38 C.F.R. § 4.16(a) effective September 23, 2019. Nonetheless, the Board finds that there is evidence of record demonstrating that the Veteran may have been unable to secure or follow a substantially gainful occupation prior to that date. Because the Board is unable to award a TDIU on an extraschedular basis in the first instance, a referral to the Director for consideration of the matter under 38 C.F.R. § 4.16(b) is warranted. The matter is REMANDED for the following actions: (Continued on the next page) 1. Refer the application for a TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU prior to September 23, 2019, to include on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. 2. Readjudicate the issue. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.