Citation Nr: 21076841 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-02 067 DATE: December 28, 2021 ORDER Entitlement to a separate rating for neurological residuals of bilateral hydrocele with left testicular echotexture, residuals of groin injury, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted as of March 2, 2015. FINDINGS OF FACT 1. The evidence of record does not reflect any neurological residuals of bilateral hydrocele with left testicular echotexture, residuals of groin injury. 2. It is reasonably shown that from March 2, 2015 forward the Veteran's service connected TBI, precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a separate rating for neurological residuals of bilateral hydrocele with left testicular echotexture, residuals of groin injury have not been met. 8U.S.C. §§1155, 5107; 38C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b. 2. The criteria for a TDIU as of March 2, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 2009 to June 2011. The Veteran presented sworn testimony at a hearing before the undersigned in April 2021. This appeal was remanded by the Board in May 2021 for further development. 1. Entitlement to a separate rating for neurological residuals of bilateral hydrocele with left testicular echotexture, residuals of groin injury. The Veteran contends that he is entitled to a separate rating for neurological residuals of bilateral hydrocele with left testicular echotexture, residuals of groin injury. An October 2019 VA treatment record notes the Veteran reported occasional pain that is deep in the pelvic area and pain in his bilateral testicles with activity, exercise, and intercourse. He also reported hesitancy and maintaining a stream. An October 2019 VA treatment record notes a recent scrotal ultrasound reveals bilateral varicoceles and hydroceles that do not account for his long-standing pain following trauma. The Veteran was afforded a VA male reproductive system conditions examination in July 2021. Diagnoses of erectile dysfunction and testicular atrophy were noted. It was noted that recent scrotal ultrasound documents a relatively normal right testicle with normal echotexture and echogenicity and doppler flow with a small hydrocele. It was further noted that a left testicle hydrocele and hypoechoic linear lesions were noted on ultrasound. A voiding dysfunction due to the Veteran's neurogenic bladder was noted. Daytime voiding interval of between 1 and 2 hours, as well as nighttime awakening to vid 5 times or more, were noted. Marked hesitancy, markedly slow stream, markedly weak stream, and markedly decreased force of stream were noted. Erectile dysfunction attributable to testicular trauma was noted, as was use of medication and ability to achieve an erection sufficient for penetration and ejaculation with the use of medication. The Board notes that the Veteran is already separately compensated for erectile dysfunction. The examiner did not examine the Veteran's penis, testes, or epididymis per his request, and it was noted that the Veteran reported normal anatomy. The examiner further noted that "[n]o true neurological manifestations are noted" upon examination. Here, the evidence of record does not reflect that the Veteran has any neurological manifestations of his bilateral hydrocele with left testicular echotexture, residuals of groin injury. Consequently, the claim must be denied. 2. Entitlement to a TDIU. The Board notes that entitlement to a TDIU was raised on the record at the April 2021 Board hearing. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also, Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See, Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular 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 service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Service connection is in effect for the Veteran's PTSD at 50 percent from June 5, 2013, for bilateral hydrocele at 40 percent from December 2, 2014, residuals of left knee partial anterior cruciate ligament repair at 10 percent from June 19, 2011, Traumatic Brain Injury (TBI) at 10 percent from June 5, 2013, chronic thoracic strain at 10 percent from December 2, 2014, right knee patellofemoral syndrome at 10 percent from December 2, 2014, tinnitus at 10 percent from July 23, 2019, and erectile dysfunction, noncompensable from May 25, 2016. As of December 2, 2014, with a combined rating of 80 percent, the Veteran has met the schedular requirement for a TDIU. In a June 2021 VA Form 21-8940, the Veteran reported having some undergraduate education with progress being made in 2012 to 2013 and again in 2017 to 2018, but with no degree earned. A post-military history of working at a law service from August 2014 to December 2014 and then at an auto dealership from December 2014 to March 2015 was noted, with March 1, 2015 being the date he became too disabled to work and also the date he last worked full time. A May 2015 VA PTSD examination report notes the Veteran exhibited symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, and disturbances of motivation and mood. Road rage was also reported. A May 2015 VA TBI examination report notes the Veteran has a mild neurocognitive disorder due to his TBI. It was noted that the Veteran's "performance on neuropsychological measures suggested noticeable weaknesses in processing speed and verbal learning/memory, and significant impairment in complex attention, including selective attention and divided attention." A July 2021 VA male reproductive system examination report notes that due to his testicular condition the Veteran would have difficulty in performing a physically demanding job that required extensive walking, climbing, lifting, and carrying, though sedentary employment "would likely be possible." Based on the above, in its role as a finder of fact, the Board concludes that the Veteran has been unable to secure and maintain substantially gainful employment due to the effects of his service-connected bilateral hydrocele with left testicular echotexture, residuals of groin injury, TBI, and PTSD with major depressive disorder, anxiety disorder, and mild cognitive disorder residual of TBI. The evidence shows that his physical disability would preclude any manual labor. The Board acknowledges the opinion of the July 2021 VA examiner that sedentary employment "would likely be possible." However, the examiner offered no explanation for this conclusion. The evidence of record clearly documents that due to his PTSD and TBI, the Veteran would have problems with concentration, memory, finishing tasks, and following complex instructions. The Board also acknowledges that the Veteran has made some progress regarding his education since he last worked, but this did not result in a diploma, was only for one year, and there is no evidence of record that the Veteran has undertaken any educational endeavors since 2018. In analyzing the meaning of "substantially gainful employment," Courts have concluded that "the test is whether a particular job is realistically within the physical and mental capabilities of the claimant." Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). It is not necessary to find the Veteran is a total basket case before concluding he is unemployable. Accordingly, he need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of his overall employability. See, Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). (Continued on the next page) In light of the evidence, the Board finds that it is at least as likely as not that the Veteran is unemployable due to his service-connected disabilities, and that a grant of TDIU is warranted as of March 2, 2015, the day after his last reported day of full-time employment. Geib. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.