Citation Nr: 21039857 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-10 280 DATE: July 1, 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 United States Marine Corps from April 1966 to July 1968 including service in the Republic of Vietnam. He was awarded the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 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. For the applicable appellate time period, the Veteran's service-connected disabilities included posttraumatic stress disorder (PTSD), rated as 50 percent disabling; adenocarcinoma of the prostate, rated as 40 percent disabling; degenerative disc disease of the lumbar spine, rated as 20 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; posttraumatic pericarditis with enlarged heart, rated as noncompensably disabling; and erectile dysfunction, rated as noncompensably disabling. The Veteran's combined disability rating is 80 percent. Thus, the Veteran meets the criteria for TDIU for the entire appellate time period. As such, the Board must consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. 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 that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. In his December 2013 claim for TDIU, the Veteran indicated that he had last worked in August 2007 and had worked for the Federal government as an equipment technician. He stated that his PTSD and prostate cancer prevented him from working. The Veteran underwent a VA mental health examination in January 2014. The mental health problems 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. Sometimes he wanted to be alone and other times he wanted to be with someone with whom he felt comfortable. He stated that he retired in August 2007 because "my back was really killing me and I'd just got back from Iraq and I had a chance to retire early with no penalties." He had not worked since retiring. Mental health symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss; circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Veteran also reported ongoing problems with anger and concentration. A January 2014 VA prostate examination report documented the Veteran's ongoing incontinence issues. The Veteran required absorbent material that had to be changed 2 to 4 times per day, daytime voiding intervals between 2 to 3 hours and nighttime awakening to void 3 to 4 times. The prostate cancer residuals did not impact the Veteran's ability to work. A March 2015 VA treatment record documented the Veteran's report that he had been unemployed since 2007 secondary to back pain and receipt of a good retirement package. He was employed as a machinist (punch press and shear operator) as well as in central receiving and manufacturing at a government facility. In May 2015, the Veteran reported a past work history including punch press operator, forklift operator, in fence construction, and United Van sales. The Veteran later worked for 22 years at Rock Island Arsenal cleaning machines, sweeping floors, and as an equipment installer. A January 2017 letter from the Veteran's treating VA psychologist stated, "Based on his self-report and observations made during the encounters, it is my clinical opinion that due to his service connected condition (PTSD), he is not able to maintain employment, including sedentary employment. His symptoms are persistent and longstanding and chronic/permanent." In March 2017, the Veteran underwent a VA prostate examination. The Veteran reported erectile dysfunction and urinary incontinence since his 2009 radical prostatectomy. There was voiding dysfunction that required absorbent material that had to be changed more than 4 times per day. There was increased urinary frequency with daytime voiding interval less than 1 hour and nighttime awakening to void 5 or more times. The prostate cancer residuals would impact his ability to work in that he must stay near a restroom. The Veteran was afforded a VA back examination in March 2017. The Veteran denied flare-ups of back pain, but had functional loss due to limited lifting, bending, sitting, standing, and walking. Thoracolumbar range of motion testing showed forward flexion to 80 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. There was no further loss of motion with repetitive motion testing. There was no guarding, muscle spasm, or muscle atrophy. Muscle strength, sensation, and reflexes were normal. The back disability would impact the Veteran's ability to work due to limited lifting, bending, sitting, standing, and walking. The Veteran underwent a VA PTSD examination in March 2017. The examiner diagnosed PTSD, major depressive disorder, and unspecified mild neurocognitive disorder. The examiner concluded that the Veteran's mental health disorders resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported having "Veteran friends" at both his living locations in Illinois and Florida. He stated that he loved playing cards, including card games in the park. Although he indicated that he did not socialize, the Veteran did feel comfortable around his veteran friends. The Veteran indicated that he "would like to get out" but that his only social interaction was riding his motorcycle with some others and then going to breakfast. The Veteran also was in contact with his 2 brothers and that they "tolerated" him. In addition, on an annual basis the Veteran went on a 13-day trip to the Vietnam Veterans Memorial wall. The Veteran rode his motorcycle daily and in February 2016 he organized a cross-country motorcycle ride with some other veterans. He occasionally went to the American Legion. Mental health symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss; flattened affect; circumstantial, circumlocutory or stereotyped speech; difficulty in understanding complex commands, disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The examiner noted that despite the Veteran's complaints about memory, it was consistently above the 90th percentile for those of similar age and education. Visual memory was slightly less intact but were attributable to emotional distress and misinterpretation of the normal aging process. The examining psychologist concluded, "Based solely on the Veteran[']s Service Connected PTSD he would be able to manage the duties associated with physical and sedentary employment with accommodation. For instance, due to his short term memory issues and tangential thought process he would benefit from tasks that have few steps and are repetitive. Due to his irritability, he would [] benefit from a position that requires minimal interaction with the general public. Due to his difficulty with concentration, he would benefit from frequent positive reinforcement to keep on task." An October 2020 letter from a readjustment counselor at the Vet Center indicated that the Veteran attended regular individual counseling sessions and had been experiencing anxiety, hypervigilance, intrusive thoughts and recollections, and lack of concentration. A March 2021 VA physical therapy treatment record for back pain noted issues when sitting, standing, or walking for prolonged periods. Recently the Veteran had been using a cane due to balance issues. Sometimes when standing up he had to catch his balance and occasionally bumped into walls when turning or going through doorways. The Veteran denied any bowel or bladder issues. The Veteran was independent in his activities of daily living, but did have increased pain and difficulty with activities. The Veteran reported experiencing pain with activities around the home, but that he lived alone so he had to do the activities. During his April 2021 Board hearing, the Veteran testified that he was unable to work due to a combination of his PTSD, residuals of prostate cancer, and right leg radiculopathy. The Veteran discussed ongoing problems with confusion, such as how to get out of a parking lot, and generally with following directions. He also had problems with neuropathy in the legs that was painful. He had intermittent problems with unexpected flow during urination and wore absorbent pads because he did not "want to take a chance on having an accident." He also experienced increased urinary frequency. In an April 2021 statement, the Veteran's representative argued that the Veteran had been unable to hold a substantially gainful occupation since 2007 and that he had taken early retirement from the Rock Island Illinois Armory due to severe back pain that kept him from performing his duties. The representative also clarified that the Veteran had not completed 2 years of college, as originally reported. The Veteran also was unable to type. The representative argued that the examination reports did "not consider the effect of all of his symptoms as a complete picture." The representative argued that the residuals of the Veteran's prostate cancer would affect his ability to work in that it would require frequent bathroom visits and there would be problems due to tangential issues due to lack of sleep as a result of his nocturia. The representative also specifically waived review of any new evidence since the Statement of the Case by the Agency of Original Jurisdiction. Thus, the Veteran has not worked during the appellate time period. The Veteran does have a high school eduction, but no further education. The Veteran also has experience working in various job fields, including punch press operator, forklift operator, in fence construction, and in sales. The Veteran has reported that he retired due to a combination of significant back pain and a beneficial retirement situation. Since that time, the Veteran contends his mental health, prostate, and right lower extremity radiculopathy symptoms also contribute to his inability to work. As to his back and right lower extremity radiculopathy, the associated symptoms would make physically demanding jobs difficult, if not impossible, and the Veteran also would require a work assignment that would permit him to regularly change positions between sitting, standing, and otherwise shifting his position to alleviate pain. The Board finds it would be reasonable to expect such an accommodation from an employer in any number of different job positions, such as a retail cashier, receptionist, telephone customer service representative, or dispatcher. The Board also notes that given the Veteran's past work in sales a position in a telephone call center might be a valid work opportunity. As to the Veteran's prostate problems, namely urinary frequency and incontinence issues, he would require an accommodation that would allow him regular access to a restroom. This seems like a reasonable accommodation that any of the foregoing job positions could accommodate. As to the Veteran's mental health problems, due to his memory and concentration issues, the Veteran would require a job position requiring significant repetition of tasks, which would be consistent with the above job positions. The description of shortcomings in concentration, mental confusion, and dexterity such as no ability to type is not consistent with the ability to ride a motorcycle particularly on long out of state trips. The Board notes the Veteran's reports of anger and irritability issues and his preference for social isolation; however, the evidence clearly demonstrates that the Veteran is able to interact with others in a social environment without difficulty, such as his rides, breakfasts, and trips with his fellow motorcycle enthusiasts and there otherwise is not indication of a problem with him interacting with the community. The Board acknowledges that the Veteran's service-connected disabilities have some effect on his occupational impairment. However, the current 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). 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.