Citation Nr: 1307537 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-29 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1941 to December 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2007, June 2008, and May 2011 by the Department of Veterans Affairs (VA), Regional Office (RO), in Wichita, Kansas. In October 2010, the Veteran testified before the undersigned at a hearing at the RO. A transcript of the hearing is associated with the claims file. Although the Veteran initially requested a Board videoconference hearing as to his claim for special monthly compensation, he withdrew this request in a July 2012 statement. See 38 C.F.R. § 20.702 (2012). No further hearing has been requested. The Board previously remanded these issues for further development in December 2010, September 2011, May 2012, and September 2012. As discussed below, sufficient development has now been conducted for a fair adjudication. The Board has reviewed the Veteran's Virtual VA file (a highly secured electronic storage system) as well as the paper claims file. The Virtual VA file includes VA treatment records dated through August 2012, some of which are not in the paper file. However, such evidence is essentially duplicative of the evidence considered by the agency of original jurisdiction (AOJ), as it generally indicates treatment for current bilateral hearing loss and difficulties due to multiple disabilities. Therefore, this evidence has no bearing on the outcome of the appeal and is not pertinent, and the Board may properly consider such evidence without the need to refer it to the AOJ for review. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's currently diagnosed sensorineural hearing loss disability was not shown during service or to a compensable degree within one year after service, there is no continuity of symptomatology, and there is no medical link to service. 2. The Veteran has been service-connected for a lumbar spine disability and anxiety, with assigned disability ratings of no more than 20 and 30 percent each, and a combined disability rating of 40 percent, throughout the course of the appeal. 3. The Veteran's service-connected disabilities do not render him unemployable. 4. The Veteran is not blind, does not have permanent loss or loss of use of both feet or of one hand and one foot, is not bedridden or housebound; and although he receives regular aid and attendance from various people to perform many daily functions and keep him safe, this is not due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). 3. The criteria for special monthly compensation based on the need for regular aid and attendance of another person, or by reason of being housebound, have not been met. 38 U.S.C.A. §§ 1114(l)&(s), 1502, 1521, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.350(b)&(i), 3.352(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA is required to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). Notice should be provided to the claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). These notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As directed in the prior remands, the Veteran has been notified of the evidence and information necessary to establish his claims for service connection, TDIU, and special monthly compensation based on the need for aid and attendance or housebound status, as well as a disability rating and effective date. See letters dated in July 2007, March 2008, January 2011, and September 2012. To the extent that these letters were issued after the initial rating decision, the timing defect was cured by the subsequent readjudication of the claims, to include in a January 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). During the October 2010 Board hearing, the undersigned clarified the issues on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted symptoms. The Veteran was also offered an opportunity to ask the undersigned questions regarding his claims. The Veteran fully described his contentions through questioning from his representative and the undersigned. There is no indication or argument that any notification deficiencies resulted in prejudice or otherwise affected the essential fairness of the adjudication of the claims. In particular, neither the Veteran nor her representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the hearing. Rather, the Veteran has had ample opportunity to participate in the adjudication of his claims. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has also substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). Concerning the duty to assist, all identified, relevant medical records have been obtained. As directed in the prior remand, VA requested the Veteran to identify any outstanding treatment records in September 2012. He did not respond to that request. Further, the Veteran previously reported in July 2007 that all relevant treatment was at the Wichita VA facility. Records have been obtained from that facility. Additionally, the Social Security Administration indicated in March 2011 that no medical records are available for the Veteran. This is consistent with the Veteran's reports that he never received disability benefits from the Social Security Administration, but only age-related benefits. The Veteran has not identified any pertinent non-VA records, and there is no indication that any pertinent records remain outstanding. The Veteran has been afforded several VA examinations in connection with his claims. The Board previously found that a May 2011 VA audiological examination report and opinion was inadequate because the examiner appeared to rely only on the Veteran's service treatment records and did not adequately consider the Veteran's lay statements as to the timing of his disability. As directed in the prior remands, the Veteran was afforded a new VA examination in November 2012, as the prior examiner was not available to offer an addendum report. This examiner offered an opinion as to the causation of the Veteran's hearing loss disability based on consideration of the Veteran's lay statements as well as the available medical evidence (including during and after service). Therefore, this opinion is adequate. Neither the Veteran nor his representative has argued that any remand directives have not been completed, and the Board also finds that the directives have been satisfied. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In the circumstances of this case, another remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on the merits of his claims. Service Connection for Bilateral Hearing Loss The Veteran contends that he currently has bilateral hearing loss as a result of hazardous noise exposure during service from 1941 to 1945. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required to establish chronic disability if a condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In other words, the nexus element may be established based on competent and credible medical or lay evidence of continuity of symptomatology for chronic disability. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Further, service connection may be granted for organic disease of the nervous system, including sensorineural hearing loss, as a chronic disability based on a legal presumption if it is shown to have manifested to a degree of at least 10 percent within one year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board must assess the credibility and weight of all available evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence, and every item of evidence does not have the same probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Competent lay testimony may not be rejected unless it is found to be mistaken or otherwise deemed not credible. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Further, lay evidence may not be deemed not credible solely due to the absence of contemporaneous medical evidence. Buchanan, 451 F.3d at 1337. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, there are no documented complaints or treatment for hearing loss, or a diagnosed hearing loss disability, in the Veteran's service records. The Board notes that, even if disabling hearing loss is not demonstrated at separation from service, the Veteran may still establish service connection for a current hearing loss disability by showing that he now has a hearing loss disability for VA purposes and that the current disability is related to his active service. See Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The evidence demonstrates a current bilateral sensorineural hearing loss disability, with pure tone thresholds above 40 decibels in multiple levels bilaterally. See, e.g., November 2012 VA examination; 38 C.F.R. § 3.385 (defining the minimum requirements for a hearing loss disability for VA purposes). As such, the Board will focus on whether the evidence shows a link to the Veteran's military service. With regard to military noise exposure, the Veteran has consistently reported being exposed to noise from artillery including tank guns while hauling ammunition for two to three years in service. He has also reported noise exposure while on the firing range and from aircraft noise during service. He states that he was not provided hearing protection during service. See, e.g., October 2010 Board hearing; May 2011 and November 2012 VA audiological examinations. There is no evidence of hazardous noise exposure in his service records, and no awards or decorations indicating combat service. Nevertheless, the Veteran is competent to report such noise exposure because it is factual in nature and is observable with his own senses. See Barr, 21 Vet. App. at 307-08; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such exposure is generally consistent with the circumstances of the Veteran's service and his military occupational specialty of special vehicle operator (as shown by his DD Form 214). There is no reason to believe that he did not have such exposure. Therefore, the Board acknowledges in-service noise exposure, as reported by the Veteran. The weight of the evidence also reflects that the Veteran had significant post-service noise exposure. In a July 2007 VA audiological consult, he was noted to have a history of noise exposure through military, occupational, and recreational activities. The Veteran described his military and post-service noise exposure in detail during the October 2010 Board hearing. He testified that he returned to farming after service, and then he went to work at a steel mill for about a year. The Veteran stated, "[T]hat wasn't what you'd call quiet around that steel mill." He also stated that the daily noise level at the steel mill was as loud as what he was exposed to during service, and no hearing protection was provided. The Veteran then worked as a truck driver for about 10 years and as a mechanic. Similarly, during the May 2011 VA audiological examination, the Veteran reported post-service noise exposure while working as a mechanic and when shooting a pistol for recreation. Although this examiner's etiology opinion was previously found to be inadequate, the Veteran's statements as to noise exposure remain probative. During a November 2012 VA audiological examination, the examiner stated that the Veteran reported post-military occupations that would have exposed him to some noise, although the Veteran denied any of them being "noisy" during the examination. The Veteran is competent to report that his post-service occupations were not noisy, as this is observable with his own senses. See Barr, 21 Vet. App. at 307-08; Jandreau, 492 F.3d at 1376-77. However, the Board finds this statement is inconsistent with his other statements during the course of the appeal, and particularly with his October 2010 hearing testimony, in which he expressly stated that the steel mill was as loud as his military noise exposure, and that no hearing protection was provided at that time either. Therefore, the more probative and credible evidence of record establishes that the Veteran significant noise exposure both during and after active service. With regard to the timing of the Veteran's hearing loss, as noted above, there are no document complaints or diagnosis of hearing loss in the Veteran's service records. It does not appear that any audiometric evaluations were performed at that time. In a January 1983 VA examination, nearly 40 years after the Veteran's discharge from service, the examiner recorded that hearing loss was not noted. The Veteran complained mainly of mental health and physical symptoms, with no complaints of hearing loss. No audiometric testing was performed at that time. During a July 2007 VA audiological consult, the Veteran reported having bilateral hearing loss of gradual progression. He also reported that his ears feel plugged up when they are full of cerumen, and that he has high blood pressure. Testing showed sensorineural hearing loss, and hearing aids were authorized and were later issued. During the October 2010 Board hearing, the Veteran denied complaining of any hearing problems or having any hearing tests during service, which the Board notes is consistent with his service records. However, the Veteran stated that he noticed hearing loss when he got out of service, which continued to the present. In contrast, during the November 2012 VA audiological examination, the Veteran reported that his hearing loss began 20 years ago. This would have been in the early 1990s, approximately 40 years after discharge from service. The Veteran is competent to report having observable symptoms of hearing loss continuously since his discharge from service, as he stated in the Board hearing. See Barr, 21 Vet. App. at 307-08; Jandreau, 492 F.3d at 1376-77. However, the Board finds that testimony to be of limited probative value as it is inconsistent with the other evidence. Further, this statement was made only after the claim for hearing loss was denied, or under circumstances indicating interest or bias (i.e., for the purposes of obtaining VA compensation). See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (lay testimony may not be ignored simply because the witness is an interested party, but such interest in the outcome may affect the credibility of testimony). The more probative and credible evidence establishes that the Veteran's hearing loss began many years after discharge from service. In particular, the Veteran's complaints of gradual hearing loss for treatment purposes in July 2007 are generally consistent with the notation of no hearing loss in the January 1983 VA examination, and with his report of noticing hearing loss approximately 20 years ago (or in the early 1990s) during the November 2012 VA audiological examination. Moreover, the Veteran sought service connection for other disabilities in December 1966 and August 1982, but he did not mention hearing loss at those times. Similarly, there was no indication of any hearing problems or complaints during VA social and industrial surveys in May 1968 and December 1971. Although the lack of reference to hearing loss at those times does not affirmatively establish no hearing loss, such evidence is probative as to the timing of the Veteran's symptoms. Additionally, in an April 2002 VA treatment session, the Veteran stated that he had not seen a doctor in 25 years. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (stating that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during military service, which resulted in a chronic or persistent disorder). The Veteran and his representative are not competent, as lay persons, to offer an opinion as to the cause of the current sensorineural hearing loss, to include whether it is due to his in-service noise exposure. Rather, this question requires specialized knowledge, training, or expertise due to the complex nature of the involved neurological system, particularly with the Veteran's history of post-service noise exposure and multiple medical conditions. See Barr, 21 Vet. App. at 308; Jandreau, 492 F.3d at 1377. As such, these lay opinions are not probative. The November 2012 VA audiological examiner opined that the Veteran's current sensorineural hearing loss is less likely as not (less than 50 percent probability) caused by or result of his military noise exposure. The examiner acknowledged the Veteran's assertions of hearing loss beginning during service, and that no audiometric hearing evaluations conducted during service. She also observed the notation in the January 1983 evaluation that no hearing loss was noted at that time, although this could have been a subjective observation of the examiner at that time. Additionally, the November 2012 examiner noted that the Veteran reported during this examination that his hearing loss began 20 years ago (or approximately 40 years after discharge from service). The examiner also noted the Veteran's reports of military and post-service occupational noise exposure, although he claimed that the post-service exposure was not "noisy." Upon consideration of all available evidence in the claims file, the examiner concluded that the Veteran's current hearing loss is less likely than not related to his military service. The Board finds this opinion to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, including both the medical and lay evidence, and supported by well-reasoned explanation. Further, the examiner's findings are consistent with the Board's credibility findings herein as to the degree of the Veteran's post-service noise exposure and the timing of his observable hearing loss symptoms. Accordingly, this opinion is found to carry significant weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). As noted above, the Veteran and his representative are not competent to offer an etiological opinion. Additionally, the Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Rather, the Veteran testified during the October 2010 Board hearing that no audiologist or provider had ever told him that his hearing loss is due to service. In sum, the evidence does not show a chronic hearing loss disability during active service or to a compensable degree within one year after service, and there is no competent evidence linking the Veteran's current disability to service. As such, service connection may not be granted on a direct or presumptive basis. TDIU The Veteran contends that he is unemployable due to service-connected disability. A total disability rating may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran is service-connected for a myofibrositis of the lumbar spine and anxiety disorder. The lumbar spine disability has been rated as 10 and 20 percent disabling, and anxiety has been rated as 30 percent disabling throughout the appeal. The combined rating has remained at 40 percent. See, e.g., June 2012 rating decision and code sheet. Therefore, the Veteran does not meet the percentage threshold criteria for a TDIU under 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation and Pension 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 38 C.F.R. § 4.16(a). Id. In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The 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, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107. Here, the Veteran has been unemployed since 1981. He is in receipt of Social Security Administration benefits based on age, and he was never granted Social Security Administration disability benefits. The Veteran is over 90 years of age, and he has multiple nonservice-connected physical disabilities. As noted above, the Veteran is only service-connected for his lumbar spine disability and anxiety disorder. Although the Veteran previously sought service connection for several additional disabilities, including the right hip and right knee, those claims were all finally denied and not appealed. See, e.g., September 2011 Board decision (denying service connection for the right hip, and this issue was not appealed to the court); June 2012 rating decision and code sheet. A December 1971 social and industrial survey indicates that the Veteran completed school through the 8th grade, and began to work full-time in the family farm at age 14 before joining the military. More recently, he has also reported completing a few months of college. The Veteran has worked in various types of employment since service, including farming, manufacturing mobile homes, the steel industry, and mechanical work. He has reported retiring in 1981 due to eligibility by age or duration of work, as well as medical problems including the back. See, e.g., May 2009 VA spine examination, January 2011 VA mental health examination, May 2011 VA general medical examination; October 2010 hearing. The nature and severity of the Veteran's disabilities in relation to his employment is intertwined with his need for aid and attendance. Therefore, the Board will summarize all pertinent evidence in this section, and apply the regulations below. During VA examinations in April 2008 and May 2009, the Veteran's lumbar spine was noted to have no effects on feeding, bathing, dressing, toileting, or grooming, although he had changed from a bath to a shower by April 2008 due to back problems getting in and out of the tub. In April 2008, the back was noted to have mild effects on chores and shopping; and in May 2009, the back was noted to have moderate effect on shopping and severe effect on chores. The back had no effect on traveling in April 2008, but the examiner stated there was a mild effect on traveling in May 2009, in that the Veteran was unable to drive due to aggravation of the back and must have a driver, but he traveled well as a passenger for short drives. The Veteran has been receiving fairly regular assistance from home health care services or from family members since September 2009. He continues to live at home alone, but he has needed assistance to varying degrees with moving around indoors (even with a cane, walker, or scooter), preparing meals, performing housework, bathing, grooming, dressing, and toileting. See, e.g., VA treatment records dated in August 2009, December 2010, January 2011, June 2011; January 2011 VA mental health examination, May 2011 VA general medical examination. In an August 2010 examination for housebound status and need for regular aid and attendance, the Veteran was noted to have diagnoses including arthritis, hypertension, chronic kidney disease, and unspecified. He was 91 years old with steady gait, and arthritis was noted to restrict his activities and functions. He was able feed himself, but unable to prepare his own meals, and he needed assistance to bathe, meet hygiene needs, button clothes, and shave. The Veteran needed a walker to ambulate and had a high risk of falling, and he was noted to be unable to ambulate well due to hip pain. He also had restricted flexion of the spine, as well as occasional urinary incontinency. The Veteran was not confined to bed, and he generally left the home two to three times per week for medical appointments. In a May 2011 VA general medical examination, the Veteran reported lumbar spine pain occurring one to two times weekly for a few hours at a level of one to two or moderate level, which is alleviated by rest. He also complained of constant right hip pain since falling in January 2008. The Veteran reported being unable to walk without use of a cane, and he was noted to have a limp with the right hip. The examiner stated that the Veteran's right hip seemed to be more significant of a problem with range of motion than the back. There was no evidence of lumbar radiculopathy, and the right hip was found to be unrelated to the back. The Veteran also had multiple other physical disabilities. The examiner summarized that the Veteran's lumbar spine disability had moderate effects on chores and shopping, and no effects on feeding, bathing, dressing, toileting, or grooming. The examiner opined that the Veteran could do sedentary to light duty occupations with his back disability. In an August 2011 VA orthopedic consult, the Veteran complained of right hip or groin pain all the time, causing difficulty getting in and out of his vehicle and difficulty getting to socks and shoes, and difficulty with stairs. He reported using a cane, a walker with a seat in it, and a Hoverround motorized wheelchair. In an August 2011 statement, the Veteran's daughter or daughter-in-law (S.S.), who has been assisting with his care since about 2009, asserted that he cannot stand for very long due to back and hip problems. She stated that he has difficulty lifting, carrying, bending, stooping, lifting the legs, using stairs, or walking without a railing, and he is dependent on a walker. S.S. stated that the Veteran also has difficulty bathing or showering due to problems standing without support, and difficulty lifting his legs over the edge of the tub. The Veteran cannot manage housework, yard work, or preparing meals due to needing to use the walker. S.S. stated that he has pain in the legs and feet while sitting and standing due to circulation and back problems. He needs help with shopping and errands due to problems getting in and out of a vehicle. S.S. stated that he Veteran does not want hip surgery because he believes he will not live long enough to benefit from it. During a January 2011 VA mental health examination, the Veteran reported feeling anxious at times but denied any major trouble with anxiety recently, stating that he has learned to control his anxiety over the years. He denied missing any time from work due to anxiety or depression in the past. The examiner summarized that the Veteran has mild mental health symptoms that did not appear to interfere with his ability to perform occupational tasks. The examiner also noted that he needs assistance in most areas of function at that time, but this appeared to be age-related. The Veteran again denied any symptoms or treatment for anxiety in a May 2011 VA examination, stating that he can control it although he has irritability at times. In a March 2012 statement, the Veteran described difficulty working in the past due to his back and the need for a back brace. He further stated that he fell and hurt his right hip due to back pain in January 2008, and that he now uses a wheeled walker with hand brakes and a small seat to get around the house due to constant hip pain. VA treatment records dated through August 2012 (contained in the virtual file) reflect similar symptoms and disabilities as summarized above. Upon consideration of all lay and medical evidence of record, the Board finds that the Veteran's service-connected lumbar spine disability and anxiety disorder do not render him unemployable. Rather, the effects of these disabilities have generally been noted to be mild or moderate, which is reflected by the currently assigned ratings of 20 percent for the back disability and 30 percent for anxiety. Indeed, the Veteran has indicated that he is generally able to control his anxiety symptoms on his own. The January 2011 VA mental health examiner noted that this disability was not severe enough to affect his occupational functioning. This examiner also noted that the Veteran appeared to need assistance in most areas of function at that time, but that this appeared to be age-related. Additionally, the May 2011 VA examiner noted that the Veteran's right hip appears to bother him more than the back, and opined that the Veteran could do sedentary or light duty occupations with his back disability. This is generally consistent with the other evidence of record. In particular, the Veteran has complained primarily of problems due to the right hip and legs, and he has been noted to be unstable due primarily to the right hip and legs. Although the Veteran believes that this condition is related to his back disability, service connection was previously denied for the right hip disability. He is also not service-connected for the legs, and the May 2011 examiner found no evidence of lumbar radiculopathy. Based on the foregoing, the evidence does not establish that the Veteran is unemployable for VA purposes due to his service-connected lumbar spine or mental health disabilities. Although the Veteran's mental health and lumbar spine disabilities affect his employability, this interference is contemplated by the compensable ratings that have been assigned for such disabilities. The criteria in VA's rating schedule are designed to compensate for average impairments in earning capacity, and the ratings are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In sum, the Veteran does not meet the minimum thresholds for eligibility for a TDIU, and the preponderance of the evidence is against a finding that he is unemployable due solely to service-connected disabilities. SMC: Aid and Attendance The Veteran claims entitlement to SMC based on the need for regular aid and attendance, or by reason of housebound status. These matters are governed by the provisions of 38 U.S.C.A. § 1114 (l), (s); and 38 C.F.R. § 3.350(b), (i). First, special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). (This is different from special monthly pension, which would be based on all disabilities rather than only those that are service-connected. See 38 C.F.R. § 3.351.) The criteria for establishing whether the Veteran is bedridden, or is in need of regular aid and attendance of another person, are set forth in 38 C.F.R. § 3.352(a). The criteria for aid and attendance are: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id.; see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on the need for aid and attendance). "Bedridden" status will also be a proper basis for a determination of the need for regular aid and attendance of another person. For these purposes, "bedridden" means a condition that, through its essential character, actually requires that the claimant remain in bed. The fact that he has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). Second, under 38 U.S.C.A. § 1114(s), special monthly compensation is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. 1114(s). The criteria of a single disability rated at 100 percent may be satisfied by the grant of a TDIU based on a single disability under certain circumstances. See Bradley v. Peake, 22 Vet. App. 280 (2009); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). The requirement of 38 U.S.C.A. § 1114(s)(2) will be met if the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 C.F.R. § 3.350(i)(2). Here, the Veteran does not contend, nor does the evidence show, that he has service-connected anatomical loss or loss of use of both feet or of one hand and one foot, or blindness or has visual acuity of 5/200 or less in both eyes. During the period on appeal, the Veteran has been service-connected for the myofibrositis of the lumbar spine, rated as 10 and 20 percent disabling, and anxiety disorder, rated as 30 percent disabling. See June 2012 rating decision and code sheet. His claim for TDIU is denied herein. Although the Veteran previously sought service connection for several additional disabilities, including the right hip, those claims were all denied. Therefore, in order to be entitled to SMC under 38 U.S.C.A. § 1114(l), the evidence must show that he is permanently bedridden or in need of aid and attendance due to his lumbar spine disability and anxiety disorder. As summarized above, the evidence of record shows that the Veteran continues to live at home, but he has been receiving assistance from home health care services or from family members since September 2009. He has needed assistance to varying degrees with moving around indoors (even with a cane, walker, or scooter), preparing meals, performing housework, bathing, grooming, dressing, and toileting. Nevertheless, the Veteran has multiple nonservice-connected disabilities, including significant problems with the right hip, and he is over 90 years of age. Although the Veteran and his daughter or daughter-in-law (S.S.) have asserted that he needs assistance due to his service-connected disabilities, this is not supported by the other lay and medical evidence of record. Rather, statements by the Veteran and in the medical records indicate that his lumbar spine and anxiety disabilities are generally mild or moderate in nature, which is consistent with the currently assigned disability ratings and with his overall 40 percent rating. Instead, the Veteran generally complains of problems due to the legs and right hip, and he has been noted to have other problems due to age and other physical disabilities. The lumbar spine was repeatedly noted to have no effect on the Veteran's ability to dress himself, maintain hygiene, feed himself, or attend to toileting needs. Although the Veteran was noted to have changed from a bath to a shower in the April 2008 VA examination due to problems getting in and out of the tub due to the back, he was still able to shower and care for himself even with his back problems at that time. The August 2010 examiner for the purposes of aid and attendance noted the Veteran's back condition as well as multiple nonservice-connected conditions including hypertension, chronic kidney disease, and unspecified arthritis. This examiner specified that the Veteran could not ambulate well due to hip pain. As such, while the Veteran is clearly in need of regular aid and attendance, the Board finds that the preponderance of the evidence is against a finding that this is due to his service-connected disabilities of the lumbar spine and anxiety. With regard to entitlement to SMC under 38 U.S.C.A. § 1114(s), the Veteran does not have a service-connected disability rated as 100 percent disabling, based either on a single disability or on TDIU (which is denied herein). Moreover, the Veteran does not also have another disability rated as 60 percent disabling. Rather, his service-connected disabilities have been rated as no more than 20 and 30 percent disabling. The Veteran is also not housebound, as he leaves his house on a regular basis. Thus, he does not meet the requirements of 38 U.S.C.A. § 1114(s)(2), and special monthly compensation at the housebound rate is not warranted. In sum, the Veteran does not meet the criteria for entitlement to special monthly compensation due to the need for regular aid and attendance of another person, or by reason of housebound status, for the reasons discussed above. Conclusion The Board is sincerely grateful for the Veteran's honorable and faithful military service. There is no doubt that he is sincere in his belief that his current bilateral hearing loss disability is related to his service, and that he is unemployable and is entitled to special monthly compensation due to service-connected disabilities. Nevertheless, the Board has carefully reviewed the record in depth, and there is no basis upon which the Veteran's claims for service connection, TDIU, or special monthly compensation due to the need for aid and attendance or housebound status may be granted. The Board has also considered the benefit of the doubt rule in this case; however, as the preponderance of the evidence is against the Veteran's claims, the evidence is not in equipoise, and there is no basis to apply it. See U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Thus, the claims are denied. ORDER Service connection for bilateral hearing loss is denied. Entitlement to a TDIU is denied. Entitlement to SMC based on the need for regular aid and attendance or housebound status is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs