Citation Nr: 21031610 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 10-42 483 DATE: May 24, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected residuals of prostate cancer with urinary incontinence preclude the Veteran from securing or following a substantial gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a hearing before a Veterans Law Judge (VLJ) on January 24, 2012. A transcript of the hearing is of record. In February 2013, the Board remanded this matter for further evidentiary development. In January 2017 correspondence, the Veteran was informed that the VLJ who presided over the January 2012 hearing was no longer employed by the Board and was advised of the opportunity to testify at another hearing. The Veteran thereafter requested another Board hearing in February 2017. The Board, in March 2017, remanded the matter to schedule the Veteran for a hearing. The Board hearing having been provided, the directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a May 7, 2021, hearing held before the undersigned via videoconference from the Nashville, Tennessee, RO. This decision is being rendered prior to the production of a transcript of that hearing; given the favorable outcome, the Veteran is not prejudiced. A transcript will be associated with the claims file at a later date. 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 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). 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. The Veteran meets the threshold schedular criteria for TDIU for the entirety of the appeal period. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Residuals of prostate cancer with urinary incontinence are rated 60 percent disabling from January 27, 2006; posttraumatic stress disorder (PTSD) is rated 30 percent disabling from July 1, 2005; and erectile dysfunction is noncompensable from April 25, 2001. Therefore, the Veteran meets the schedular criteria for TDIU effective January 27, 2006; his claim was received in August 2008. 38 C.F.R. § 4.16(a). The Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected residuals of prostate cancer with urinary incontinence. The record reflects that the Veteran last worked on June 1, 1995 and was too disabled to work as of that date. This is more than a year prior to receipt of his claim for TDIU. He reported that he last worked in janitorial services. The Veteran indicated that he has a high school diploma, and no other education or training. The Veteran stated that he is no longer able to work due to the frequent need to change incontinence pads. At the May 2021 Board hearing, the Veteran testified that he uses four to six pads each day, and sometimes eight pads. The Veteran stated that he would require more frequent changing of pads if he was active. The Veteran's reports are corroborated and supported by the Veteran's treating VA physician who wrote a letter on his behalf in February 2012. The physician noted that the Veteran has urinary incontinence as a result of a radical prostatectomy for prostate cancer in 1999. The physician reported that the Veteran had a penile prothesis for impotence from the operation in 2000, and had a urinary sphincter for stress incontinence in 2007. It was stated that the Veteran still has stress incontinence as well as urge incontinence. The physician reported that the urge incontinence affects the Veteran daily and has resulted in the use of up to six diapers per day. The physician opined that the Veteran's disability would markedly impair the Veteran's chances for employment. While VA examiners of record did not find that the Veteran's residuals of prostate cancer with urinary incontinence rendered him totally occupationally and socially disabled, the United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). It is clear that the Veteran's disability prevents him from undertaking any employment which would require even minimal physical exertion, and the frequent changing of incontinence pads he relies upon to control his incontinence prevents him from engaging in less physical endeavors. As noted by the June 2013 VA examiner, the Veteran is unable to secure and maintain substantially gainful employment in physical occupations or his prior occupation due to stress incontinence. The Veteran does not have any transferrable skills. The smell associated with urinary incontinence and frequent need to change pads would be a distraction to both the Veteran and others in the workplace. He also noted he has to change clothes frequently. Because of his residuals of prostate cancer with urinary incontinence, the Veteran reported in his October 2010 VA Form 9 that he primarily stays at home, has given up on all of his hobbies, and struggles throughout the day alone. While he retains the ability to perform some occupational tasks, his prostate cancer with urinary incontinence would keep him from effectively functioning in substantially gainful employment. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, Associate 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.