Citation Nr: 21011332 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-08 340 DATE: March 1, 2021 ORDER The appeal regarding entitlement to service connection for bilateral hearing loss is dismissed. The appeal regarding entitlement to service connection for tinnitus is dismissed. The appeal regarding entitlement to service connection for hypertension is dismissed. From June 14, 2011, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. In a December 2020 appellate brief, the Veteran’s representative indicated that if TDIU was granted from June 14, 2011, all remaining claims were to be considered withdrawn. 2. From June 14, 2011, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of entitlement to service connection for tinnitus are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to service connection for hypertension, to include as secondary to prostate cancer, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. From June 14, 2011, the criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to December 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision. In a January 2019 decision, the Board denied service connection for bilateral hearing loss, tinnitus, hypertension, a scar related to radical prostatectomy, and for entitlement to TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in an October 2019 order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), vacated the Board’s decision as to the appealed issues of service connection for bilateral hearing loss, tinnitus, hypertension, and entitlement to TDIU, and remanded the case for further development and readjudication consistent with the JMPR. In a December 2020 appellate brief, initial review of new evidence by the agency of original jurisdiction (AOJ) was waived. See 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1305(c); Disabled Am. Veterans v. Sec’y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by an authorized representative. 38 C.F.R. § 19.55. 1. Service connection for bilateral hearing loss. 2. Service connection for tinnitus. 3. Service connection for hypertension, to include as secondary to prostate cancer. In a In a December 2020 appellate brief, the Veteran’s representative indicated that if TDIU was granted from June 14, 2011, all remaining claims on appeal were to be considered withdrawn. As discussed in detail below, the Board grants TDIU from June 14, 2011 in the instant decision. Consequently, there remain no allegations of error of fact or law for appellate consideration as to the issues of service connection for hearing loss, tinnitus, and hypertension, and the Board does not have jurisdiction to review the appeals of these issues. Accordingly, they are dismissed. TDIU When the schedular rating is less than total, a total disability rating for compensation may be assigned, when in the judgement of the rating agency, the claimant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Such assignment may be assigned if there is only one disability ratable at 60 percent or more or if there are two or more disabilities such that at least one disability is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purpose of one 60 percent disability, in pertinent part, disabilities affecting a single body system will be considered as one disability. 38 C.F.R. § 4.16(a)(3). The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.169(a); see also Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Feb. 24, 2021). Marginal employment may also be held to exist, on a facts-found basis (includes, but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Hence, “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). To be granted TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (noting that the level of education is a factor in deciding employability). The ultimate issue of whether TDIU should be awarded is not a medical issue but, rather, is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although pursuant to 38 C.F.R. § 4.15 VA must give full consideration to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). To that end, the Court has interpreted the term “unable to secure or follow a substantially gainful occupation” as containing two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component “means an occupation earning more than marginal income (outside of a protected environment).” Id. The noneconomic component requires consideration of the veteran’s ability to secure or follow such employment. Id. Relevant factors for the adjudicator’s consideration include whether the veteran has physical ability to perform the occupation at issue and whether the veteran has the mental ability to perform the occupation at issue along with the veteran’s history, education, skill, and training. Id. 4. TDIU The Veteran seeks entitlement to TDIU from June 14, 2011, contending that the severity of his urinary incontinence associated with his service-connected prostate cancer treatment renders him unable to secure or follow a substantially gainful occupation. At the time of his June 2011 claim for TDIU, the Veteran was service-connected for prostate cancer, status post radical suprapubic prostatectomy, evaluated as 60 percent disabling; erectile dysfunction associated with prostate cancer, status post radical suprapubic prostatectomy, evaluated as noncompensable; and scar, status post radical suprapubic prostatectomy associated with prostate cancer, evaluated as noncompensable. The combined disability rating was 60 percent effective July 26, 2010, and, consequently, the Veteran met the schedular requirements for TDIU. 38 C.F.R. § 4.16(a)(3). The Board finds that the probative evidence of record establishes that TDIU is warranted. On his June 14, 2011, application for TDIU, the Veteran reported that he last worked full-time in June 2010, when he was a train car inspector for a railroad, and that he left his employment due to disability from residuals of prostate cancer. He stated that he had difficulty being around other people because he was afraid that he would have a urinary accident and that others would smell the urine. He also stated that he felt that no employer would “put up with [him] running to the bathroom all the time.” See also VA Form 21-4192 Request for Employment Information provided by former employer. Social Security Administration (SSA) records reveal that the Veteran last had taxable earnings for SSA purposes in 2011 of $5,282. In October 2012, the Veteran reported that he suffered from continual urinary leakage, for which an appliance had been implanted, and he changed “absorbent undergarments at least once every hour.” Statement in Support of Claim; see also December 2010 & July 2012 VA examination reports. The implanted appliance required that the Veteran manually depress the “sphincter” device to enable relaxation so he could void, which he did six or seven times per day. It was noted during a July 2012 VA examination, that in addition to needing to be in close proximity to a bathroom during work, the Veteran had lost 20 pounds since surgery and “to some extent overall strength.” The examiner stated that “unrestricted heavy lifting could be disruptive” to the artificial sphincter at the bladder outlet. It was noted that during his 30-plus years working for the railroad the Veteran had used large tools and expended considerable physical effort, which was no longer feasible. The Veteran’s primary care physician of ten years stated that the Veteran reported urination every four hours during the day and every two hours during the night along with “frequent episodes of urgency incontinence,” which necessitated the “continual use of [absorbent material].” It was opined that, due to this degree of urinary frequency and incontinence, the Veteran was unable to maintain substantially gainful employment. March 2014 Medical Treatment Record. This opinion was reiterated by another of the Veteran’s providers, Dr. L.D.G. See June 2014 Medical Treatment Record. In October 2014, the artificial urinary sphincter was removed with washout. Urinary incontinence continued to be recorded through 2015. In March 2016, the Veteran’s primary care physician noted that he had not seen his urologist in some time and that due to ongoing urinary leakage he was using numerous pads. A prescription for six adult diapers per day was entered, which was renewed in September 2016. In November 2016, a new implant was placed, and, due to mild persistent leakage, the prescription for diapers was continued through 2017. In February 2018, the Veteran presented to the hospital complaining of pain after which it was determined that there was erosion of the artificial urinary sphincter; it was removed, and the Veteran was discharged home with a catheter. During his September 2018 wellness visit, the Veteran reported continued frequency and urinary incontinence. Continued stress incontinence was reported during 2019 and six adult diapers per day continued to be prescribed. In February 2020, it was noted that the Veteran was using pads, and his prescription was renewed in May 2020. The Veteran presented a November 2020 report of vocational assessment, which was based upon review of the claims file and an interview. It was noted that the Veteran completed eighth grade and obtained a GED during service; he did not finish an auto mechanic training course. It was noted that he had worked for the railroad for more than 30 years, until June 2010. A description of the job was provided from the Dictionary of Occupational Titles. It was noted that the railyard where the Veteran was employed was comprised of 840 acres, and there were no accessible facilities for going to the bathroom or changing clothing. The Veteran reported carrying tools weighing 50 pounds. It was noted that a clean well-groomed, professional appearance was required as the Veteran’s job entailed interacting directly with the client and the public. The specialist opined that wet clothing and undergarments would not be acceptable in the Veteran’s former job. It was noted that research as to accommodations revealed that no feasible options to accommodate the Veteran’s level of symptoms he had experienced since 2010 had been found. In terms of alternative employment, it was opined that the Veteran “would certainly be precluded from any form of customer facing work due to his need for frequent bathroom breaks and chronic leakage. It was stated that the sort of tailored environment required to accommodate the Veteran’s symptomatology are “rarely available for the most qualified candidates for employment, and the Veteran’s educational level (a GED) and vocational history almost exclusively in railroad work do not readily translate to light” occupational environments. It was concluded that, since 2010, due to his residuals of prostate cancer, chronic urinary incontinence, frequent voiding, and diminished physical strength the Veteran was rendered unemployable. As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Since the nature of the Veteran’s symptoms of his service-connected disabilities and the impact on his employability were within his personal knowledge, the Board finds his statements to be competent. See 38 C.F.R. § 3.159(a)(2); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Board finds his statements credible and highly probative. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that lay evidence is credible when it is internally consistent and consistent with other evidence of record). Addressing the economic component of TDIU, the probative lay and medical evidence establishes that the Veteran stopped working in 2010 due to urinary frequency, urinary incontinence, and reduced physical stamina, which occurred after diagnosis and treatment of service-connected prostate cancer. SSA records confirm that he has not earned any relevant income since that time. Addressing the noneconomic component of TDIU, the Veteran has qualification equivalent to a high school diploma and several decades of experience as a railroad train car inspector. His only other formal study was the start of vocational training as an auto-diesel mechanic in approximately 1973. See September 1973 Statement in Support of Claim. The vocational specialist indicated that the Veteran’s education level and experience is not amenable to transitioning to an office-oriented workplace. The Veteran has not raised and the record does not suggest that he does not have the mental ability to participate in the workforce. The probative lay and medical evidence establishes that physical ability is the Veteran’s primary limitation. Since the Veteran’s prostatectomy, he has continuously experienced urinary leakage, which has not been successfully controlled by the implantation of artificial sphincters. The presence of these implants has necessitated restrictions in the Veteran’s physical activities, such as bending, squatting, and lifting. Furthermore, several implants have failed and required removal. Due to the ineffectiveness of the implants, the Veteran has continually needed to rely upon absorbent material to keep his clothes from becoming soiled; the Board notes that for numerous years adult diapers were medically prescribed at the level of six per day. The Veteran reported being self-conscious about his urinary leakage (being concerned about smell and soiled garments being seen) and that he needed to use a rest room on a frequent basis during the day. The vocational specialist confirmed that there were no reasonable accommodations available to enable the Veteran to continue in his established employment capacity and that, even if he retrained in a new field with a more appropriate environment, he would not be competitive for those jobs. It was noted that, in addition to the impact of persistent urinary leakage, the Veteran also lost stamina after his prostate surgery thereby further limiting his options for employment. The July 2012 VA examiner, two of the Veteran’s treating physicians in 2014, and the vocational specialist in 2020 all opined in a manner consistent with finding that the Veteran’s urinary leakage associated with his service-connected prostate cancer treatment rendered him physically unable to perform the activities of a substantially gainful occupation. There is no opinion to the contrary. Based upon the foregoing, the Board finds that the probative evidence shows that from June 14, 2011, the Veteran’s symptoms associated with his service-connected disabilities are of such severity that he is rendered unable to secure or follow a substantially gainful occupation. Bryan v. West, 13 Vet. App. 482, 488–89 (2000) (stating that the Board’s decision must enable the claimant to understand the precise basis for the decision as well as to facilitate judicial review); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). (Continued on the next page)   Consequently, the Board finds that TDIU is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.