Citation Nr: 21015787 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-37 815 DATE: March 18, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for Peyronie’s disease with erectile dysfunction is remanded. INTRODUCTION The Veteran served on active duty from June 1963 to September 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. FINDING OF FACT The Veteran’s service-connected disabilities have precluded him from obtaining and maintaining substantial and gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.326, 3.340, 3.655, 4.16 REASONS AND BASES FOR FINDING AND CONCLUSION 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 has been granted for the Veteran’s major depressive disorder, recurrent moderate at 70 percent on and after September 23, 2013; bladder cancer status post transurethral resection bladder tumor at 40 percent on and after December 8, 2011; and Peyronie’s disease with erectile dysfunction at 20 percent on and after July 19, 2012. The Veteran asserts that the impact of his service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation. The Board notes that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38C.F.R. §4.16. On his October 2015 TDIU application, the Veteran stated that he retired from teaching, but did not provide a date. In an attached statement, the Veteran stated that he experiences frequent incontinence due to his service-connected bladder cancer. He described an inability to sleep longer than 2 hours at a time due to frequent need to use the restroom. The Veteran also described undergoing annual testing to ascertain whether his bladder cancer is dormant. Additionally, the Veteran described how his Peyronie’s disease is progressively worsening, causing pain, which affects his personal life and his marriage. During the February 2021 hearing, the Veteran testified about the worsening pain and other symptoms associated with Peyronie’s disease, as well as the frequency and severity of his incontinence resulting from his bladder cancer. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib, 733 F.3d 1350. Further, according to an October 2018 VA treatment report, a VA urologist characterized the Veteran’s Peyronie’s disease as “about the most extensive involvement that I have ever seen.” Additionally, in January 2018, the Veteran underwent a VA examination to assess the severity of his bladder cancer residuals. The examiner noted the Veteran’s daytime voiding frequency was every 1 to 2 hours, while his nighttime voiding frequency was every 3 to 4 hours. The Veteran endorsed marked hesitancy, slow stream, weak stream, and decreased force of stream. Given the evidence regarding the severity of the Veteran’s service-connected disabilities, and evidence indicating the Veteran’s functional limitations due to his disabilities, and in light of his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib, 733 F.3d 1350. REASONS FOR REMAND During the February 2021 hearing, the Veteran testified that he was scheduled for a surgical procedure to help correct his Peyronie’s disease. He also testified as to the presence of symptoms, such as headaches and “incredible pain,” associated with his Peyronie’s disease. The most recent VA examination to specifically address the severity of his Peyronie’s disease is dated in June 2013. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, “VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code.” Morgan, 31 Vet. App. at 167. In light of the Veteran’s testimony and the holding in Morgan, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current nature and severity of all manifestations of her service-connected his Peyronie’s disease, to specifically include his reports of headaches and pain with erection. Id. Consequently, a remand is warranted in order to provide the Veteran with a new VA examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected Peyronie’s disease. The examiner should provide a full description of the disability and all manifestations of the condition, to specifically include consideration and discussion of any neurological symptoms, headaches, abrasions/scars, and any other symptoms the Veteran asserts are associated with his Peyronie’s disease. The examiner must acknowledge and discuss the Veteran’s competent and credible reports of headaches and pain on erection and address whether they are related to the Veteran’s Peyronie’s disease. In responding to this inquiry, the examiner must assume as true that the Veteran has headache pain and pain on erection. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.