Citation Nr: 1327596 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 10-11 525 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a disability manifested by dizziness, claimed as Meniere's disease, including on a secondary basis. 2. Entitlement to an increase in the 30 percent evaluation currently assigned for bilateral defective hearing. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). 4. Entitlement to special monthly compensation based on the need for aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from December 1942 to October 1945 and from May 1949 to January 1971. By rating action in April 2004, the RO denied service connection for dizziness, claimed as secondary to service-connected defective hearing. By rating action in August 2006, the RO declined to reopen the claim for dizziness secondary to hearing loss. The Veteran and his representative were notified of this decision and did not appeal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the RO which, in part, declined to reopen the claim for dizziness, and denied the remaining issues currently on appeal. The Board remanded the issues on appeal in October 2009, to provide the Veteran with a statement of the case (Manlicon), which was subsequently promulgated in March 2010, and he perfected his appeal in March 2010. In December 2011, the Board, in part, reopened the claim of service connection for dizziness, and remanded the issues for additional development. Please note 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. A disability manifested by dizziness, including Meniere's disease was not present in service or until many years thereafter, and there is no persuasive competent evidence that any current dizziness or Meniere's disease is causally or etiologically related to, or aggravated by a service-connected disability. 2. The Veteran's defective hearing is manifested by no greater than a Level VI hearing loss in the right ear and Level VII in the left ear. 3. The Veteran's service-connected disabilities include bilateral defective hearing and anxiety disorder; each rated 30 percent disabling, cellulitis of the left lower extremity; rated 20 percent disabling, tinnitus and constipation associated with anxiety disorder; each rated 10 percent disabling, and dermatitis and cellulitis of the right lower extremity; each rated noncompensably disabling. The combined rating is 70 percent; effective from August 19, 2008. 4. The Veteran has a four year college education, was a Lt Colonel when he retired after 23 years of active service and has occupational experience as counselor for a state retirement system; he reportedly last worked in 1989. 5. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment. 6. The Veteran is not blind, nor does he have loss of use of both feet or one hand and one foot as the result of his service-connected disabilities, and is not bedridden or helpless due to his service-connected disabilities. 7. The Veteran does not have a single service-connected disability ratable at 100 percent disabling with additional service-connected disability or disabilities independently ratable at 60 percent, nor is he permanently housebound by reason of service-connected disabilities that substantially confine him to his dwelling or immediate premises. CONCLUSIONS OF LAW 1. The Veteran does not have a disability manifested by dizziness, including Meniere's disease due to disease or injury which was incurred in or aggravated by service, nor is any current disorder causally or etiologically related to, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310 (2012). 2. The criteria for an evaluation in excess of 30 percent for bilateral defective hearing are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.655, 4.3, 4.85, 4.86, Part 4, including Diagnostic Code 6100 (2012). 3. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 3.655, 4.16 (2012). 4. The criteria for the award SMC based on the need for the regular aid and attendance or on account of being housebound have not been met. 38 U.S.C.A. §§ 1114, 1502(c), 1521(e), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.351(d), 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in March 2008 (dizziness), April 2008 (TDIU), June 2008 (AA&HB), and November 2008 (Meniere's disease). See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. Furthermore, based on the communications sent to the Veteran and his representatives over the course of this appeal, he has shown actual knowledge of the evidence that he is required to submit in this case. Based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail on his claim. As to VA's duty to assist, the Board finds that, to the extent possible, all necessary development has been accomplished and, therefore, appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and was scheduled for a personal hearing, but withdrew his request due to health reasons, and indicated that he did not want to reschedule. The Board finds that the VA examinations in October 2008, and January 2012 and 2013 were comprehensive in scope, included a discussion and analysis of the Veteran's medical history and clinical findings, and are adequate to render a fair and impartial determination on the merits of the issues on appeal. At this point, it should be noted that due to severe Parkinson's disease (nonservice-connected), the Veteran is bedridden and was unable to come to a VA facility for an audiological examination in November 2012. The Veteran was afforded an onsite VA examination at his residence for aid and attendance and housebound purposes in January 2013, but a more current audiological examination could not be conducted due the cumbersome nature of the audiology equipment. Therefore, the Board will rely on the audiological findings from the most recent VA examination conducted in October 2008. Finally, the case has been subject to a prior Board remand. To the extent possible, the AMC completed all of the requested actions, including conducting VA examinations in January 2012 and 2013, to determine the severity of his service-connected disabilities for TDIU and AA & HB status, and associated all available VA treatment records with the claims folder and virtual VA. Under the circumstances, the Board finds that the AMC substantially complied with the December 2011 remand orders and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection - In General Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection also may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2012). Also, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Dizziness & Meniere's Disease Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the claims file, including the Veteran's numerous letters and the VA medical reports of record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran does not contend, nor do the STRs show any complaints, treatment, abnormalities or diagnosis for dizziness or Meniere's disease in service or until nearly three decades after service. (See May 2002 VA neurology note). Rather, the Veteran asserts that his dizziness is a manifestation of Meniere's disease and believes that it is due to a service connection disability, including his defective hearing and tinnitus or possibly his anxiety disorder. The Veteran also submitted multiple copies of an article on the subject of Meniere's disease and related symptoms. The evidence of record showed that the Veteran first reported a history dizziness when seen by VA in May 2002, and said that it had been present for two years. The diagnosis was "memory loss and dizziness of unclear etiology. However, the examination was within normal limits." Regarding the Veteran's contentions, while he is competent to describe his experiences and symptoms, the etiology of his dizziness or Meniere's disease may not be diagnosed via lay observation alone, and he is not shown to have the expertise to provide an opinion concerning the complex medical question of the nature or etiology of the claimed disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue of whether his dizziness or Meniere's disease is due to service or to a service-connected disability, this question falls outside the realm of common knowledge of a lay person. See Jandreau, at 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Moreover, the Veteran has not submitted any competent medical evidence relating his current dizziness or Meniere's disease to a service-connected disability. At this point, the Board notes that the evidence of record includes numerous statements by various VA medical professionals to the effect that the etiology of the Veteran's dizziness is most likely multifactorial in nature and not related to his hearing loss or tinnitus. (See, i.e., July 2003 VA neurology note). Although the record includes a diagnosis of Meniere's disease by several VA healthcare providers, it appears that the diagnosis were based on the Veteran's reported symptoms and not confirmed by any objective or diagnostic study. In any event, a VA treating physician familiar with the Veteran's medical history opined that he has Meniere's disease (see December 2012 VA examination report). Thus, the Board will concede that the Veteran's dizziness is a manifestation of Meniere's disease. When examined by VA in December 2012, the Veteran was bedridden and unable to move without assistance due to the severity of his Parkinson's disease. The examiner indicated that the Veteran rarely got out of bed, and that he did not complain of or experience dizziness as much as he used to. Referring to specific medical literature, the examiner noted that the etiology, pathophysiology and clinical course and treatment of Meniere's disease was poorly understood. While hearing loss, tinnitus and dizziness were symptoms associated with Meniere's disease, the etiology of the Veteran's Meniere's disease was unknown. The examiner also indicated that it is unclear why excessive fluid builds up in the endolymphatic spaces of the inner ear, and that excessive fluid can cause hearing loss and tinnitus. However, hearing loss and tinnitus, alone do not cause Meniere's disease. The examiner opined that it was less likely than not that the Veteran's defective hearing and tinnitus caused or otherwise aggravated his Meniere's disease, and that there was no evidence that his service-connected anxiety disorder caused or worsened his Meniere's disease beyond its natural progression. As there is no evidence of dizziness or Meniere's disease in service or until some 30 years after service, and no competent medical evidence of a causal connection between the Veteran's Meniere's disease and his service-connected defective hearing, tinnitus or anxiety disorder, the record affords no basis for a favorable disposition of this appeal. Accordingly, service connection for a disability manifested by dizziness or Meniere's disease, including secondary to a service-connected disability is denied. Based on the discussion above, the Board finds that the preponderance of the competent probative medical evidence is against the claim. Therefore, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Under the rating schedule, evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87 and Diagnostic Codes 6100-6110 (2012). Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations also include two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. 38 C.F.R. § 4.86(a), provides that if puretone thresholds at each of the four frequencies of 1,000, 2,000, 3,000, and 4,000 Hz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible), the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Defective Hearing As noted above, because of the Veteran's severe Parkinson's disease, VA was unable to obtain a current audiological examination. The Veteran was afforded a VA audiological examination during the pendency of this appeal, however, the most recent examination was conducted in October 2008. Under the circumstances, the Board is constrained to rely on the findings from the October 2008 VA examination. The puretone threshold, in decibels, on that examination were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 75 75 80 75 76 LEFT 75 70 80 90 79 The examiner indicated that word recognition scores should not be used in consideration of the Veteran's claim, because he had difficulty with recorded materials and because work recognition scores with recorded speech differed significantly from word recognition scores with monitored live voice speech. Therefore, the word recognition scores were not considered reliable. The examiner indicated that the Veteran had severe sensorineural hearing loss in the right ear and severe to profound, predominantly sensorineural hearing loss in the left ear. The average puretone decibel loss for the Veteran's hearing, achieved by adding the loss at 1,000, 2,000, 3,000, and 4,000 Hz and dividing by four, was 76 in the right ear, and 79 in the left ear. In this case, the Veteran's audiological findings satisfied the provisions of § 4.86(a). That is, puretone thresholds were 55 decibels or more at each of the four frequencies in each ear, and the VA audiologist indicated that use of the speech discrimination test was not appropriate because of language difficulties and inconsistent speech discrimination scores. Therefore, reference must be made to Table VIA (38 C.F.R. § 4.85) for assignment of a percentage evaluation and assignment of a diagnostic code. The resulting numeric designation from Table VIA for the right ear was VI, and for the left ear was VII. The point of intersection on Table VII for both sets of designations warrants a 30 percent evaluation. Thus, application of this provision of the rating schedule for exceptional patterns of hearing impairment would not result in a higher evaluation than currently assigned. The RO has applied the rating schedule accurately, and there is no basis under the applicable criteria for the assignment of an evaluation in excess of 30 percent. Audiometric testing results are dispositive evidence in a claim for a compensable rating for hearing loss. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the manifestations of the Veteran's hearing loss are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestation related to the service-connected disability is unusual or exceptional. The schedular rating criteria adequately contemplates the degree of impairment caused by his hearing loss, and provides for a higher rating with more severe audiological findings. In view of this, referral of this case for extraschedular consideration is not in order. TDIU The Veteran contends that he is unemployable due to his multiple service-connected disabilities. The Veteran asserts that he is in his 80's, and that it was unlikely that he could find employment due primarily to his hearing loss, as he is totally deaf without hearing aids. (See Veteran's June 2008 statement). Under the applicable criteria, a total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Id. In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331- 332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2012). Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2012). The evidence shows that the Veteran has a college education, that he retired from military service as a Lt Colonel with more than 23 years of service, and that he worked as an interviewer for a state retirement agency until 1989, when he retired. The Veteran's service-connected disabilities include bilateral defective hearing and anxiety disorder; each rated 30 percent disabling, cellulitis of the left lower extremity; rated 20 percent disabling, tinnitus and constipation associated with anxiety disorder; each rated 10 percent disabling, and dermatitis and cellulitis of the right lower extremity; each rated noncompensably disabling. The combined rating is 70 percent. In this case, the Veteran's combined rating is 70 percent, and his service-connected anxiety disorder (30 percent) and constipation associated with his anxiety disorder (10 percent) are derived from a common etiology. Therefore, the two disabilities satisfies the criteria for a single service-connected disability rated 40 percent disabling. Thus, the Veteran satisfies one element of the schedular criteria for a total disability rating based on individual unemployability. However, the evidence must also show that the Veteran is, in fact, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The question is not whether the Veteran can find employment, but whether he is capable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this regard, the Veteran was examined by VA psychiatric and audiological services in October 2008, to determine the current severity of his service-connected disabilities and how they impacted on his employability and possible need for aid and attendance. The examiner's indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history and findings on examination. On mental status examination, the Veteran's appearance, attitude and behavior was generally within normal limits. His attire was casual, neat, and appropriate and his hygiene and grooming were good. The Veteran was fully cooperative and made good eye contact. His speech was, for the most part, relevant, coherent and productive, but at times was somewhat rambling and he needed to be redirected to the subject matter. His thought process was rational and goal directed and there was no evidence of hallucinations, delusions, obsessions, compulsions, phobias or ritualistic behaviors. He was well oriented and his short-term memory was intact, though the Veteran did report ongoing problems with his short-term memory. The Veteran's mood was pleasant and euthymic, his affect was appropriate and full range, and his intellectual level was above average. The examiner indicated that he evaluated the Veteran on two prior occasions, in August 2006 and November 2008, and that his generalized anxiety disorder on those occasions was mild. Since then, there had been some mild improvement in his symptoms overall, though he still had some persistent anxiety symptoms at a mild level. The examiner noted that the Veteran's medications had stabilized his symptoms and that in some areas, they had mildly improved. He noted that the Veteran was prone to distress episodes, including excessive worry, brooding and ruminations about daily stressors and apprehension about ongoing and usually routine issues in his life. On the other hand, he noted that the Veteran has some significant stress in his life with regard to his wife who was schizophrenic with dementia (now deceased) and his significant medical issues, which exacerbate his generalized anxiety at times. He also indicated that the Veteran would have some mild, episodic irritability, but that overall, his impulse control was good. The Veteran's sleep was generally adequate, his mood was positive and he was not prone to panic attacks. The Veteran denied any crying spells and was not suicidal or homicidal. There was no evidence of mania, psychosis or a personality disorder, and the Veteran's insight and judgment were generally good. The diagnosis was generalized anxiety disorder, chronic, mild and the Global Assessment of Functioning (GAF) score was 72. The examiner commented that there was no significant impairment regarding the Veteran's basic competence of maintaining himself in the community and carrying out the activities of daily living. He opined that the Veteran's current level of personal and social adjustment was mildly impaired due to ongoing mild and usually episodic generalized anxiety symptoms. The Veteran continues to have episodes of excessive worry and recurring episodes of tension, anxiety and feeling keyed up, and that at times, he cannot relax and is restless. The examiner noted, however, that when the Veteran was employed, his anxiety symptoms did not cause any marked impairment in his work functioning, and that if he were a candidate for employment, the current severity of his symptoms would not likely cause any major work-related impairments. He opined that the Veteran's anxiety had stabilized at a mild level and his prognosis was good. The VA audiological examiner indicated that while the Veteran's hearing impairment without use of hearing aids would cause problems for him in the work force, but that he would be able to function with minimal difficulty when wearing hearing aids or using a phone with amplification capabilities. The audiologist opined that with amplification and reasonable accommodations as specified in the American with Disabilities Act, the Veteran's hearing loss alone would not significantly affect vocational potential or limit participation in most work activities. Employment would be more than feasible in a loosely supervised situation, requiring little interaction with the public. On VA general examination in January 2013, the Veteran's service-connected cellulitis of the feet was well controlled with topical medication, and he was not shown to have any debilitating episodes associated with his skin disorder. There was a 10 cm linear scar on each lower extremity. The scars were not disfiguring, tender or painful, and did not cause any functional impairment. The Veteran's service-connected constipation was controlled with medication and did not cause any episodes of bowel disturbance, abdominal distress or weight loss. The Veteran's dermatitis of the hands was asymptomatic and did not cause any impairment of the upper extremities. In this case, the evidence shows that while the Veteran continues to have episodic irritability, tension and worry associated with his anxiety disorder, it is not shown to cause more than mild social or industrial impairment. Likewise, the Veteran's hearing acuity is improved with use of hearing aids, and is not shown to have any significant impact on his employability. His skin disorders of the hands and feet are well controlled with medication and do not cause any functional impairment, and the Veteran reported that he was easily able to ignore his tinnitus when it occurs. (See October 2008 VA audiological examination). While the Board cannot consider the Veteran's age in determining employability, the fact that he will be 88 years old in September, and has a number of significant nonservice-connected disabilities, including Parkinson's disease, hypertension, multiple joint arthritis and benign prostatic hyperplasia (BPH), certainly limits his prospects for finding or maintaining employment. The evidence shows that the Veteran's severe Parkinson's disease has left him essentially bedridden, and that his general state of health is rather poor. Furthermore, the Veteran has not provided any credible or competent medical evidence to support his contentions that he is unemployable by reason of his service-connected disabilities, alone. The Board does not dispute that the Veteran experiences some industrial impairment due to his service-connected disabilities. However, the degree of impairment is adequately reflected by the combined schedular rating of 70 percent. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record fails to show that the Veteran's service-connected disabilities, either singularly or in combination, are so severely disabling as to render him unable to secure or follow substantially gainful employment. Accordingly, the Board finds that the evidence does not demonstrate that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful employment. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Special Monthly Compensation (SMC) A veteran shall be considered to be in need of a regular A&A if he or she has the anatomical loss or loss of use of both feet, one hand and one foot, or is so helpless or blind or permanently bedridden as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). In determining whether a veteran is helpless or nearly so helpless as to require the regular A&A of another person, the following circumstances will be considered: Inability of the veteran 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of the veteran to feed himself through loss of coordination of upper extremities or through 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 hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 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 decision is permissible. Particular personal functions which 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 he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). However, it is logical to infer a threshold requirement that "at least one of the enumerated factors be present." Turco, 9 Vet. App. at 224. "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a). To establish entitlement to special monthly compensation based on housebound status under 38 U.S.C.A. § 1114(s), the evidence must show that a veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). In this case, the Veteran is neither blind nor bedridden, nor confined to a nursing home or to a wheelchair due to his service-connected disabilities. While the Veteran is essentially confined to his bed, needs a wheelchair to ambulate, and is in need of assistance in performing some routine activities of daily living, the medical evidence shows that this is due to his nonservice-connected Parkinson's disease. As discussed above, the Veteran's generalized anxiety disorder does not cause more than mild social and industrial impairment and his hearing loss does not significantly impair his ability to communicate his needs or to request assistance in performing routine daily activities. The Veteran reported that his tinnitus did not cause him any appreciable problems, and his skin disorder of the feet and hands are well controlled with medications and do not cause any functional impairment. In this case, the evidence of record does not show that the Veteran is impaired by his service-connected disabilities [emphasis added] to the extent that he is unable to protect himself from the ordinary hazards or dangers incident to his daily environment. In short, the evidence simply does not show that he requires regular aid and attendance due to his service-connected disabilities, alone. Based upon the medical evidence of record, the Board finds that the preponderance of the evidence weighs against entitlement to SMC based on a need for the regular aid and attendance of another person. Finally, the evidence does not show that the Veteran is housebound or confined to his immediate premises due to his service-connected disabilities. Moreover, the Veteran does not have a single service-connected disability rated 100 percent disabling. A single disability rated 100 percent is a threshold requirement for housebound status. Thus, the analysis need proceed no further. Where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, entitlement to SMC based upon being housebound is denied. ORDER Service connection for a disability manifested by dizziness, including Meniere's disease is denied. An increased evaluation for bilateral defective hearing is denied. Entitlement to TDIU is denied. Entitlement to SMC based on the need for regular aid and attendance or on account of being housebound is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs