Citation Nr: 21042786 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-20 901 DATE: July 13, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities, to include consideration on an extraschedular basis, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran's service-connected disabilities render him unable to obtain and/or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities, to include consideration on an extraschedular basis, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to February 1969. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in January 2021; a transcript is of record. The Board remanded this matter in February 2021. 1. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disabilities. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524 (1993). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects on occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment, such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Though the Board must fully consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his service-connected residuals from prostate cancer, including from a radical prostatectomy, and posttraumatic stress disorder (PTSD) with secondary persistent depressive disorder and alcohol use disorder prevent him from obtaining and/or maintaining a substantially gainful occupation. The Veteran's service-connected disabilities include the following: PTSD with secondary persistent depressive disorder and alcohol use disorder evaluated as 50 percent disabling effective August 24, 2016; prostate cancer with erectile dysfunction evaluated as 100 percent disabling effective August 24, 2016, and 20 percent disabling effective November 1, 2019; and scar as a residual of prostate cancer evaluated as 0 percent disabling effective September 26, 2016. Based on this, the Veteran has a combined evaluation of 100 percent effective August 24, 2016, and 60 percent effective November 1, 2019. Accordingly, due to the combined, 60 percent rating, the Veteran does not meet the schedular criteria for entitlement to a TDIU for the period from November 1, 2019. See 38 C.F.R. § 4.16(a). As the Board acknowledged in its February 2021 remand, a 100 percent rating means that a Veteran is totally disabled, however, a grant of a 100 percent rating assigned for a Veteran's disability does not render the issue of entitlement to a TDIU moot; VA's duty to maximize a claimant's benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. Holland v. Brown, 6 Vet. App. 443 (1994); Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. at 280. However, as the Board previously determined, that is not applicable in the present case. See February 2021 Board Decision. When a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board may nevertheless refer the claim to the Director of Compensation Service ("Director") for extraschedular consideration if the Veteran is unable to secure and/or maintain substantially gainful employment by reason of service-connected disabilities. See Wages v. McDonald, 27 Vet. App. 233 (2015). Following the Board's February 2021 remand, VA forwarded the Veteran's claim to the Director for consideration under an extraschedular basis, as the Board is precluded from granting an extraschedular rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In April 2021, the Director issued an advisory opinion against entitlement to TDIU on an extraschedular basis due to the evidence of record not showing an "unusual or exceptional disability pattern . . . that would render application of the regular rating criteria as impractical." See April 2021 Advisory Opinion (labeled VA Memo). However, despite this denial and the Board's requirement to obtain the Director's decision before awarding extraschedular benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38. Therefore, the Board will review the Director's determination de novo. After review of the record, the Board finds that the Veteran's service-connected disabilities render him unemployable. The Veteran stated that he was "considering a new career path for retirement" but that he could not travel because he must "always be by a bathroom." See August 2018 VA Form 21-4138. He stated that given the frequency of his need to urinate, he experienced severe interference in his previous employment. See January 2021 Hearing Transcript. He worked primarily in an office, but he would have to "go out" and supervise others. See id. Also, the Veteran's November 2017 examination confirms the negative impact of his residuals of prostate cancer on his ability to work. The examiner confirmed that the Veteran's disability caused him to remain in proximity to a bathroom. See November 2017 VA Prostate Cancer C&P Examination. When he was evaluated for this condition again in July 2018, the examiner determined that because the Veteran could not take frequent bathroom breaks, his residuals of prostate cancer affected his ability to work regardless of the fact that he was no longer wearing absorbent material "24/7." See July 2018 VA Prostate Cancer C&P Examination. The Veteran's medical records also indicate that his service-connected psychiatric disability impacted his ability to work. Even though the April 2017 examination found that the Veteran's condition caused occupational and social impairment with reduced reliability and productivity, he stated that he was fired from a position after three years for drinking and that he traveled for work but was fearful of staying in hotels and waking up in a nightmare. See April 2017 VA Initial PTSD C&P Examination. Additionally, when the Veteran met with his private providers, he reported various instances of frustrations as work, including outbursts and experiencing conflict with others. See October 1998, December 1999, February 2000, May 2003, May 2004, January 2010, March 2010, October 2010, May-July 2011, January 2013, March-May 2013, September 2013, December 2013, and April 2014 Records from Psychology & Counseling Associates, P.C. Based on the above, to include consideration of the Veteran's work history, education, and medical assessments, private medical records, and competent lay statements, the evidence of record reflects that the Veteran's service-connected disabilities impacted his ability to work, to the point of the Veteran being unable to maintain employment, or if he did, to fulfill his regular duties in his previous position. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the probative evidence of record is in equipoise, and therefore in favor of the Veteran not being able to secure and/or maintain any substantially gainful occupation due to his service-connected disabilities. Thus, entitlement to a TDIU on an extraschedular basis is warranted and the Veteran's claim is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Seserman 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.