Citation Nr: 21073351 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-07 344 DATE: December 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective February 3, 2015 is granted, but entitlement to TDIU prior to February 3, 2015 is denied. FINDINGS OF FACT 1. Prior to February 3, 2015, the Veteran's daytime voiding interval between two and three hours with occasional incontinence did not render him incapable of performing substantially gainful employment consistent with his educational and vocational experience. 2. Since February 3, 2015, the Veteran manifested voiding symptomology requiring the wearing of absorbent materials that must be changed more than four times per day which rendered him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met effective February 3, 2015, but have not been met prior to February 3, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated November 2016 and January 2018 of the Department of Veterans' Affairs (VA) Regional Office (RO) in New York, New York (Agency of Original Jurisdiction (AOJ)). The Veteran testified at two Board hearings in October 2018 and April 2019. Transcripts of both proceedings are of record. The Veterans Law Judge (VLJ) who conducted the October 2018 hearing, is no longer a VLJ with the Board. This matter was previously before the Board in June 2021. The Board remanded the issue to obtain an opinion from the Director of Compensation Service. As there has been substantial compliance with the Board's remand directives, adjudication can proceed. Stegall v. West, 11 Vet. App. 286, 271 (1998). Total disability ratings for compensation based on individual unemployability may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single 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. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. A claim for a total disability evaluation based on individual unemployability due to service-connected disorders is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (1999). Such a claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. Being unable to secure and follow a substantially gainful occupation has been defined as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.) In June 2021, the Board granted TDIU for the period beginning March 17, 2015 on a schedular basis. Thus, the issue currently before the Board is entitlement to TDIU for the appeal period prior to March 17, 2015. The appeal period extends to August 22, 2012. For the time period prior to February 3, 2015, the Veteran's service-connected disabilities were rated as follows: adenocarcinoma of the prostate, rated 20 percent disability (which was eventually increased to 60 percent on February 3, 2015) and erectile dysfunction, rated noncompensable. His total 20 percent combined rating does not satisfy the threshold minimum percentage rating requirements for a TDIU rating under the provisions of 38 C.F.R. § 4.16(a). Beginning on February 3, 2015, the Veteran was awarded a 60 percent rating for adenocarcinoma of the prostate resulting in a combined 60 percent rating. As one service-connected disability is rated at 60 percent, the Veteran is schedularly eligible for a TDIU rating. The evidence of record shows that the Veteran has a Master's degree and worked 40 years as an assistant principal until 2002. See January 2018 Employment Information; April 2019 Board Testimony. June 2011 private medical records reflect that the Veteran underwent a radical perineal prostatectomy. February 2013 VA treatment records reflect the Veteran's status post prostatectomy was consistent with urinary incontinence. During a March 2014 VA examination, the Veteran reported urge incontinence and urine leaking, occasionally requiring him to wear pads at night. At that time, the Veteran's disorder was in remission. In evaluating the Veteran's voiding dysfunction, the examiner noted daytime voiding interval between two and three hours, and awakening to void three or four times per night. The Veteran reported having to change undergarments three times per week due to accidents. The Veteran did not manifest symptoms of obstructed voiding or urinary tract infection. The examiner opined that due to his incontinence, the Veteran's ability to complete work, hold meetings, and teach would be affected. Additionally, his commute to work would be exceedingly difficult. February 3, 2015 VA treatment records reflect that the Veteran reported urinating on himself due to urge frequency multiple times per day. During an April 2015 VA examination, the Veteran's disorder was in remission. The Veteran reported that he occasionally wore diapers; had the urge to urinate every two or three hours; and got up to urinate six or seven times per night. In evaluating the Veteran's voiding dysfunction, the examiner noted daytime voiding interval between one and two hours, and awakening to void five or more times per night. The Veteran did not manifest symptoms of obstructed voiding or urinary tract infection. During an October 2016 VA examination, the Veteran's disorder was in remission. In evaluating the Veteran's voiding dysfunction, the examiner noted that the disorder required absorbent materials that must be changed more than four times per day, and awakening to void five or more times per night. The Veteran also manifested symptoms of obstructed voiding with hesitancy and decreased force of stream. The Veteran did not manifest urinary tract infection. November 2017 and January 2020 VA examinations reflect that the Veteran had no renal dysfunction. Additionally, the Veteran's other medical records did not reflect any renal disorder. In a May 2015 statement, the Veteran's spouse reported that the Veteran "is constantly wetting himself," including during social situations. His spouse further reported that the Veteran got up to urinate six or seven times per night. During his October 2018 Board hearing, the Veteran noted running to the bathroom every ten minutes and soaking any pads he wore. In a September 2021 advisory opinion, the Director of Compensation Service opined that the combined effects of the Veteran's service-connected disabilities did not support an exceptional situation that prevented gainful employment prior to March 17, 2015. In so finding, the Director acknowledged the Veteran's incontinence and urinary frequency, but found that the Veteran's prostate condition did not prohibit him from obtaining or maintaining gainful employment. Specifically, the Director noted that based on his education, the Veteran has demonstrated an aptitude to learn new skills. The Board has weighed the positive and negative evidence of record. The Board finds that, effective February 3, 2015, the Veteran met the criteria for entitlement to TDIU. As of February 3, 2015, the Veteran's voiding dysfunction symptomology most closely resembled symptomology requiring the wearing of absorbent materials which must be changed more than 4 times per day. He reported that he urinated on himself due to urge frequency multiple times per day. Likewise, in a May 2015 statement, the Veteran's spouse reported that the Veteran "is constantly wetting himself," including during social situations. June 2017 VA treatment records reflect the Veteran's treating physician's opinion that the Veteran is unable to work due to his incontinence. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disability rendered him unable to obtain and retain substantially gainful employment as of February 3, 2015. Prior to February 3, 2015, however, the Board previously held in a June 2021 decision that the Veteran manifested a daytime voiding interval between two and three hours, and awakening to void three or four times per night. This finding was based, in part, to the Veteran's specific description of symptomatology during the March 2014 examination. The Board acknowledged the assertion of the Veteran and his spouse that the symptoms present in 2015 had been present since 2012, but found that the Veteran's clear March 2014 description of symptomatology was more credible than the later recollections. The March 2014 examiner described the Veteran's incontinence as affecting his ability to complete work, hold meetings, and teach, and indicated that his commute to work would be exceedingly difficult. However, the schedular criteria contemplate impairment of earning capacity. See 38 C.F.R. § 4.1. The Board finds that the lay and medical evidence does not establish that a daytime voiding interval between two and three hours with occasional incontinence rendered the Veteran incapable of performing duties as an assistant principal during an 8 hour work day. The Veteran essentially had a physical limitation of requiring bathroom use every two to three hours and/or the use of a pad for occasional incontinence which, while affecting the ability to perform his job, is not shown to significantly affect the ability to accomplish his job in a satisfactory manner. Given the evidence discussed, the Board finds entitlement to TDIU effective February 3, 2015. However, prior to February 3, 2015, the criteria for entitlement to TDIU have not been met. There is no further doubt of material fact to be resolved in his favor. 38 U.S.C. § 5107(b). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.