Citation Nr: 21012222 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-01 087 DATE: March 3, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to November 1970. This matter comes before the Board on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to a TDIU is granted. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (2020). Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran contends that his service-connected prostate cancer residuals preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. See 12/26/2017 Correspondence; see also 04/16/2018 VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability. At the time the Veteran filed his intent to file in December 2017, his service-connected prostate cancer residuals were rated 60 percent disabling, thus meeting the criteria for schedular consideration of a TDIU. 38 C.F.R. § 4.16(a). At present, the Veteran is service-connected for prostate cancer residuals, 100 percent disabling since August 2020; left perirectal lymph node metastasis associated with prostate cancer residuals, 100 percent disabling since August 2020; other specified trauma- and stressor-related disorder, 50 percent disabling since August 2018; and erectile dysfunction associated with prostate cancer residuals, 0 percent disabling since January 2017. The evidence of record reflects that the Veteran completed four years of college. See 04/16/2018 VA 21-8940. From March 1968 to September 1995, the Veteran worked as an investigator with the U.S. Office of Personnel Management (OPM), then worked as a record searcher with U.S. Investigative Services (USIS) from April 2005 to March 2008. See id. He indicated that the day his disabilities affect full-time employment was January 30, 2017 and the date he became too disabled to work was March 20, 2017. The Veteran reflects that the Veteran has a 100 percent rating from January 30, 2017 thru September 30, 2017 for his prostate cancer residuals. As such, the Board will focus on the period from October 1, 2017. VA afforded the Veteran examinations for his prostate cancer residuals in July 2018. 07/16/2018 C&P Exam. He reported that following his October 2016 prostate cancer diagnosis and March 2017 prostatectomy, he began to experience urinary incontinence and erectile dysfunction. The July 2018 examiner reported that the Veteran had a voiding dysfunction causing urinary leakage, requiring absorbent materials which must be changed more than four times per day. Regarding functional impact, the examiner indicated that the need for frequent bathroom breaks and to change absorbent pads caused reduced productivity at work. See id. at 7. Thereafter, an additional VA medical examination report and opinion were obtained in September 2019. 09/04/2019 C&P Exam. The examination report indicated the Veteran's voiding dysfunction caused urinary leakage, requiring absorbent materials worn to be changed more than four times a day, and that daytime voiding occurred every one to two hours. The examiner reported, however, that the Veteran’s prostate cancer residuals did not impact his ability to work. See id. at 4. Finally, in November 2020, the Veteran underwent an additional VA medical examination. 11/19/2020 C&P Examination. The examiner indicated that the Veteran’s voiding dysfunction required absorbent materials to be worn and changed more than four times per day. The examiner indicated that there was no resulting functional impact on the Veteran’s ability to work. In addition to the VA medical opinions and examination reports of record, the Veteran indicated in his April 2018 VA 21-8940 that he was precluded from securing and following a substantially gainful occupation consistent with his education and work experience due to the fear of experiencing urinary incontinence, to include needing to change absorbent pads and be near a reliable restroom. See 04/16/2018 Veterans Application for Increased Compensation Based on Unemployability. The Veteran further reported that impotence and erectile dysfunction resulting from prostate cancer residuals caused him to experience depression, which also negatively impacted his ability to work. See id; see also 12/26/2017 Correspondence. In January 2020, the Veteran detailed the impact prostate cancer residuals had on his ability to work. See 01/04/2020 Correspondence. In this regard, he reported that he has to use and change absorbent pads multiple times per day, which precludes any full-time employment whereby contact with the public or production standards were a requirement. He further detailed that urinary frequency and nighttime voiding requires him to sleep on an absorbent pad and negatively impacts his sleep, and that when engaged in activity, incontinence can start without warning and leaving him without enough time to get to a restroom. See id. Upon review of the record, the Board finds that entitlement to a TDIU is warranted. The evidence of record indicates that the Veteran’s prostate cancer residuals is productive of occupational deficiencies due to urinary incontinence, urinary frequency, embarrassment, impaired sleep, and depression. While the November 2020 and September 2019 VA examiners reported that there was no functional impact associated with the Veteran’s prostate cancer residuals, the July 2018 examiner opined that the Veteran’s need for frequent bathroom breaks and to change absorbent pads caused reduced productivity at work. See 07/16/2018 C&P Exam. Likewise, the Veteran has reported that he has no control over his voiding, and often requires many trips to the bathroom each hour to change his absorbent pads, as he experiences urinary accidents without warning when engaged in even light physical activity such as yardwork. The Veteran also indicated that the possibility of having a urinary accident while in public causes him stress, embarrassment, and depression. The Board has no reason to doubt the credibility of the Veteran’s statements. Further, the Board observes that the Veteran’s reported symptoms have remained constant throughout the course of his appeal. While sedentary employment has not been ruled out by a VA examiner, the Board is unaware of any sedentary jobs that the Veteran could perform given his urinary incontinence, as a person working in investigations or records searching would require conducting in-person interviews, traveling to different locations where records are stored, and adhering to performance production standards. See 01/04/2020 Correspondence. In light of the Veteran's occupational background and the functional limitations described, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of his service-connected prostate cancer residuals. Accordingly, the Board finds that entitlement to a TDIU is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.