Citation Nr: 22014367 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 13-28 969 DATE: March 12, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disability does not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38C.F.R. §§3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to December 1970. Historically, in September 2016, the Board denied a TDIU. The Veteran appealed the September 2016 Board decision to the United States Court of Appeals for Veterans' Claims (Court). In February 2018, the Court vacated the September 2016 Board decision and remanded the Veteran's claim to the Board for proceedings consistent with the Memorandum Decision. In September 2018, the Board denied a TDIU. The Veteran appealed the September 2018 Board decision to the Court. In a May 2019 Order, the Court granted a Joint Motion for Remand (Joint Motion), vacating the September 2018 Board decision and remanding the Veteran's claim to the Board for further proceedings consistent with the Joint Motion. In October 2019, the Board again denied entitlement to a TDIU. The Veteran appealed the October 2019 to the United States Court of Appeals for Veterans' Claims (Court). In a September 2021 Order, the Court granted a Joint Motion for Remand (JMR), vacating the October 2019 Board decision and remanding the Veteran's claim to the Board for further proceedings consistent with the Joint Motion. Entitlement to a TDIU. The Veteran asserts that his service-connected prostate cancer renders him unable to secure or follow a substantially gainful occupation. A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides. It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the Veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Where the veteran does not meet the percentage evaluation requirements under 38 C.F.R. § 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (hereinafter Director) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 208 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: Severity of a veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is service connected for adenocarcinoma of the prostate at 40 percent from June 30, 2010, and at 60 percent from June 12, 2011; tinnitus at 10 percent from June 21, 2018; status post right knee meniscectomy at 10 percent from June 18, 2019; left knee, degenerative arthritis at 10 percent from June 18, 2019; erectile dysfunction at noncompensable from August 11, 2016; and surgical scar, right knee at noncompensable from June 18, 2019. The Veteran's service-connected disabilities meet the schedular criteria from July 12, 2011, for an award of TDIU. Accordingly, this case turns on whether the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment consistent with his education and employment. As to employment and education, the Veteran last worked full-time in April 2009. See VA Form 21-8940. A SSA History Report shows that the Veteran worked as a construction superintendent from 1997 to 2009: supervising 20 to 400 people. The report further shows that his day-to-day duties included monitoring workers, checking work quality, holding safety meetings and enforcing safety measures, and maintaining daily reports. The Veteran explained that his primary role was ensuring quality and safety. The Veteran's education includes two years of college and various safety certifications. The aforementioned evidence shows that while the Veteran's occupational history is rooted in construction, his work focused on supervising employees with a focus on inspecting quality and ensuring safe work practices. Accordingly, this appeal turns on whether the Veteran's service-connected cancer, tinnitus, and knee disabilities preclude him from obtaining or maintaining similar work. The Board finds that they do not. Initially, the evidence shows that the Veteran's service-connected cancer manifests with symptoms including increase urinary frequency and urinary incontinence. An SSA report shows that the Veteran reported that prior to his cancer, he was able to work several hours without a bathroom break, but now, he has to take frequent bathroom breaks and worries about urinary accidents. VA examination reports show that the Veteran requires at least one bathroom break per hour to avoid incontinence and that he changes absorbent materials several times daily. The evidence also shows that the Veteran's knee disabilities impair his ability to engage in physically demanding work, that is, work requiring prolonged weightbearing, lifting, and stooping. While the Veteran's former manager and his former co-worker reported that his frequent need to use the bathroom impacted his work performance, the evidence shows that he was able to maintain fulltime employment for four years after his initial diagnosis of cancer. See December 2011 and January 2012 VA 21-4138, Statement in Support of Claim. The Board acknowledges that the Veteran's service-connected disabilities impair his ability to maintain physically demanding work; however, the Veteran possesses extensive occupational and educational experience that lends itself to non-physically demanding work, which would permit regular bathroom breaks and require. Critically, the Veteran has nearly two decades of supervising 20-400 employees, planning projects, and overseeing application of proper safety standards. In light of such experience, the Board envisions potential employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. Indeed, while the Veteran's need for frequent restroom breaks and impairment with prolonged weightbearing could pose challenges to supervising on a construction site, the evidence does not suggest that his service-connected disabilities would not prevent him from obtaining or maintaining an office-based position that calls upon his extensive supervisory experience or his knowledge of safety standards and project planning. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's service-connected disabilities are so severe as to preclude him from obtaining or maintaining substantially gainful employment consistent with his extensive supervisory experience, safety standards, or project management. Rather, the evidence persuasively weighs against such finding. Accordingly, the benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107 (b). Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.