Citation Nr: 21031275 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-27 330 DATE: May 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, for substitution purposes, is denied. FINDING OF FACT Prior to his death, the Veteran was not precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for the assignment of a TDIU due to service-connected disabilities, for substitution purposes, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1961 to July 1982 as an administrative technician; he retired at the rank of master sergeant. The Veteran died in September 2020. The appellant claims as the Veteran's surviving spouse. The appellant has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claim. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied the Veteran's claim for entitlement to TDIU. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Joint Motion for Remand (JMR), the parties agreed that the Board did not provide an adequate statement of reasons and bases for denying the Veteran's claim. The Court vacated the Board's denial and remanded the matter for further adjudication. 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. See 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." See 38 C.F.R. § § 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. § § 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, for substitution purposes The Veteran, through his representative, contended that he was entitled to a TDIU rating due to his service-connected disabilities. "Due to the nature of the Veteran's disabilities he is unable to work. There are very few conceivable occupations that would enable the Veteran to be employable." See August 2017 Notice of Disagreement. There was no further explanation provided. The Veteran was service-connected for residuals of prostate cancer, rated at 60 percent disabling; diabetes mellitus, rated as 20 percent disabling; residual scars associated with prostatectomy, rated as noncompensable. The Veteran's combined rating of 70 percent met the requirements under 38 C.F.R. § 4.16(a). On the Veteran's May 2016 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), he reported that he last worked in 2011 for the National Geospatial Intelligence Agency (NGA) in the capacity of information technologist. He had worked for NGA for 24 years. He reported that was unable to work due to his prostate cancer. His highest level of education is a high school diploma. He indicated that he expected to receive disability retirement benefits. The Board will address the Veteran's limitations due to his service-connected disabilities. There is evidence that the Veteran's service-connected diabetes required him to comply with a restricted diet and take oral hypoglycemic agents. There is no evidence that his activities are regulated or that he suffered from any other complications. There is no evidence that his service-connected scar caused any symptoms. The Board credits the evidence reflecting the severity of the Veteran's service-connected diabetes and scar. The Board finds that neither the Veteran's diabetes nor his scar caused any symptoms individually or collectively which would have prevented the Veteran from obtaining and sustaining gainful employment. In that regard, the Veteran reported that he worked on a computer. His work on a computer was not affected by his restricted diet or medication to regulate his diabetes. A May 2016 prostate cancer disability benefits questionnaire indicates that the Veteran's residuals of prostate cancer caused mild to moderate urinary incontinence. Dr. J.P.L. noted that the Veteran's incontinence impacted his ability to work. He did not specify to what degree it was affected work nor did he say that the Veteran was precluded from working. The Veteran was afforded a VA prostate examination in May 2016 where the examiner noted that the Veteran experienced urinary leakage secondary to his radical prostatectomy. The examiner noted that the Veteran's urine leakage required the use of absorbent material which must be changed 2 to 4 times per day. The Veteran was afforded another VA examination in March 2017 where the examiner noted that the Veteran suffered from a voiding dysfunction that caused urine leakage. The examiner noted that the Veteran changed his Depends 5 to 6 times during waking hours, on average, and wore a Depends to bed at night. The Veteran reported that the voiding dysfunction caused increased urinary frequency daytime voiding interval between 1 and 2 hours. The Veteran's spouse stated that the Veteran's service-connected residuals of prostate cancer required him to use absorbent materials 5 to 6 times a day during a 24-hour period. See February 2018 Notice of Disagreement; December 2016 correspondence. Based on the foregoing, the Board finds that the Veteran's voiding dysfunction that caused urine leakage did not preclude him from obtaining and maintaining substantially gainful employment. Frequent urine leakage which the Veteran maintained with the use of Depends does not preclude employment. Although certainly not ideal, having to frequently change absorbent materials several times during an average 8-hour workday does not equate to an inability to obtain and sustain gainful employment. In fact, there are many people in the workforce male or female who have to manage urine leakage or feminine hygiene. While the Veteran reported that he was unable to hold a job due to problems related to changing absorbent material or the frequency in which he needed to use the restroom, the Board finds that these impacts did not result in the Veteran being unable to secure or follow a substantially gainful occupation. Although frequent rest room breaks would be inconvenient and possibly mildly disruptive, the Veteran's service-connected disabilities did not prevent him from leaving the home and functioning in an office or administrative environment with access to the facilities. The Board that there is insufficient evidence to show that the frequency in which the Veteran's absorbent materials needed to be changed was incompatible with and could be managed in an occupational setting where restroom facilities are available. Moreover, the nature of his occupation is such that it could be done effectively by telework from home. There is nothing to say that the Veteran would have been precluded from attending to his urine leakage needs while providing internet technology services to an employer. Further, the Veteran's 60 percent rating for his residuals of prostate cancer accounted for the considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Aside from needing to frequently use the bathroom or change absorbent materials, neither the Veteran nor his representative explained why the Veteran's prostate cancer residuals would preclude him from gainful employment. The September 2020 JMR stated that the Board "failed to explain how [the Veteran] is able to secure substantially gainful employment in light of his educational and vocational history, reflecting that he last worked in 2011 and only has a high school diploma." Here, the Veteran's 24-year history with NGA as an employee who was skilled in using a computer made the Veteran capable of office work. His residuals of prostate cancer (and other service-connected disabilities) did not infringe on the Veteran's ability to use a computer a task for which he was skilled. This is not a case where the Veteran has been only skilled in physically laborious work and the Board is suggesting that he is now capable of nonphysical work. Rather, the Veteran was already skilled in an office environment and his service-connected disabilities did not preclude him from continuing at a job in that same field. Therefore, the Board finds that it has adequately addressed the issue of the Veteran's specific ability to complete nonphysical work. Additionally, there is nothing in the claims file which indicates that the Veteran would have been unable to answer phone calls or work as a greeter or cashier at a retail store. The foregoing are just examples of the type of positions that he could have performed and do not appear to have been precluded by his service-connected disabilities. The Board acknowledges that the Veteran's service-connected disabilities had some effect on his occupational impairment. However, the 70 percent schedular ratings recognize the industrial or commercial impairment resulting from his disabilities. It cannot be ignored that the Veteran suffered from nonservice-connected moderate Alzheimer's dementia disease which most certainly affects his ability to maintain and sustain gainful employment. Most of the probative evidence regarding the severity of the Veteran's service-connected disabilities comes from his spouse who provides for his care because the Veteran is not a reliable historian. The Veteran's Alzheimer's disease causes various symptoms, which include impairment of judgment, memory loss and confusion about reality. These types of symptoms would likely preclude the Veteran from sustaining gainful employment including in the field of nonphysical work for which he has a history of working. However, the Board may not consider the Veteran's nonservice-connected disabilities in its TDIU analysis. Although on his May 2016 VA Form 21-8940, the Veteran reported that he expected to receive disability retirement benefits, it does not appear that he receives disability benefits through the Social Security Administration (SSA). SSA inquiries conducted by the RO do not reflect that the Veteran received SSA disability benefits. See June and October 2016 inquiries. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination). Therefore, the Board finds that there any no relevant outstanding government records. In summary, while there is evidence that the Veteran was unemployed, the evidence of record indicates that his unemployment was not due to his service-connected disabilities. Therefore, entitlement to a TDIU is not warranted; the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.