Citation Nr: 18160377
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-26 088
DATE:	December 26, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective January 12, 2018. 
REMANDED
Entitlement to a TDIU prior to January 12, 2018 on an extra-schedular basis is remanded.
FINDING OF FACT
The evidence of record supports a finding that the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment, beginning January 12, 2018. 
CONCLUSION OF LAW
The criteria for entitlement to a TDIU have been met, effective January 12, 2018.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service in the U.S. Army from February 1965 to June 1985. 
Entitlement to a TDIU
The Veteran contends that his residuals of prostate cancer, amongst his other service-connected disabilities renders him unable to obtain and maintain substantially gainful employment.  Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 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.  38 C.F.R. §§ 3.340, 3.341, 4.16. 
Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age, or to the impairment caused by non-service-connected disabilities.  Id.  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).  Additional considerations are noting that for a TDIU, marginal employment is not to be considered substantially gainful employment.  38 C.F.R. § 4.17.  
As the record stands now, the Veteran is service connected for six disabilities, namely residuals of prostate cancer and right inguinal hernia repair, a scar, erectile dysfunction, persistent depressive disorder, and solar dermatitis.  The Veteran’s combined evaluation prior to this adjudication is noncompensable from May 31, 1989; 100 percent from October 20, 2005; 60 percent from April 1, 2015; and 80 percent from January 12, 2018.  
Per 38 C.F.R. § 4.16, if the Veteran has more than one service-connected disability, he would need to possess at least one disability ratable at 40 percent or more, and additional disabilities which bring his combined total to 70 percent or more to meet the schedular criteria for a TDIU.  At present, the Veteran’s combined 80 percent evaluation meets the schedular criteria for consideration of a TDIU on the merits beginning January 12, 2018.  38 C.F.R. § 4.16(a).  
In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10, but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,’ 38 C.F.R. § 4.2). 
In the instant matter, the record indicates that the Veteran last worked in March 2007.  Specifically, the indicates that the Veteran likely is unable to obtain and maintain substantially gainful employment, as his service-connected disabilities as a whole render him unable to sustain employment even in an office setting which allowed him regular bathroom breaks. 
By way of background, the Veteran retired in March 2007, following around eighteen years of employment as a designer.  He reported missing approximately 10 days in the last year of work.  See VA Form 21-8940.  
The claims file includes a December 2013 statement from the Veteran’s private physician, Dr. Karp, who felt that the Veteran had significant urinary symptoms and appeared quite disabled by those symptoms.  
A September 2014 VA examination for residuals of prostate cancer noted that the Veteran was required to take mild to frequent bathroom breaks, which did have an impact on his ability to work.  
Dr. Karp also submitted a March 2016 statement opining that the residual complications of the Veteran’s prostate cancer, including his need to use absorbent materials four times daily, awakening to void four to five times per night, and daytime voiding intervals every one-to-two hours, would not allow the Veteran to adequately participate in substantially gainful employment in general, or even employment of a sedentary or less physical type of occupation. 
Similarly, the Veteran’s physician Dr. Suarez submitted an April 2016 statement alleging that the Veteran’s symptoms of his psychiatric condition, including those of a chronic mood disorder, depression, and anxiety mostly impacted by his urological condition and consequential stress incontinence, urinary frequency and urgency.  The physician supported the previous statements forwarded by Dr. Karp.  
The Veteran underwent an April 2016 VA examination where his prostate cancer was noted to be in remission with residual urinary incontinence and erectile dysfunction.  The Veteran’s treatment was completed in 2005, though the examiner noted the physicians were currently in watchful waiting status.  The Veteran’s voiding dysfunction required absorbent material to be changed more than four times per day.  Concluding the examination, the examiner stated that the Veteran’s moderate urinary incontinence affected his ability to obtain and maintain employment, but did not prevent all work as the Veteran would just need employment that allowed for frequent bathroom breaks. 
The Board has also considered the effect on the Veteran’s ability to work as a result of his service-connected disability of persistent depressive disorder associated with his prostate cancer residuals.  Upon examination in May 2018, the examiner felt that the Veteran’s psychiatric disability alone, caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. 
The medical evidence of record is in relative equipoise, as the VA examiners stated that the Veteran still retained some form of residual occupational capacity, and the private physicians opined that the Veteran’s psychiatric and prostate residuals caused a total disability.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Based on the evidence of record, the Board finds that the Veteran is unable to secure or follow substantially gainful employment by way of his prostate cancer residuals and psychiatric disability causing the Veteran depression, anxiety, sleep disturbances multiple times per night to urinate, and the required use of absorbent materials that need to be changed more than four-times per day.  Accordingly, entitlement to a TDIU on a schedular basis is warranted effective January 12, 2018.  38 C.F.R. §§ 3.340, 3.341, 4.16. 
REASONS FOR REMAND
Entitlement to a TDIU on an extra-schedular basis is remanded.
For the period prior to January 12, 2018, the Veteran’s service-connected disabilities do not meet the minimum schedular criteria to be considered for a TDIU, as he is only in receipt of a 60 percent combined rating for multiple service-connected disabilities. 
If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extra-schedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also 38 C.F.R. § 4.16 (b) (stating that “rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section”). 
The private treatment records suggest that the Veteran has been unemployable by way of his psychiatric and prostate cancer residuals since at least 2013, when the physician described the Veteran’s symptoms rendering him as “quite disabled” due to significant urinary symptoms.  Moreover, the 2016 letters from both Dr. Karp and Dr. Suarez, indicate to some degree that the Veteran was unemployable by way of service-connected disabilities prior to 2018.  Thus, the Veteran’s claim should therefore be submitted to the Director of Compensation and Pension Service, for extraschedular consideration per § 4.16(b) for the period prior to January 12, 2018.  
The matter is REMANDED for the following action:
1. Refer the Veteran’s claim for a TDIU per § 4.16(b) to the Under Secretary for Benefits or the Director, Compensation Service, for extraschedular consideration as to whether his service-connected conditions precluded the Veteran from participating in gainful employment prior to January 2018. 
(Continued on the next page)
 
2. After completion of the above, readjudicate the issue of entitlement to a TDIU pursuant to § 4.16(b) for the period prior to January 12, 2018.  If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review.
 
T. BERRY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.L. Reid, Associate Counsel 

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