Citation Nr: 18142970 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-25 090 DATE: October 17, 2018 ORDER Entitlement to a total disability rating for compensation based on individual unemployment (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to SMC based on the need for aid and attendance pursuant to 38 U.S.C. § 1114 (l) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) payable at the housebound rate under 38 U.S.C. § 1114(s) is dismissed. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss, currently noncompensable, is remanded. FINDINGS OF FACT 1. The Veteran’s service connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. 2. The evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment due to his service-connected disabilities. 3. As SMC based on the need for aid and attendance is being awarded, the issue of entitlement to SMC pursuant to 38 U.S.C. § 1114 (s) is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for SMC based on the need for aid and attendance are met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). 3. Entitlement to SMC under 38 U.S.C. § 1114 (s) is moot. 38 U.S.C. §§ 1114(s), 5101, 5103, 5103A, 5107, 5121; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 1971 to June 1980. 1. Entitlement to a TDIU TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper or lower extremities, including the bilateral factor, will be considered as one disability. See 38 C.F.R. § 4.16 (a)(1). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining the severity of impairment, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.1. The Veteran filed his formal TDIU application (VA Form 21-8940) in June 2014 asserting his service-connected disabilities, specifically his right knee disability, are preventing him from securing substantially gainful employment. Here, the Veteran is service connected for right total knee arthroplasty with a rating of 60 percent, right medical meniscus post-operative residuals (10 percent), right knee degenerative changes (10 percent), tinnitus (10 percent) and hearing loss (noncompensable). VA Fast Letter 13-13 (June 17, 2013) interpreted this language as meaning that, in cases where a Veteran will have one disability ratable at 60 percent with an additional disability rated at 0 or 10 percent, and the combined rating will still equal 60 percent, VA should consider the schedular requirements to be met. Thus, the reference in 4.16(a) to two or more disabilities should be interpreted as applying to cases where no single disability is sufficient to meet the 60 percent criterion. All Fast letters have been rescinded and summaries incorporated into VA’s Adjudication Manual. While the Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), this interpretation of the regulation is persuasive and consistent with the pro-claimant nature of the veterans law system. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (in construing veterans’ law, “interpretive doubt is to be resolved in the veteran’s favor”). The Board will therefore adopt this reasoning. Because the Veteran is rated at 60 percent for his right total knee arthroplasty, he satisfies the percentage criteria for schedular TDIU eligibility under 38 C.F.R. § 4.16 (a)(1). In his June 2014 formal TDIU application, the Veteran indicated that following service he was employed as a truck driver and had a high school education. The Veteran noted in his June 2015 notice of disagreement (NOD) that he also worked as a maintenance worker, which entailed climbing ladders, standing on his feet for long periods of time, bending, crouching and stooping. A November 2013 medical note from an orthopedic surgeon described the Veteran as “permanently disabled.” However, because the opinion did not specify what disability or disabilities rendered the Veteran permanently disabled, nor did the surgeon differentiate between service-connected and non-service-connected disabilities, so the opinion is afforded little probative weight. An April 2014 VA examination showed the Veteran to experience flare-ups when he stands or sits for too long even when using assistive devices due to his bilateral knee surgeries. His functional loss was described as less movement than normal, excess in fatigability, incoordination, swelling, and interference with sitting, standing and weight-bearing. The Board acknowledges that only the Veteran’s right knee is service-connected. To this end, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet App. 181 (1998) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Lay statements from family members in May 2014 describe the Veteran’s difficulty in getting around, such as not being able to navigate a grocery or department store without the use of a motorized cart, the constant use of assistive devices such as a wheelchair, walker or cane, and the help he requires in putting on his socks and shoes. Lastly, in his June 2015 NOD, the Veteran described how he was confined to his scooter because of pain and inability to put weight on his right knee. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). In considering the question of the Veteran’s capability of securing and following substantially gainful employment, the evidence tends to indicate that he would have significant difficulty with standing, sitting, mobility and hearing when compared to his employment history and education level. Even if the Veteran could perform the labor associated with a sedentary job, his continued flare-ups when sitting would likely preclude securing and following substantially gainful employment. The evidence is thus at least evenly balanced as to whether the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to SMC based on the need of aid and attendance under U.S.C. § 1114(l) SMC under 38 U.S.C. § 1114 (l) and 38 C.F.R. § 3.350 (b) is payable as the result of service-connected disability if 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 (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. The following will be accorded consideration in determining the need for regular aid and attendance of another person: inability of a claimant to dress or undress him or herself, or to keep him or herself 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 a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). The Board notes that evidence of record does not reveal anatomical loss or loss of use of both feet, or of one hand and one foot; or blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); or that the Veteran being permanently bedridden. See 38 U.S.C. § 1114 (l), 38 C.F.R. § 3.350 (b). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her 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. 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 or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352 (a). The Veteran is in receipt of service connection for right total knee arthroplasty with a rating of 60 percent, right medical meniscus post-operative residuals (10 percent), right knee degenerative changes (10 percent), tinnitus (10 percent) and hearing loss (noncompensable). He has also been granted a TDIU in this decision. Although VA’s Adjudication Manual indicates that a single disability evaluated as 100 percent disabling under a schedular evaluation is generally a prerequisite for entitlement to aid and attendance, because any lesser disability would be incompatible with the requirements of 38 C.F.R. § 3.352(a), as noted the Manual is not binding on the Board and there is nothing in the statute or regulation requiring such a rating for consideration of SMC based on aid and attendance. DAV v. Sec’y of Veterans Affairs, 859 at 1077 (“The M21-1 Manual is binding on neither the agency nor tribunals”). In May 2014 lay statements, family members noted how the Veteran could not get around places with the family, such as Walmart or the grocery store, without using the motorized cart. He also can no longer attend daily life events such as shopping, farmers markets or his grandson’s youth games. In his June 2015 notice of disagreement (NOD), the Veteran stated he was confined to his scooter because of his pain and inability to put weight on his right knee. Other medical and lay evidence of record note that he would have trouble standing for longer than five minutes, even with an assistive device, and has trouble putting socks and shoes on his feet. The Board finds that the evidence demonstrates that the Veteran meets the criteria for SMC based on the need for aid and attendance because of his lack of mobility and pain after five minutes of standing or sitting that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. See Turco, 9 Vet. App. 224. Simply stated, it does not appear the Veteran would be able to take care of himself without the regular assistance of another for many activities of daily living. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to this benefit is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to SMC under 38 U.S.C. § 1114 (s) Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate if a 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. § 1114 (s). As indicated above, the Veteran is in receipt of SMC based on the need for aid and attendance under 38 U.S.C. §1114 (l). Therefore, the question of entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is moot as SMC at the aid and attendance rate is greater than SMC at the housebound rate. In consideration thereof, the Board finds that the issue of entitlement to SMC at the housebound rate set forth in 38 U.S.C. § 1114 (s) must be dismissed as moot. REASONS FOR REMAND After review of the evidence of record, the Board finds that a remand is necessary for further development before the remaining claim on appeal can be decided. The Veteran was granted service connection for bilateral hearing loss in May 2013 and given a noncompensable rating effective September 26, 2011. He underwent a June 2014 VA examination before a March 2015 rating decision continued his noncompensable rating. During the June 2014 VA examination, however, the VA examiner noted that the responses the Veteran provided for the Maryland CNC word list were not consistent with the pure tone thresholds or the degree of hearing loss, thus rendering the examination inadequate. In a May 2018 appellate brief submitted by the Veteran’s representative, it was noted that the Veteran was now using hearing aids in order to hear, evidence of worsening of his hearing loss. In light of the evidence indicating worsening symptoms, combined with the fact that the most recent VA examination provided to the Veteran was inadequate and the time that has passed since his most recent adequate VA examination in November 2012, a remand is warranted for a new VA examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to evaluate the severity of his service-connected bilateral hearing loss in accordance with the current disability benefits questionnaire. The record must be made available to, and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies and tests should be conducted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel