Citation Nr: 21072092 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-24 962 DATE: December 2, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period from January 1, 2011, to February 4, 2011, or due to a single service-connected disability other than prostate cancer, prior to January 1, 2011, is denied. FINDINGS OF FACT 1. From January 1, 2011, to February 4, 2011, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 2. Prior to January 1, 2011, a single service-connected disability other than prostate cancer did not render the Veteran unable to secure or follow a substantially gainful occupational consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities for the period from January 1, 2011, to February 4, 2011, or due to a single service-connected disability other than prostate cancer, prior to January 1, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to May 1969, to include service in the Republic of Vietnam. He is the recipient of the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, October 2020, April 2021, and August 2021, the case was remanded for additional development and now returns for further appellate review. The Board has recharacterized the issue herein to reflect consideration of a TDIU due to a single service-connected disability other than prostate cancer, prior to January 1, 2011. Entitlement to a TDIU due to service-connected disabilities for the period from January 1, 2011, to February 4, 2011, or due to a single service-connected disability other than prostate cancer, prior to January 1, 2011. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16 (a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include 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. The Veteran has been awarded a TDIU as of September 9, 2016; however, the appeal period extends from October 6, 2010, the date VA received his Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940). In this regard, for the appeal period prior to September 9, 2016, the Veteran has been assigned a 100 percent schedular rating with the exception of the following period: January 1, 2011, to February 4, 2011, where he is in receipt of a combined disability rating of 70 percent. Thus, he has met the schedular criteria for a TDIU for the entire appeal period prior to September 9, 2016. Additionally, he has been awarded special monthly compensation (SMC) at the housebound rate since February 4, 2011. Thus, a TDIU as of such date is moot. Further, the Board notes that the Veteran is in receipt of a 100 percent schedular rating for a single service-connected disability, adenocarcinoma of the prostate, status post brachytherapy (prostate cancer), and SMC under 38 U.S.C. § 1114(k), effective March 25, 2010. Thus, as of such date, a TDIU predicated on prostate cancer alone is moot, as it would not result in additional disability compensation. Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the claim of entitlement to a TDIU based on service-connected disabilities for the period from January 1, 2011, to February 4, 2011, or based on a single disability other than service-connected prostate cancer, from October 6, 2010, to January 1, 2011, is properly before the Board. As relevant to the applicable time periods, the Veteran is in receipt of service connection for depression associated with prostate cancer; prostate cancer; peripheral neuropathy, right upper extremity (RUE) associated with diabetes mellitus; peripheral neuropathy, left upper extremity (LUE) associated with diabetes mellitus; and erectile dysfunction, associated with prostate cancer. Turning to Veteran's education and work history, he reported that he completed high school; last worked full-time in May 2007; and worked as a casino supervisor from 1989 to 1998, and as a casino croupier (dealer) from 2001 to 2003, and again from June 2005 to July 2007. See VA Form 21-8940 and Social Security Administration (SSA) records. Although dated prior to the appeal period, the Board finds that the following records provide relevant information pertinent to the issue on appeal. In this regard, a May 2009 VA treatment record reflects the Veteran's report that he cared for his mother for years until her death in 2008. Additionally, during VA examinations conducted in June 2009 and April 2010, the Veteran indicated that he had resigned in 2007 to take care of his sick mother. A March 2010 SSA record reveals the Veteran lived alone, was able to care for himself to include cooking, shopping, going to medical appointments, and completing all household chores such as sweeping, scrubbing, laundry, and mowing the grass. Such record further reflects that, for recreation, the Veteran reported walking, traveling the island, and going to movie theaters and malls once or twice a month. He further reported having difficulty with lifting, standing, stair climbing, completing tasks, and concentration; however, he stated he was able to walk for more than an hour and able to pay attention as long as needed. Further, while an April 2010 VA genitourinary examination report reflects the Veteran's report that he retired in October 2009 due to prostate cancer, a March 2011 examiner noted that there were no effects of the Veteran's prostate cancer on his usual daily activities and there was no evidence of residual cancer at that time (as discussed further below). Examinations contemporaneous with the appeal period reflect the Veteran was oriented, well-developed, and well-groomed; had no gross motor or sensory deficit; and no musculoskeletal deformity, with full range of motion, without tender joints. See June 2010, October 2010, December 2010, February 2011, and April 2011 VA treatment records. In March 2011, just following the period on appeal, the Veteran was afforded a VA general medical examination. At such time, the examiner noted the Veteran stated that he had been unemployed since 2007, but then decided to resign in 2009 due to his prostate cancer. However, the examiner determined that such disability was in remission and there were no residuals or urinary incontinence that would limit occupational activities. Thus, the examiner opined that the Veteran's service-connected prostate cancer did not preclude him from employment and he was capable of working part-time or in a more sedentary type of job. Further, a November 2011 VA examiner found that the Veteran's diabetic peripheral neuropathy did not impact his ability to work. Based upon a review of the foregoing, the Board finds that the Veteran's prostate cancer, depression, and peripheral neuropathy of the bilateral upper extremities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, the record reflects that such disabilities limited the Veteran in regard to his ability to perform physical work. Specifically, he had difficulty with lifting, standing, and stair climbing. However, the Board finds that the Veteran was capable of performing the physical and mental acts necessary for the successful performance in a position that does not require physically intensive activities and is generally performed while sitting or standing at a desk or table, to specifically include a position consistent with his high school education and work history as a casino supervisor and/or dealer. In this regard, such would allow the Veteran to alternate between sitting and standing, and would not require that he remain seated or standing for a prolonged period of time, which the Board finds is consistent with the March 2011 VA examiner's determination that the Veteran was capable of more sedentary work. Further, while the Veteran reported difficulty with completing tasks and concentration, he noted that he was able to pay attention as long as needed. Notably, at his June 2009 and April 2010 VA examinations, the Veteran specifically stated he had stopped working in order to care for his mother, not due to his service-connected disabilities. Consequently, based on the foregoing, the Board finds that a TDIU based on service-connected disabilities for the period from January 1, 2011, to February 4, 2011, or based on a single disability other than service-connected prostate cancer, prior to January 1, 2011, is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a TDIU, the benefit of the doubt doctrine is not applicable and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. K. STANTON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.