Citation Nr: 21042256 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-12 336 DATE: July 12, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is denied. FINDING OF FACT The Veteran's service-connected disabilities have not been shown to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from September 1967 to April 1969. The Veteran asserts that his service-connected disabilities preclude him from being able to secure or follow a substantially gainful occupation. Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Furthermore, marginal employment is not considered substantially gainful employment. Marginal employment may be held to exist, on a fact found basis, to include, but not limited to, employment in a "protected environment," such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (work in a "protected environment" will also be considered marginal and is not determined on the basis of salary). The Board recognizes that "protected environment" has not been expressly defined by regulation. Merriam-Webster's Collegiate Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." See Merriam-Webster's Collegiate Dictionary (online) (2017). "Contingent" can mean "likely but not certain to happen: possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist but for the willingness of the employer to hire and pay the employee for altruistic reasons. Currently, service connection is in effect for posttraumatic stress disorder (PTSD) (50% 12/19/2011; 70% 12/17/2012); residuals, prostate cancer (100% 12/19/2011; 60% 03/06/2013); diabetes mellitus, type II (20% 10/11/2012); tinnitus (10% 01/29/2004); bilateral hearing loss (0% 01/29/2004); appendectomy scar (0% 01/29/2004); residuals, infected left ring finger (0% 01/29/2004); and, erectile dysfunction (0% 03/08/2012). The Veteran's combined evaluation is 90 percent from March 6, 2013. As the schedular criteria have been met, the Board will consider whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. To this end, the preponderance of the evidence is against the claim. The evidence of record reflects that that the Veteran has worked for many years as a self-employed farmer. For example, a June 2004 VA audiological evaluation indicates his occupation as farmer. During a March 2012 VA audiological examination, the examiner opined that the Veteran's hearing loss and tinnitus do not impact his ability to work. In a March 2012 VA psychological evaluation, the examiner noted that the Veteran's psychiatric disability caused 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 routing behavior, self-care and conversation. The Veteran reported having an active social life. He indicated that he socialized with his neighbors and another close friend. He noted that he and his spouse would go out to eat and visit back and forth with other couples. He also reported positive relationships with his wife and children. During the examination the Veteran reported that he graduated from high school in 1966 and has no additional formal education. He reported being a farmer most of his life and was still farming. He reported farming 500 acres of his own and another 300 acres. He indicated he mostly works alone. He reported that sometimes he makes errors while working when thinking about his service experience. He also indicated that when he is bothered by war memories, he "gets down and it's hard to get motivated." He reported difficulty related to memory and concentration. The examiner described the occupational impairment attributable to the Veteran's service-connected PTSD as moderate. A November 2012 VA prostate cancer examination indicated that the Veteran was diagnosed with prostate cancer in 2011 and underwent surgery in 2012. As a result, he had voiding dysfunction and requires absorbent material that must be changed 2 to 4 times per day. The Veteran's voiding dysfunction caused increased urinary frequency. Regarding functional impact, the Veteran reported that he could not lift, bend, or move rapidly without incontinence. A July 2012 Social Security Administration (SSA) determination found the Veteran to be disabled due to his prostate cancer, back condition, and carpal tunnel syndrome. The Veteran reported that he worked as a farmer and has livestock, which he cares for and had family members assist him as needed. The Veteran reported that prior to his illness he could lift heavy items but no longer could do this due to urinary incontinence and back surgery. He further reported having carpal tunnel surgery on both hands and experiencing reduced strength as a result. On his December 2012 TDIU application, the Veteran reported he last worked full time in 1988. He also reported that he has been self-employed as a farmer and working 50 hours a week since 2006. He reported time lost from illness at "5 days" and reported his highest gross earnings per month as $390. He reported completing high school and denied any additional education or training. A July 2013 VA rheumatology consultation reflects the Veteran's reported that he was a retired construction worker and a farmer. It was indicated that he has obvious degenerative changes in the hands. 02/23/2016 CAPRI at 6. The Veteran underwent a VA diabetes examination in March 2014. The examiner noted osteoarthritic changes of the bilateral wrists due to a many-year history of hand intensive work as a self-employed farmer. The examiner concluded the Veteran's diabetes mellitus did not preclude him from working. Regarding functional impact, the examiner noted that the Veteran should work a regular shift with regularly scheduled meal and rest breaks. The examiner also noted the Veteran should avoid other than infrequent vibration, impact, and torque exposures to the hands. He should also avoid cold exposure to the hands. During a March 2014 prostate cancer VA examination, the examiner indicated that the Veteran's condition affects his ability to work. The examiner noted the Veteran must have ready access to bathroom to change pads and accommodate frequent urination. He should avoid lifting or carrying over 25 pounds, which is associated with increased stress urinary incontinence. He should also avoid climbing as the Veteran identified increased loss of bladder control with stepping up while pulling with upper extremities. At a March 2014 VA psychological evaluation, the examiner indicated the Veteran had occupational and social impairment with reduced reliability and productivity. During the examination, the Veteran reported that his wife worries that he works too many hours. He prefers to keep busy to not think about things from the past or worry about the future. The Veteran reported that since his initial psychological evaluation in March 2012, he has remained self-employed as farmer, which he has been doing for 20 years. He maintains both animals and crops. He reported that he worked construction in the past. He reported he enjoys farming particularly because it is solitary, and he does not have to be around other people. He further indicated that the last year had been stressful due to flooding and problems with his insurance. He also reported he is having more difficulty focusing and keeping things organized. The Veteran reported recently experiencing anxiety and uncontrollable worry about finances and his farm. He attributed his anxiety primarily to his financial situation and stress over keeping the farm going. The examiner opined that the symptoms inherent within the Veteran's service-connected PTSD including mildly inefficient concentration and some difficulty coping with stress could negatively impact the Veteran's workplace functioning from a mild to moderate extent. The examiner further noted he may have more difficulty in a field requiring extensive interpersonal interaction, whereas he currently does solitary work. Tax statements of record report the Veteran's adjusted gross income for 2013, 2014, and 2015 was $7,183, $10,169, and -$4,923 respectively. An April 2015 VA treatment note indicates that the Veteran reported being interested in a total right hip arthroplasty but indicated he is a very busy farmer and wants to wait until the interim between his planting and crop season. An October 2015 VA treatment note indicates the Veteran was recovering from hip surgery but indicated he was back to working full time as a farmer. 02/23/2016 CAPRI at 21. A March 2016 VA treatment note indicates the Veteran was a part time farmer. 04/07/2016 CAPRI at 3. A November 2016 VA treatment record notes the Veteran's report that he is retired and he continues to work on his farm. 02/06/2021 Medical Treatment Record-Government Facility at 21. A December 2017 VA treatment record reflects the Veteran's report that he works every day on his farm. 02/06/2021 Medical Treatment Record-Government Facility at 64. A February 2018 VA treatment record reflects the Veteran's report that he is very active on the farm, but experiences daily incontinence and he leaks a lot while working. Id. at 45. A March 2018 VA treatment record notes that the Veteran is a self-employed farmer. Id. at 17. A January 2019 VA treatment record reflects the Veteran's report that he performs activities around his farm but has difficulty navigating uneven terrain and has fallen frequently in the past. He is able to get up and down stairs with a handrail. He has generalized weakness in his lower extremities. 02/06/2021 Medical Treatment Record-Government Facility at 24. A January 2020 VA treatment record reflects the Veteran's report that he wants to improve his strength in his back and legs to make walking and working on his farm easier. Id. at 4. In December 2020, the Veteran's spouse submitted a statement which asserts that the Veteran's farming work has "backed off and lessen." Family members help with the fences, crops and cattle. The Veteran does what he can. If he does not keep busy, his mind wanders due to his PTSD. He takes breaks often. His PTSD has a lot to do with him slowing down in his work. He does not have to work with other people on the farm very often. He is mainly on his own and does what he can at his own pace. If he could not work on the farm, it would be difficult for him to get a different job. The Veteran's spouse described the physical and mental problems he would have if he had to work somewhere other than the farm. In January 2021, a vocational consultant proffered an opinion that since at least March 8, 2012 the Veteran's service-connected disabilities have prevented him from participating in gainful employment. The opinion was based on an interview with the Veteran and a review of medical records. It was noted that the Veteran took multiple medications with little side effects. His wife helped him dress with buttoning shirts and he described daily fatigue/energy that prevents him from doing many things he did before prostate surgery. He described weakness in his legs, knees, balance issues and he has an abnormal gait and uses a "walking stick." He could tolerate sitting and driving for 45 minutes to an hour, walking 1-5 minutes, and he could lift 20-30 pounds but with pain. When his sleep is disturbed he is constantly fatigued. It was indicated that the Veteran worked for a construction company beginning in 1971 and in 1994 he returned to his family farm to raise cattle and hay crops. The vocational consultant noted that the Veteran's work history has included medium to very heavy physical demand work requiring frequent to occasional climbing, stooping, kneeling, crouching that cause the Veteran stress incontinence at work. The increased incontinence and frequent urgency to urinate require increased break time away from his work as a farmer and on the family farm that is permissible but an accommodation that would not be permissible by employers. The Veteran reported that he can take frequent breaks when he needs to rest due to fatigue and that other family members take up the slack and do the farm work. The physical activities required to perform this work are part of the essential job functions. Also, he was restricted from lifting as it precipitated incontinence. He would require additional training and learn new skills to perform light or sedentary work. He has a GED education and no other training or work experience for other employment options. He returned to the family farm and performed the work he could do in a solitary environment and at his own pace because he becomes aggravated and angered by people related to his PTSD symptoms. All of his past work was performed in stressful environments and required concentration to complete tasks. The Veteran described exacerbated PTSD symptoms under these conditions. Also he has no skills for light or sedentary work that does and does not require his ability to hear on a job in a quiet noise intensity environment and the constant interference of his tinnitus constantly interfered with his ability to concentrate on his work tasks. The vocational examiner opined that the Veteran's prostate cancer (with residuals of chronic urinary incontinence, frequent voiding, and diminished physical strength) has solely rendered him completely impaired and he would be incapable of maintaining gainful employment from at least March 2012 forward. His inability to perform gainful employment is further compounded by his PTSD, diabetes and hearing loss disabilities. The vocational examiner stated that the Veteran was struggling to successfully complete his occupational tasks while employed in manual labor positions due to multiple pain issues so he returned to his family's farm where he could work as he was able. After his prostatectomy due to prostate cancer (with residuals of chronic urinary incontinence, frequent voiding, and diminished physical strength) the SSA determined him disabled as of March 8, 2012. The combined medical records reflect a person who has marked chronic incontinence, which when combined with the additional functional limitations imposed by his bilateral hearing loss/tinnitus and PTSD leaves him with no feasible accommodations for successful gainful employment. His education and work experience (which does not readily translate to light or sedentary occupational environments) further limit his ability to obtain gainful employment. His contributions to his family's farm are minimal at best and do not suggest he would be capable of functioning in other occupational environments. From a vocational perspective of his disability limitations, it is more likely than not that the Veteran has been "unemployable" within the world of work since March 2012 based on interview and records reviewed. While consideration has been given to the entire medical evidence of record, the lay assertions of the Veteran and his spouse, and the vocational opinion, the Board finds that the preponderance of the evidence is against a finding that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities at any time during the appeal period. As detailed above, the medical evidence of record consistently reflects that the Veteran has been actively working on his family farm for many years caring for crops and livestock. The Veteran has consistently reported working fulltime as a self-employed farmer throughout the appeal period and after his prostate surgery. Throughout the appeal period he reported spending significant time working on 500 acres of land caring for livestock and crops. He also reported an active social and family life. Although the Veteran's submitted tax forms suggest limited income they are not sufficient to show the Veteran is incapable of maintaining substantially gainful employment due solely to his service-connected disabilities, nor do they suggest that his employment was marginal due to his service-connected disabilities only. Notably, SSA found the Veteran disabled due to his prostate cancer residuals and his nonservice-connected back and carpal tunnel disabilities. The January 2021 vocational examiner has opined that the Veteran's education and work experience and symptomatology associated with his service-connected disabilities, particularly his PTSD, residuals of prostate cancer, diabetes mellitus, tinnitus, and bilateral hearing loss, would limit his ability to obtain gainful employment to include light and sedentary employment. The vocational examiner concluded that based on the Veteran's symptomatology and limitations he would be unemployable "within the world of work." While acknowledging such opinion, the Board notes that the Veteran has reported self-employment as a farmer since at least 2006 and has reported that he works 50 hours per week 5 days a week. The vocational examiner and the Veteran's spouse have detailed that as the Veteran is self-employed as a farmer he is able to work at his own pace, take breaks as needed, and is able to work alone which helps with his PTSD symptoms. Thus, the Veteran is able to maintain employment on his farm despite the symptomatology associated with his service-connected disabilities. While recognizing that the Veteran may not be able to maintain employment in a different field of work, to include sedentary work, due to his service-connected disabilities, he has maintained employment for many years as a farmer on his farm. There is no indication that the Veteran has sought employment nor desires to seek other employment, as he has worked as a farmer for many years. His work as a farmer has been ongoing for many years, to include for the period prior to service connection being established for PTSD, residuals of prostate cancer, and diabetes mellitus. Following his work in construction, the Veteran became a farmer and has been able to continue to actively work on his farm even with the functional limitations associated with his service-connected disabilities. Moreover, the Veteran's limitations due to his service-connected disabilities are considered in the 90 percent combined disability rating he receives. Indeed, the assignment of the 70 percent schedular rating for PTSD, a 60 percent schedular rating for residuals of prostate cancer and a 20 percent schedular rating for diabetes mellitus is recognition of the functional limitations caused by his disabilities and the ratings contemplate the severity and overall impact the symptoms have on the Veteran's life. As such, the evidence does not persuasively support a finding that the Veteran was unable to obtain and maintain substantially gainful employment solely due to his service-connected disabilities. See 38 C.F.R. § 4.19. The Board finds that the claim for TDIU must be denied. As the preponderance of the evidence is against the Veteran's claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.