Citation Nr: 21072210 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-39 412 DATE: December 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, effective April 1, 2019. REMANDED Entitlement to a TDIU on an extraschedular basis prior to September 13, 2018 is remanded. FINDING OF FACT The Veteran's service-connected disabilities precluded him securing or following a substantially gainful occupation consistent with his education, skills, training, and work history from April 1, 2019. CONCLUSION OF LAW The criteria for entitlement to a TDIU, effective April 1, 2019, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. Entitlement to a TDIU from April 1, 2019 is granted. The Board finds entitlement to a TDIU is warranted from April 1, 2019. The Veteran is already assigned a total rating from September 13, 2018 to March 31, 2019. The Board is remanding the issue of entitlement to a TDIU prior to September 13, 2018 for additional development. 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. From April 1, 2019, the Veteran is service connected for thrombosis, TIA, or cerebral infarction to include LUE weakness, rated at 10 percent; residuals of prostate cancer, rated at 40 percent; diabetes mellitus, rated at 20 percent; left lower extremity (LLE) peripheral neuropathy (PN), rated at 20 percent; right lower extremity (RLE) PN, rated at 20 percent; and tinnitus, rated at 10 percent. The Veteran is service connected for bilateral hearing loss and erectile dysfunction with noncompensable ratings. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). 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 a college education. His past work is as a truck driver and mechanic. See March 2021 Application for Increased Compensation Based on Unemployability. A March 2021 Veteran statement reported he left work in 2009 when he was diagnosed with prostate cancer. He reported he tried to return to truck driving in 2011, but was hindered by the frequency he needed to use the bathroom. He stated he was determined unfit for work after a week. He reported he tried again to return to work in 2015 as a local truck delivery driver, but after a week of training, the company felt his condition would interfere with the job requirements. He reported being unemployed since that time. November 2018 VA examinations opined the Veteran's thrombosis, TIA or cerebral infarction impacted his ability to work due to weakness in the LUE impacting his strength for wrenching, lifting, or pushing objects. The examiner opined the Veteran's diabetic peripheral neuropathy impacted his ability to work due to inability to perform tasks requiring walking and standing due to weakness/numbness in feet and causing him to be off balance. The most recent VA examination for prostate residuals showed his disability produced urine leakage requiring absorbent material which must be changed less than 2 times per day and produced urinary frequency of daytime voiding interval between 1 and 2 hours. See March 2015 VA examination. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's service-connected disabilities precluded him securing or following a substantially gainful occupation consistent with his education, skills, training, and work history from April 1, 2019. The Veteran's past work is as a mechanic and truck driver. The preponderance of the evidence shows the frequency and severity of the Veteran's service-connected disabilities would limit his ability to stand, walk, drive a vehicle, lift, carry, or push on a consistent basis throughout a workday. The preponderance of the evidence shows the frequency and severity of the Veteran's service-connected residuals of prostate cancer would require he wear a pad and take unscheduled breaks. The combination of the Veteran's service-connected disabilities would prevent him from performing any full-time work on a consistent basis from April 1, 2019. Accordingly, entitlement to a TDIU from April 1, 2019 is warranted. REASONS FOR REMAND The Veteran's service-connected disabilities do not meet the schedular requirements for TDIU prior to September 13, 2018. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable due to service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational level, and vocational attainment must be considered. See 38 C.F.R. § 4.16(b). The Board finds sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Ray v. Wilkie 31 Vet. App. 58, 66 (2019). Prior to September 13, 2018, the Veteran was service connected for prostate cancer, rated at 40 percent, tinnitus, rated at 10 percent from August 2017, bilateral hearing loss, rated at 0 percent; and erectile dysfunction, rated at 0 percent. The Veteran reports residuals from his prostate cancer interfere with his employment because he has urinary leakage which required consistent changing of absorbent materials. The Veteran wrote it was impossible to continue his job as a truck driver because he had to stop too often. See February 2014 NOD. His truck driver job was negatively impacted because of his need for frequent stops due to his urinary leakage. As such, the Board finds referral of the claim to Director of Compensation Service for extraschedular consideration is warranted. The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU to the Director of Compensation Service for extraschedular consideration. Include 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. See 38 C.F.R. § 4.16(b). TESS WINKLER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.