Citation Nr: 1742849 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 09-45 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an extraschedular evaluation, greater than 40 percent, for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability as due to service-connected disability (TDIU). 3. Entitlement to Special Monthly Compensation (SMC) due to the regular need for the aid and attendance of another person. REPRESENTATION Veteran represented by: Andrew Rutz, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty for training with the United States Army Reserve from November 1976 to June 1977, and on active duty from October 1990 to May 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2015 and May 2016, the Board remanded this matter for further development. In July 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ); a copy of the transcript is associated with the claims file. The VLJ who conducted the hearing is no longer employed by the Board. The Board recognizes that the law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C.A. § 7101(c) (West 2014); 38 C.F.R. § 20.707 (2016). In this case, the Veteran was notified that the VLJ who conducted his hearing was no longer employed by the Board in a December 2016 letter. He was offered the opportunity to have a new hearing. In a January 2017 statement, the Veteran indicated that he did not desire a new hearing and wished to proceed on the evidence of record. Thus, the Board will proceed with adjudication of the matters on appeal without additional hearing testimony. The Board observes that in a May 2017 rating decision, the RO denied the Veteran's service-connection claim for depression. The Veteran filed a Notice of Disagreement in June 2017. Although a Statement of the Case has not yet been issued, review of the record indicates that the RO has acknowledged receipt of the Veteran's Notice of Disagreement (see a June 2017 acknowledgment letter to the Veteran), and is taking action on the appeal. As the RO has acknowledged receipt of the Notice of Disagreement, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a Notice of Disagreement had not been recognized. As the RO is properly addressing the Notice of Disagreement, no action is warranted by the Board. During the course of the appeal, the Veteran changed representation from Illinois Department of Veterans Affairs to attorney Andrew Rutz. See July 2011 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative and November 2016 VA Form 21-22a, Appointment of Individual as Claimant's Representative. FINDINGS OF FACT 1. Referral for extraschedular consideration of low back disability is not warranted, as the rating criteria reasonably describe the Veteran's disability level and symptomatology. 2. The Veteran's service-connected low back disability did not make him unable to obtain and maintain substantially gainful employment consistent with his educational and occupational background. 3. The Veteran does not require the regular aid and attendance of another due to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular rating have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 3.321(b)(1) (2016). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.16 (2016). 3. The criteria for SMC for aid and attendance of another have not been met. 38 U.S.C.A. §§ 1114 (West 2014); 38 C.F.R. §§ 3.352 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to an Extraschedular Evaluation The Veteran is service-connected for low back disability with a rating of 40 percent throughout the appeal period. The Board has considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2016). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. Only if the criteria do not reasonably describe the claimant's disability level and symptomatology, then a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this case, the lay and medical evidence fails to show unique or unusual symptomatology regarding the Veteran's low back disability that would render the schedular criteria inadequate. The Veteran's symptoms, including pain and limitation of motion, are contemplated in the disability rating assigned. See generally, 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. At his most recent spine examination in December 2015, the VA examiner opined that the Veteran's low back disability was moderate, manifesting in limitation of flexion to 90 degrees, with painful motion. The Veteran reported no flare-ups at this examination, and identified no pain, weakness, fatigability or incoordination significantly limiting his functional ability with repeated use over a period of time. He had no identified neurologic abnormalities. Although the Veteran's back pain has been shown to interfere with locomotion, sitting and standing for long periods, these functional effects are contemplated by the 40 percent rating already assigned. Indeed, the basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. Thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he has merely disagreed with the assigned disability ratings for his level of impairment. As the Veteran has no other service-connected disabilities other than his low back disability, there is no allegation or indication that the combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's back disability are considered by the schedular ratings assigned. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Entitlement to TDIU The Veteran also seeks TDIU, asserting that he is unable to work due to his service-connected low back disability. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a) (2016). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2016). A total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable solely by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2016). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition of some functional impairment. The ultimate question is whether the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disability, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 38 C.F.R. § 4.16(b) requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. The Veteran's service-connected disabilities, employment history, and educational and vocational attainment are considered under 38 C.F.R. § 4.16(b). In this case, the Veteran is service-connected for a low back disability, rated 40 percent disabling. Thus, he does not meet the schedular criteria for a TDIU award under 38 C.F.R. § 4.16(a). As the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected low back disability, referral of the Veteran's TDIU claim for extraschedular consideration under 38 C.F.R. § 4.16(b) is also not warranted. The Veteran completed high school, and began studying law enforcement before leaving for service but did not complete the law enforcement training. See November 2010 VA Treatment Record. It also appears the Veteran had some training in electronic assembly procedures at the Industrial Skill Center. See 1996 VA Vocational Rehabilitation Narrative Report. In service, the Veteran worked as a mail handler and ran the mailroom. See November 2011 Vocational Rehabilitation Assessment; January 2011 Vocational Rehabilitation Assessment. Historically, the Veteran has worked as a mailman, janitor, car wash employee, landscaper, painter, cook, and laborer. See November 2010 VA Treatment Record; November 2011 Vocational Rehabilitation Assessment; 1996 VA Vocational Rehabilitation Narrative Report. The Veteran also reported that he operated his own landscape and painting business. See January 2011 Vocational Rehabilitation Assessment. The Veteran was denied entitlement to SSA disability benefits in March 2006, on the basis that he had 15 years of education, and at the time could perform medium work, to include entry level jobs such as rotary drier feeder, molder, or order runner. Upon examination of the spine in March 2007, he was noted to be able to perform desk work. During the pendency of this appeal, in a May 2012 Rehabilitation Needs Inventory Report, VA Form 28-1902w, the Veteran reported that skills used in previous positions that he may be able to use in a new job included sitting down and sorting mail. Looking specifically at the spine, the January 2009 VA examiner noted daily incapacitating episodes with radiation of pain during an acute exacerbation of the Veteran's low back strain. However, the VA examiner then noted no incapacitating episodes or radiation of pain. Forward flexion was to 40 degrees, and there was no additional functional impairment due to pain, weakness, incoordination or flare-ups. The VA examiner noted there was no effect on the Veteran's occupational activities. A February 2015 VA examiner noted the Veteran's reports of occasional pain from flare-ups. Range of motion was between 30 and 50 degrees forward flexion, and the VA examiner noted that range of motion itself did not contribute to a functional loss. The VA examiner noted no additional increased pain, weakness, fatigability, or incoordination which could significantly limit functional ability during flare-ups, or when the joint was used over a period of time. The VA examiner opined that the Veteran's low back disability did not impact the Veteran's ability to work. In the July 2015 Board hearing, the Veteran testified that he had difficulty straightening up his spine, could not walk more than a very short distance without using a walker, and experienced severe pain. He also reported that he experienced incapacitating episodes of symptoms, for periods of two days at a time. The December 2015 VA examiner noted the Veteran's back pain, worse with walking and standing. VA treatment records generally also note back pain, worse with walking and standing. The VA examiner noted disturbance of locomotion, interference with sitting, and interference with standing. However, the VA examiner also found no incapacitating episodes due to low back disability. Upon examination, the Veteran was able to forward flex to 90 degrees, with no additional loss of function after repetitive use. The Veteran reported no flare-ups. The Veteran also reported no functional impairment of the low back. The VA examiner opined that the Veteran's low back disability was moderate. The VA examiner opined that the Veteran could not perform physical work, but did not opine that the Veteran could not engage in sedentary work due to his low back disability. The Board in no way calls into question that the Veteran's overall ability to work is impaired by his multiple disabilities. Indeed, the Board observes that the Veteran has a several other disabilities that impact his ability to work that are not service connected, such as diabetes, peripheral neuropathy, asthma, chronic obstructive pulmonary disease, depression, obstructive sleep apnea, eye/vision disorders, kidney disease, and a history of substance abuse. In a November 2011 VA treatment record, the Veteran reported that his back, eye, and other medical problems in general caused his disability. An August 2011 VA treatment record noted that the Veteran's psychiatric disorders prevent him from handling the stress of a work environment. The December 2015 VA examiner noted that the Veteran experienced a voiding dysfunction due to his diabetes which would impact his ability to work in that he would have to work near a bathroom. The December 2015 VA examiner also noted that the Veteran's diabetic peripheral neuropathy impacts the Veteran's ability to work, limiting physical work. The December 2015 VA examiner explained that the Veteran's urinary frequency and peripheral neuropathy were not related to his service-connected low back disability. While the Board is sympathetic to the Veteran's overall medical condition, in considering whether TDIU is warranted, the Board considers only those functional limitations caused by the Veteran's service-connected low back disability. Although the Veteran asserts his back disability alone in and of itself renders him unemployable, a review of the Veteran's medical history and reported effects of all his disabilities, fails to demonstrate that such is the case. Moreover, the Veteran has indicated that he could work sorting mail while sitting down, and the medical evidence of record does not rule out sedentary work. He has three years of education beyond high school, and has indicated he operated his own business for a time. Considering this background, and looking exclusively at the impairment shown due to his back disability, the Board does not find that the Veteran's back renders him unable to secure or follow a substantially gainful occupation. Accordingly, the criteria are not met for referral of the Veteran's TDIU claim for extraschedular consideration. Entitlement to Special Monthly Compensation The Veteran also seeks entitlement to SMC based on the regular need for the aid and attendance of another person. SMC is payable at the (l) rate if a Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114 (l); 38 C.F.R. § 3.350 (b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant 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 claimant 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 claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph, "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed bed rest for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The 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 the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. The Veteran submitted November 2010 statements from others. One statement indicated that the Veteran was always losing things, could not cook, could not clean or bath himself, had to ride public transportation, and needed help with grocery shopping, laundry, and personal hygiene. The statement indicated that eye and sleep apnea disabilities caused these limitations in his activities. Another statement, from the Veteran's home care worker, reported that the Veteran needed help with dressing himself and could not cook or clean. She noted the Veteran's problems with vision, sleep apnea, and urinary frequency. During the July 2015 Board hearing, the Veteran testified that a home care worker helps him with getting out of bed and getting ready when needed, and with bathing, as the Veteran reported that he cannot bend over to wash all areas. He also reported that the health care worker helps with cooking as the Veteran cannot stand for long periods of time. The Veteran testified that he is able to use the bathroom by himself. He testified that he cannot bend to put his shoes on due to his back limitations. A December 2015 statement from the Veteran's home aide indicates problems with blood clots, breathing, eyesight, diabetes, prostate, kidney, urinary frequency, and general pain. She indicates the Veteran needs help getting in and out of the shower and shaving due to eyesight problems. The December 2015 VA examiner reviewed the evidence, the Veteran's claims file, and examined the Veteran. The VA examiner opined that the Veteran's urinary frequency was not due to his back disability but rather to prostate hypertrophy. In addition, the VA examiner was asked to review conflicting evidence regarding the Veteran's limitations in activities of daily living. The VA examiner noted that the Veteran's wife lives with him. The VA examiner then opined that the Veteran needs assistance to put on his socks and tie his shoes, and to wash his back and feet. The VA examiner noted that the Veteran can use the bathroom without assistance, does not have any orthopedic or prosthetic appliances, and does not have any physical or mental incapacity which requires care or protection from hazards or dangers of daily environment. The Board notes that the records show that a home aide is provided to the Veteran for 2.5 hours, four days a week. See, e.g., August 2015 VA Treatment Record. After a complete review of the record in conjunction with the applicable laws and regulations, the Board finds the claim must be denied. The Board notes that although the Veteran has vision problems, he is not blind in both eyes, nor is he service-connected for an eye condition. He also is not permanently bedridden due to his back disability, nor does he so contend. The record also does not indicate that the Veteran's service-connected low back disability alone causes him to require regular aid and attendance from another. Although the Veteran's back disability does make it difficult to wash certain areas while bathing, and to put on his socks and shoes without help, his back does not prevent him from eating or using the bathroom by himself. He does not have a frequent need of adjustment of any special prosthetic or orthopedic appliances. He also does not have any physical or mental incapacity due to his low back disability which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Although the Veteran has submitted statements indicating problems with losing things or bumping into people or being unable to shave due to vision problems, the Veteran has not indicated that these are due to his back disability and other evidence does not support such a connection. Considering the particular functions the Veteran is unable to perform (certain washing and certain dressing aspects) with the Veteran's condition as a whole, the Board finds that the Veteran is not so helpless as to need regular aid and attendance due exclusively to his service-connected back disability. Thus, the criteria for SMC aid and attendance have not been met. The Board notes that the Veteran was granted entitlement to Special Monthly Pension (SMP) due to need for aid and attendance. However, SMP and SMC are different benefits with different requirements. SMP is awarded regardless of whether the disabilities causing the need for aid and attendance are service connected. In other words, for SMP, all of the Veteran's disabilities, whether service-connected or not, are considered in determining whether the Veteran's disabilities required a need for aid and attendance of another. SMC is awarded only on the basis of impairment due to service-connected disabilities. Here, the Veteran is only service connected for a low back disability, and the evidence does not show that the limitations from such disability alone cause the Veteran to be so helpless as to need regular aid and attendance. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53. ORDER Entitlement to an increased rating for service-connected back disability on an extraschedular basis is denied. Entitlement to TDIU is denied. Entitlement to SMC for aid and attendance is denied. _________________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs