Citation Nr: 21029012 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-09 237 DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Marine Corps for 38 days from January 1974 to February 1974. Entitlement to TDIU 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 totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's service-connected disabilities include adjustment disorder with mixed anxiety and depressed mood and posttraumatic stress disorder (PTSD) associated with left varicocele, rated as 50 percent disabling; left varicocele, rated as noncompensably disabling; and erectile dysfunction, also rated as noncompensably disabling. Thus, the Veteran does not meet the schedular criteria for TDIU at any time on appeal. Thus, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). See Bowling, 15 Vet. App. at 1. For a Veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. 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 Board finds no evidence of record suggesting that the Veteran's case is outside the norm requiring extraschedular consideration. In reaching that conclusion, the Board acknowledges that the Veteran has not worked during the appellate time period. The Veteran's 2012 disability compensation benefits determination for the Social Security Administration discussed numerous disabilities affecting his ability to work but did not mention mental health problems. He was granted disability benefits for ankle disabilities and obesity. The Veteran was afforded a VA examination in July 2012. The Veteran had a chronic left varicocele. He was not taking continuous medication for the condition and did not have an orchiectomy. The Veteran did not have a voiding dysfunction, urine leakage, the need for an appliance, urinary frequency, obstructed voiding, or recurrent symptomatic urinary tract or kidney infections. The left varicocele was noted to be tender. The associated tenderness affected the Veteran's ability to work. The Veteran was afforded another examination in August 2012. The Veteran reported having been bothered by the chronically enlarged and tender left testicle since 1974. For many years he had run his own heavy equipment operation and was able to avoid activities that caused pain. Since 2009, the Veteran had been unemployed and unable to work in the field. There was no orchiectomy or voiding dysfunction. There was a history of recurrent symptomatic urinary tract infections of unknown etiology. There was a history of erectile dysfunction of unknown etiology. The Veteran described prominent vascularity and moderate tenderness to palpation of the left testicle. He stated that the discomfort in the testicle made it impossible to sit, walk, or move for any length of time. A September 2012 Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire (DBQ) diagnosed a varicocele with psychosocial and environmental problems of anxiety and insomnia. Specifically, the only noted mental health symptom the Veteran had was anxiety. The examiner indicated that the anxiety was caused by unemployability leading to insomnia. He had been unable to work since 2009 due to pain, specifically severe groin pain that was worsened with activity. The Veteran reported that he could not sit, stand, or walk for more than 10 consecutive minutes. There was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a September 2012 statement, the Veteran indicated that he had been unable to work since 2009 and "had reached the end of my endurance to this left varicocele pain." He stated that he could not work in the heavy machinery business. "My days' work consisted of 8-10 hour days sitting in this equipment with the heat and sweat adding to the pain with this injury. I am out of work because of this service-connected injury." In his December 2012 application for TDIU the Veteran indicated that he had been self-employed as a heavy equipment operator and that he had last worked in January 2009. He closed his business at that time due to his varicocele and anxiety. In a December 2012 statement, the Veteran stated that he had endured physical limitations due to his left varicocele that "aided to my business folding because I was no longer able to operate equipment and could not afford to hire individuals. The combination of emotional stress and anxiety coupled with the physical limitations has attributed to the loss of my home." A December 2012 statement from the Veteran's ex-wife indicated that she had known the Veteran from 1980 and they had married in 1983. The Veteran, "displayed problems with being able to focus on tasks and it interfered with his ability to work consistently. He had held different positions but it was never for long periods of time. After a few years of marriage, I was ready to start a family. We had trouble conceiving and due to the discomfort [the Veteran] was having it took several years. [The Veteran] had started an excavation business of his own. He needed to hire individuals to run equipment because he would experience severe pain and discomfort in his mid-region if he operated equipment for any length of time. This definitely impacted our ability to survive financially as well as emotionally." An April 2013 letter from the Veteran's primary care physician indicated that he had been treating the Veteran since December 2000 and that he had "a history of severe anxiety aggravated by paying for varicocele that led to his having to close his business operating heavy machinery, morbid obesity, diabetes, hyperlipidemia, hypertension, and gastroesophageal reflux disease." The Veteran was afforded a VA examination in April 2013. The examiner diagnosed adjustment disorder with anxiety. The disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran had closed his excavation business in 2008 after 30 years due to the poor economy because he could no longer pay his employees and was not able to run the heavy equipment himself due to testicular problems. The Veteran frequently felt nervous and his anxiety had worsened significantly since he lost his business and the resulting financial stress, although he had always been an anxious person. The Veteran also worried a lot about his sexual performance and his difficulty maintaining an erection since his claimed in-service injury. The anxiety first became a problem in the late 1980s when he worried about needing help to run his excavation business due to his testicular problems, but did not require treatment until a few years previously. The examiner concluded that the Veteran's anxiety disorder was primarily related to his unemployment and resulting financial stressors. While this may be indirectly related to his testicular condition, as the Veteran stated he was unable to work because of his testicular pain, if he were financially stable, it was unlikely that his anxiety symptoms would have worsened to their current level. Prior to losing his business, the Veteran experienced anxiety symptoms related to his testicular pain and erectile dysfunction, but at that time these symptoms were not severe enough to meet the criteria for a mental health disorder. It was not until the Veteran closed his business and no longer had an income that his anxiety symptoms worsened to the point that they began to interfere with his functioning and he sought treatment. In September 2013, the Veteran stated that he tried to walk daily, but due to pain in the testicle he had some difficulty. In a July 2014 VA treatment record, the Veteran reported that he had fallen off a ladder in February 2014 injuring his right shoulder. The Veteran subsequently tripped and fell in April 2014. In a September 2014 statement, the Veteran alleged that he had experienced multiple falls due to the pain from his varicocele. In a September 2014 VA treatment record the Veteran attributed his April 2014 fall to have occurred due to experiencing sharp pain in the left testicle. He indicated that he had been experiencing the short pains intermittently since 1976. An October 2014 VA treatment record included the Veteran's report that he experienced severe sharp pain in the left testicle caused him to fall in March / April 2014. In February 2015, the Veteran reported a lot of tenderness and pain in his scrotum related to his left varicocele and wanted to know if it could be repaired and the process for such a repair. The physician told the Veteran that the repair would require an inguinal incision and would be done as an outpatient procedure. Although there was no guarantee that it would relieve some of the pain the physician thought that it would have that effect. A March 2015 letter from a private physician indicated that the Veteran's, "left varicocele goes into muscle spasm that has the ability to make him fall, and he has done this on numerous occasions already." During his September 2015 Board hearing the Veteran reiterated that his varicocele caused muscle spasms that in turn caused him to fall. He also described increasing pain over the years from the bouncing associated with running a bulldozer. A September 2015 private psychological evaluation is of record. The Veteran stated that he was hospitalized in 2012 for anxiety and insomnia related to his inability to work due to his varicocele condition. The Veteran currently did not socialize much because, "He is afraid that people will pity him for his condition or assume he is sexually [impotent] and 'crippled.' The Veteran continued to feel that his manhood is somehow lessoned or injured by his varicocele, and statements from two of his wives document that this distress has substantially impacted his social and interpersonal relationships for over 35 years." The examiner disagreed with the VA examiner's assessment that the anxiety disorder primarily was the result of the Veteran's financial situation. Specifically, the Veteran "appears genuinely depressed and distressed by the loss of his occupation and business. This distress is not simply due to a change in finances. The business represented a way to still feel competent and fulfill the obligations of [the Veteran's] social roles as father and husband, as he believed them to be. With the loss of his business, [the Veteran's] adjustment disorder is exacerbated beyond its usual course, as he does not have natural supports nor access to the intrinsic coping mechanisms work provided for him. Further, he has lost his day structure, and therefore now has time to ruminate on these losses and what he believes are his failures as a man." The examiner diagnosed adjustment disorder with mixed anxiety and depressed mood. In March 2018, the Veteran underwent a VA examination. The Veteran was not on continuous medication, had not had an orchiectomy, and had no renal dysfunction. There was voiding dysfunction, which was unrelated to the left varicocele. There was erectile dysfunction that was multifactorial in etiology, with a history that was pertinent for metabolic syndrome. There was no history of chronic epididymitis, epididymo-orchitis, or prostatitis. The left varicocele was tender according to the Veteran. The examiner indicated that the Veteran's reproductive system conditions did not impact his ability to work. In May 2018, the Veteran reported that his depressive symptoms made it extremely difficult to do his work, take care of things at home, or get along with others. The Veteran was afforded yet another VA examination in September 2018. The examiner diagnosed erectile dysfunction, urethral stricture, and varicocele. The Veteran had ongoing brief shooting pains in the left groin and inner thigh. He attributed falls to this pain and stated that the first pain-related fall occurred 30 years previously. In the past year, he had fallen 3 times. The Veteran also attributed some of his gait issues to degenerative joint disease of the hip and cervical spine disease. The Veteran did not wear underwear because of the discomfort it caused in the scrotum and in the last 5 years the scrotum had intermittently turned blue, which resolved on its own. The Veteran also had urethral stricture, diagnosed in 2000, with recurrent urinary tract infections and some urinary leakage. The Veteran had undergone numerous urethral dilations over the years. The Veteran also had a long history of erectile dysfunction due to scrotal / groin pain, related anxiety, and decreased desire as a result. The Veteran's current wife reported that it took a long time for an erection to be achieved. The Veteran had not tried any medications for the erectile dysfunction and complained of retrograde ejaculations. The Veteran still maintained the ability to engage in sexual intercourse. Examination otherwise was unchanged from prior examinations. As to the effect on occupational function, the Veteran described scrotal pain limiting physical activity and that his difficulty using heavy equipment was one of the reasons for his difficulties continuing to operate his excavating company. The Veteran was able to drive and perform sitting activities. The Veteran reportedly stopped working in 2012 and was independent in activities of daily living. The examiner concluded that the erectile dysfunction was related to the varicocele, but that the urethral stricture was less likely than not related to the varicocele. The rationale for the urethral stricture noted that the varicocele would not be expected to affect the urinary tract itself and the recurrent strictures were considered to be of separate etiology without causation or aggravation from the varicocele. During his October 2018 Board hearing, the Veteran reported that he had testicular pain "all the time" and that he could not wear underwear due to the tenderness if anything came into contact with the left testicle area. In May 2019, the Veteran reported that he spent half his time in Florida taking care of his father-in-law who had dementia. Another May 2019 record indicated that the Veteran had a 5 to 6 year history of right groin and buttock pain. He had pain with virtually every step and walked with a limp. The Veteran could walk about one city block before he had to stop to rest. He had difficulty putting on his right sock. The examiner diagnosed right hip end-stage osteoarthritis. Thus, the evidence indicates that the Veteran closed his excavation business due to economic considerations, specifically a slowing economy. The evidence indicates that he had been hiring others to operate the machinery for a period of time prior to shutting down his business and it was more due to a slowing business than having to hire others to operate the equipment because the Veteran could no longer sit and operate equipment for extended periods of time. As such, there is nothing to suggest that had the economy continued at a strong pace his service-connected disabilities would have required that his business close. The evidence clearly shows that the Veteran's unemployment resulted in increased anxiety and other mental health symptoms and that while he was working his mental health symptoms did not significantly affect his ability to function in a work environment. Thus, the sole service-connected disability affecting his employment is his varicocele. The varicocele results in intermittent pain, including spasms that have caused falls. As such, the Veteran would have difficulty operating excavation equipment for extended periods of time. That said, and as discussed above, the varicocele is not shown to affect the Veteran's ability to run his excavation business when there is sufficient business due to economic conditions. Further, the Veteran does have experience in general business operations that do not require operation of heavy equipment such as managing contracts, scheduling work, ordering materials, and managing employees including payroll. He is also able to drive his personal vehicle suggesting that employment driving passenger vehicles is possible and he is able to travel and care for an elderly relative. (continued next page) The Board acknowledges that the Veteran's service-connected disability has some effect on his occupational impairment. However, the 50 percent schedular rating recognizes the industrial or commercial impairment resulting from his disabilities. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans' Appeals H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.