Citation Nr: 21042275 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-27 365 DATE: July 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT While the threshold requirements for TDIU on a schedular basis have been met, the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1979 to September 2008. In February 2019, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed at the Board. In a May 2021 letter, VA informed the Veteran that the prior Veterans Law Judge was no longer at the Board and requested that he respond within thirty days of the letter if he desired another hearing. To date, the Veteran has not responded to the letter. A transcript of the February 2019 hearing is of record. Entitlement to TDIU. Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). In reaching such a determination, 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). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for the following disabilities: obstructive sleep apnea rated 50 percent disabling from October 1, 2008; allergic rhinitis with vascular headaches rated 30 percent disabling from October 1, 2008; migraine headaches rated 10 percent disabling from October 1, 2008 and 30 percent from August 27, 2012; status post radical prostatectomy, adenocarcinoma of the prostate rated 20 percent disabling from October 1, 2008; status post open resection of the polyps of the cecum and proximal colon rated 10 percent disabling from October 1, 2008 and 20 percent from August 27, 2012; lumbosacral strain with degenerative changes rated 10 percent disabling from October 1, 2008; cataracts rated zero percent from October 1, 2008; left hearing loss rated zero percent from October 1, 2008; hemorrhoids rated zero percent from October 1, 2008; erectile dysfunction (ED) rated zero percent from October 1, 2008; onychomycosis rated zero percent from October 1, 2008; residual scar, benign nevi involving the chest and left thigh rated zero percent from October 1, 2008; ventral incisional hernia associated with status post open resection of polyps of the cecum and proximal colon rated zero percent from August 27, 2012; residual scar associated with status post open resection of polyps of the cecum and proximal colon rated zero percent from August 27, 2012; and, residual scar associated with status post radical prostatectomy, adenocarcinoma of the prostate rated zero percent from August 27, 2012. See March 2013 rating decision code sheet. The Veteran has a combined rating of 80 percent from October 1, 2008 and a combined rating of 90 percent from August 27, 2012. Id. Thus, for the entire period currently on appeal, the Veteran meets the criteria for schedular consideration of TDIU under 38 C.F.R. § 4.16(a). For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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 applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran's claim of entitlement to TDIU was received in August 2012, whereby he stated that the service-connected disabilities that prevent him from securing or following substantially gainful employment included prostate cancer, colon cancer, migraine headaches, sleep apnea, and back pain. He indicated that from October 1979 to September 2008 he worked for the Air Force and he last worked full time on September 30, 2008. The Veteran reported that in 2008 he earned $140,000.000, which is the most he ever earned and his occupation was mountain commander, pilot. He also indicated that in the past 12 months his earned income was $120,000.00. The Veteran indicated that he did not leave his last job due to his disability and expected to receive disability retirement benefits. He noted that he had a 4 year college education and a Masters in Operational Management. During the February 2019 Board hearing the Veteran reported that he was now voiding 15 times per day and three times per night, causing a sleep disturbance and daytime fatigue. He further testified that he has migraines monthly, but sometimes weekly, that require him to lay down. He also testified that he suffers from severe diarrhea following the resection of his colon, causing a couple of watery stools per day that are urgent and occur unexpectedly. In statements including in September 2012, the Veteran contends that the combined effect of his disabilities has prevented him from pursuing and maintaining meaningful employment. The combined effects include fatigue and pain resulting in lack of energy and anxiety that preclude him from finding and maintaining employment. He noted that migraine headaches occur every 10 days on average and keep him in bed for a day every 30 to 45 days. He stated that treatment for prostate cancer contributes to his fatigue requiring mild day rests and sleep apnea causes fatigue during the day. The Veteran noted that back pain prevents him from sitting or standing for long periods of time. He reported that daily diarrhea from colon surgery and incontinence from prostate surgery require frequent/hourly bathroom trips. The Veteran's private doctor also signed the statement concurring with the Veteran's assertions. The Board recognizes the Veteran's contentions including the September 2012 statement. While the Board also acknowledges that the Veteran's private physician signed the statement, the doctor only concurred without further rationale to support the statement. Moreover, and of significant import, the weight of the evidence does not establish that the Veteran's service-connected disabilities render him unemployable. As will be presented further below, while the evidence shows that some of the service-connected disabilities may impact the Veteran's ability to work the weight of the evidence does not show the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. On VA examination for intestinal surgery in November 2012, the examiner noted that the Veteran had 4 to 6 loose watery stools each day and opined that residuals from the Veteran's intestinal surgery do not impact his ability to work. On VA general examination in November 2012, after reviewing the file the examiner opined that the Veteran's disorders did not prevent him from securing or following a substantially gainful occupation. The examiner explained that the Veteran is service connected for cataracts and he can drive and work. His dermatophytosis, impaired hearing, ED, hemorrhoids, and benign neoplasm of the skin do not limit his working. On VA back examination in November 2012, the examiner opined that the Veteran's thoracolumbar spine disability impacted his ability to work to the extent that the Veteran could stand no longer than one hour without sitting. When he experienced back pain 1-2 times per year, he was limited to lifting 15 pounds for one to two days. On VA headaches examination in November 2012, the examiner opined that the Veteran's headache disorder impacted his ability to work to the extent that he had prostrating headaches on average once a month and would need time off for that duration. The examiner noted that the Veteran reported that his headaches are the same as they were in 2000. On VA prostate cancer examination in November 2012, the examiner opined that the Veteran's prostate cancer impacted his ability to work to the extent that the Veteran needed frequent access to a rest room every 2 to 3 hours. On VA sleep apnea examination in November 2012, the examiner opined that the Veteran's sleep apnea impacted his ability to work to the extent he would require a 20 to 30 minute break every day to rest. On VA male reproductive examination in November 2019, the examiner opined that the Veteran's erectile dysfunction did not impact his ability to work. In a November 2019 Individual Unemployability Statement the examiner opined that there were no restrictions for job activities required due to disorders of the male reproductive system. On the VA sleep apnea examination in November 2019 the examiner noted that the Veteran was a retired Air Force pilot and lost zero to one week of work time in the last 12 months. The examiner opined that sleep apnea impacted the Veteran's ability to work as he will have difficulty focusing and being attentive at times when fatigue is an issue. On VA back examination in November 2019 the examiner opined that the Veteran's back disability did not impact his ability to work. On VA headache examination in November 2019 the examiner noted that the Veteran was a retired Air Force pilot and lost zero to one week work time in the last 12 months. The examiner opined that the Veteran's headache disorder impacted his ability to work to the extent that the Veteran would have difficulty with focusing and concentrating when a migraine is present. In Individual Unemployability Statements in November 2019 the examiner opined that as a result of sleep apnea, back disability, and headaches the Veteran at least as likely as not in an eight hour work day is able to perform medium work, which would require exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. On VA examination for hernias in November 2019 the examiner opined that the Veteran's hernia disorder did not impact his ability to work. In an Individual Unemployability Statement in November 2019 the examiner opined that there were no restrictions for job activities due to abdominal, inguinal and femoral hernias. On VA audiological examination in November 2019 the examiner noted that the Veteran was retired and reported difficulty hearing in background noise, has to raise the volume on the TV, use the phone on the right side and at times has to have people repeat themselves. In an Individual Unemployability Statement in November 2019 the examiner opined that with proper hearing and/or adaptive devices the Veteran has no work restrictions due to hearing loss. On VA skin examination in November 2019 the examiner opined that the Veteran's skin disability did not impact his ability to work. On VA rectum and anus examination in November 2019 the examiner opined that the Veteran's rectum disorder did not impact his ability to work. In a November 2019 Individual Unemployability Statement the examiner opined that there were no restrictions for job activities required due to the Veteran's rectum and anus disorders to include hemorrhoids. On VA sinusitis/rhinitis examination in November 2019 the examiner opined that the Veteran's disability did not impact his ability to work. In an Individual Unemployability Statement in November 2019 the examiner opined that there were no restrictions for job activities due to rhinitis. On VA prostate examination in November 2019 the examiner opined that the Veteran's prostate cancer did not impact his ability to work. In an Individual Unemployability Statement in November 2019 the examiner opined that as a result of prostate cancer the Veteran at least as likely as not in an eight hour work day is able to perform light work, which would require exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. On VA eye examination in November 2019 the examiner opined that the Veteran's eye disorder did not impact his ability to work. In an Individual Unemployability Statement in December 2019 the examiner opined that there were no job restrictions due to the Veteran's eye disorder. On VA intestinal surgery examination in November 2019 the examiner noted that the Veteran was status post open resection of polyps of the cecum and proximal colon and opined that his intestinal surgery residuals did not impact his ability to work. In an Individual Unemployability Statement in December 2019 the examiner opined that there are no restrictions for job activities due to residuals of the Veteran's intestinal surgery. On VA scar examination in November 2019 the examiner opined that the Veteran's scarring did not impact his ability to work. In an Individual Unemployability Statement in December 2019 the examiner opined that there are no restrictions for job activities due to scars. The Board also finds probative the Veteran's testimony in February 2019 whereby he stated that he was diagnosed with prostate cancer in 2006 and retired from the Air Force in September 2008. He stated that he was not forced to retire due to his medical problems. While the Board does not wish to minimize the nature and extent of the Veteran's disabilities, the evidence of record does not support his claim that his service-connected disabilities are sufficient to produce unemployability. To the extent that the Veteran has contended that an opinion is necessary to address the combined impact of his service-connected disabilities on his employment, the United States Court of Appeals for Veterans Claims has held that "a combined-effects medical examination report or opinion is not required per se by any statute, regulation, or policy to properly decide entitlement to TDIU for a veteran with multiple service-connected disabilities." See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). To the contrary, the need for such an examination report or opinion "with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by [the AOJ] or the Board." Id. In the instant case, no combined-effects examination or opinion is necessary with respect to the Veteran's TDIU claim as the evidence discussed above, to include the Veteran's previous VA examinations, when viewed in its entirety, allows for a fully informed decision. For all the foregoing reasons, the claim for entitlement to TDIU is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.