Citation Nr: 21007082 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-41 159A DATE: February 8, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) from September 5, 2013, is granted. FINDING OF FACT The Veteran’s service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background from September 5, 2013. CONCLUSION OF LAW The criteria for entitlement to a TDIU from September 5, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by RO. The Veteran testified before the undersigned in an August 2017 video-conference hearing. A transcript of the hearing is included in the electronic claims file. In a December 2019 decision, the Board granted the Veteran’s claim for a TDIU for the period from January 25, 2011 to September 5, 2013. As the Veteran was in receipt of a 100 percent schedular rating for prostate cancer and had also been awarded SMC under 38 U.S.C. § 1114 (s) for the period from September 5, 2013, the Board determined that a claim for entitlement to a TDIU from September 5, 2013 was rendered moot. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted the parties Joint Motion for Partial Remand (JMPR) and vacated the Board’s December 2019 decision that determined the claim for a TDIU from September 5, 2013 was rendered moot, and remanded that issue to the Board for further development and consideration. The parties agreed that the Board’s finding that the claim for a TDIU for the period from September 5, 2013 is moot is prejudicial to the Veteran because the 100 percent rating for the Veteran’s prostate cancer is not permanent and if reduced without the benefit of the Board having adjudicated the claim of a TDIU from September 5, 2013, the Veteran would have to file a new claim for TDIU. This prejudiced the Veteran because it required additional time and a potentially different effective date for the TDIU when he had already invested years into his claim and is just judicially inefficient. The Board reiterates that effective September 5, 2013, the Veteran’s prostate cancer is evaluated as 100 percent disabling and he has been awarded entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350(i). 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from September 5, 2013 Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. Effective September 5, 2013, service-connection is in effect for prostate cancer (100 percent disabling), posttraumatic stress disorder (PTSD) (70 percent disabling), tinnitus (10 percent disabling), erectile dysfunction (0 percent disabling) and headaches (0 percent disabling); the combined rating for these service-connected disabilities is 100 percent and he has been awarded SMC under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350(i). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See 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 or her 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 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The July 2014 Report of VA PTSD examination reflects that the Veteran has increased severity of PTSD since the last examination. However, the psychologist concluded that the Veteran’s PTSD did not render the Veteran unable to secure or maintain substantially gainful employment. July 2014 (prostate cancer), June 2018 (prostate cancer), April 2019 (prostate cancer), July 2019 (headaches) and May 2020 (prostate cancer) Reports of VA examination reflect that the Veteran’s prostate cancer and headaches did not have an impact on his ability to work. A March 2016 Report of VA prostate cancer examination reflects that the Veteran’s prostate cancer impacts his ability to work. The physician explained that the need for frequent bathroom breaks prevented the Veteran from driving the bus. Further, general weakness and fatigue prevented the Veteran from working. The Veteran’s application for a TDIU rating documented that he last worked full-time in 2010. He reported that his service-connected PTSD and residuals of prostate cancer disabilities prevented him from securing or following any substantial gainful occupation. He had completed 1 year of college and had training as a brick mason and truck driver. (Continued on the next page)   The evidence shows that the Veteran’s service-connected disabilities, namely his prostate cancer and PTSD (of increased severity), precludes him from realistically obtaining and maintaining any form of gainful employment, consistent with his work and education background since September 5, 2013. His need for frequent bathroom breaks prevented the Veteran from driving the bus and his general weakness and fatigue prevented him from working (March 2016 Report of VA prostate cancer examination). Accordingly, the Board finds that a grant of a TDIU rating is warranted from September 5, 2013. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.