Citation Nr: 21008940 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-00 394 DATE: February 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his service-connected residuals of prostate cancer has been rendering him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to May 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Board previously found that the claim of TDIU was part and parcel of the increased rating claim for residuals of prostate cancer. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2019 and July 2020, the Board remanded the matter for further development. Now the matter is returned to the Board. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2019). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a)(2) (2019). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2019). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a) (2019). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question 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 (1993). The Veteran is currently service-connected for: residuals of prostate cancer, disabling at 60 percent from October 18, 2012; painful residual scar status post prostatectomy associated with residual of prostate cancer, disabling at 10 percent from October 20, 2020; and erectile dysfunction associated with residual of prostate cancer, disabling at 0 percent from October 18, 2012; and residual scar status post prostatectomy associated with residual of prostate cancer, disabling at 0 percent from October 18, 2012. The Board notes that these service-connected disabilities should be considered as one disability under 38 C.F.R. § 4.16(a)(2). Thus, the Board finds that the Veteran meets the schedular criteria for TDIU as he has one disability ratable at 60 percent. The Veteran contends that he is entitled to TDIU due to his residuals of prostate cancer. In particular, the Veteran asserts that his disability results in significant voiding dysfunction for which he needs to use disposable undergarments and change them every 1 to 2 hours during the day. The record shows that the Veteran graduated from high school and had two years of college education. See December 2019 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran was working as a mill worker at a steel company from February 1964 to February 1994 until he retired from that job. See id. The Veteran did not provide any other full-time jobs that he had after the retirement. In a September 2006 letter, the Veteran’s physician S.C. indicated that the Veteran restores Corvettes and other cars after his retirement from the steel company, but there was no further indication that the car restoration was his new full-time job. Notably, the Veteran underwent a VA examination in October 2020 following the Board’s July 2020 remand order to obtain a medical opinion regarding any functional impacts of the Veteran’s service-connected prostate residuals. The October 2020 examiner noted that the Veteran has to frequently change his disposable undergarment every 1 to 2 hours during the day due to his functional urinary incontinence which is a residual from his prostate cancer. The Veteran reported during the examination that he has no hobbies due to his inability to go outside to interact with his friends and family due to his need to frequently change his disposable undergarments although he is able to do minimal yardwork and driving. As to his mental functioning, the examiner provided that the Veteran currently has no apparent decrease in ability to focus, impaired memory or altered attention level that is related to his service-connected conditions secondary to prostate cancer residuals. However, the examiner opined that the Veteran's functional urinary incontinence is consistent with a common residual of status post radical prostatectomy and subjective data is consistent with the Veteran having a very limited ability to be employable due to the frequency of his incontinence and inability to perform even the most mild strenuous activity. The examiner noted that the Veteran is unable to perform any heavy lifting of more than 10 pounds, pushing, pulling, or prolonged standing for more than 1 hour, or ambulating for more than 2 yards due to his increased frequency and functional urinary incontinence. The Board finds the October 2020 examiner competent and credible and assigns high probative weight to her opinion as she rendered her opinion after reviewing the Veteran’s records in conjunction with an in-person examination. The Board acknowledges that previous VA examiners did not indicate functional impact on the Veteran’s ability to work, although his voiding dysfunction and the need for using absorbent pads were consistently noted during the previous examinations. See e.g., May 2014 Male Reproductive System Conditions Disability Benefits Questionnaire (it was noted that the Veteran’s condition requires absorbent material changed more than 4 times per day; he has daytime voiding interval between two to three hours and nighttime awakening to void for 5 or more times). As it is unclear to the Board whether the conclusions of the previous VA examiners were based on a fully informed review of the Veteran’s education, training, and occupational history, the Board cannot assign more probative weight to their reports. Based on above and in light of the Veteran’s employment history of working as a mill worker for about 30 years, the Board resolves reasonable doubt in the Veteran’s favor and finds that his service-connected residuals of prostate cancer has been rendering him unable to secure and follow a substantially gainful occupation. Consequently, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s entitlement to TDIU is warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.