Citation Nr: 18157443 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 12-30 187 DATE: December 13, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. Entitlement to special monthly compensation based on the need for aid and attendance is granted. FINDINGS OF FACT 1. The evidence of record reflects that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 2. With resolution of doubt in favor of the Veteran, the evidence demonstrates that the Veteran is in need of regular aid and attendance of another person as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In May 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In this decision, the Board grants entitlement to a TDIU. The Agency of Original Jurisdiction (AOJ) will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran was last able to secure or follow a substantially gainful occupation. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). In September 2017, the Board determined that the issue of entitlement to a TDIU and entitlement to an SMC were not raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed the Board’s decision that the issues of entitlement to a TDIU and entitlement to an SMC were not raised by the record to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a May 2018 Joint Motion for Remand (JMR), vacated the September 2017 Board decision and remanded the issues to the Board for readjudication. The Court determined that the issues of entitlement to a TDIU and entitlement to an SMC were part of the Veteran’s claim for entitlement to an increased rating for his service-connected right knee condition. As such, the March 2009 rating decision is the rating decision on appeal. In a November 2018 correspondence, the Veteran’s representative requested that the Board grant entitlement to a TDIU prior to July 14, 2015, the date the Veteran was granted a 100 percent total rating for his service-connected disabilities. However, on further review, the Board notes that the grant of a TDIU is not the same as a schedular 100 percent disability rating, and that the award of a TDIU in addition to the award of a schedular 100 percent rating may result in the payment of additional benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Therefore, the Board has expanded the scope of the issue of entitlement to a TDIU to include the entire period on appeal, as indicated above. 1. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU due to his service-connected disabilities. Specifically, the Veteran’s representative stated that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected right knee disability. See Third Party Correspondence, received November 2018. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran was in receipt of temporary total disability ratings for convalescence following surgery from December 29, 2008 through January 31, 2009, from September 24, 2010, through October 31, 2011, and from July 14, 2015 through September 30, 2015. Aside from those periods, during the rating period on appeal, the Veteran has been service connected for status-post total right knee replacement, rated as 60 percent disabling from February 1, 2010; left hip s/p total arthroplasty, rated as 70 percent disabling from October 1, 2015; right shoulder rotator cuff tendonitis, rated as 20 percent disabling from July 14, 2015; left shoulder rotator cuff tendonitis, rated as 20 percent disabling from July 14, 2015; carpal tunnel syndrome of the right wrist, rated as 10 percent disabling from August 6, 2012; carpal tunnel syndrome of the left wrist, rated as 10 percent disabling from August 6, 2012; right hip osteoarthritis, rated as 10 percent disabling from July 14, 2015; right hip osteoarthritis limited extension, rated as noncompensable from July 14, 2015; right hip osteoarthritis limited flexion, rated as noncompensable from July 14, 2015; and, scars, rated as noncompensable from July 14, 2015. The Veteran had a combined disability rating of 60 percent from February 1, 2010 through August 5, 2012, and 70 percent disabling from August 6, 2012, through July 13, 2015. As stated above, from July 14, 2015, the Veteran has had a combined disability rating of 100 percent. The Veteran met the percentage requirements for a TDIU throughout the rating period on appeal. See 38 C.F.R. § 4.16 (a). In November 2018, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, completed in August 2018. On the form, he indicates that he has a high school diploma with additional education or training as a fork lift operator. He indicated that he worked as a fork lift operator from 1995 to 2005, as a truck driver from 2005 to January 2007, as a laborer from February 2007 to May 2007, and as a press operator from May 2007 to November 2007. He indicated that he last worked in November 2007, and that he is unable to work due to his service-connected status post total right knee replacement and service-connected bilateral carpal tunnel syndrome. In a VA Form 21-8940, received in March 2011, the Veteran stated that he is unable to secure or follow a substantially gainful occupation due to his service-connected total knee replacement and further stated that due to his right knee condition he repeatedly falls, which caused him to tear both shoulders and severely damage his back. The Veteran was provided a VA examination in October 2011. The VA examiner opined that the Veteran’s service-connected right knee disability impacts his ability to work since he is unable to perform activities that require standing or walking. The VA examiner further opined that the Veteran’s right knee disability would not prevent him from performing sedentary work. The Veteran was provided a VA shoulder and arm conditions examination in August 2014. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner opined that the Veteran’s service-connected shoulder disabilities would most likely cause difficulty with performing tasks that involve lifting, or motion of the shoulders. The VA examiner further opined that the Veteran would have significant difficulty with overhead tasks. The Veteran was provided a VA peripheral nerves examination in February 2015. The VA examiner opined that the Veteran’s bilateral carpal tunnel syndrome would impact his ability to work. As rationale, the VA examiner stated that the Veteran has chronic constant symptoms of sensory loss that is aggravated by using a cane, writing or driving. The Veteran was provided a VA examination in November 2015. The VA examiner opined that the Veteran’s service-connected disabilities would impact his ability to perform occupational tasks. As rationale, the VA examiner stated that there are functional impairments to sedentary and physical activities of employment due to the Veteran’s service-connected bilateral carpal tunnel syndrome, right knee disability, bilateral hip disability and bilateral shoulder disability due to markedly reduced mobility, pain and instability with prolonged standing and walking. The VA examiner stated that due to his service-connected bilateral carpal tunnel syndrome the Veteran gets pain, numbness and tingling with repetitive movements of the arms and hands. In October 2018, the Veteran provided VA a TDIU vocational assessment report. The Vocational Rehabilitation Consultant reviewed the record and interviewed the Veteran. The Veteran stated that he experiences constant soreness, swelling, weakness and mobility issues. The Veteran further stated that he cannot put any weight on his right knee or it will give out. He further stated that he falls approximately 15 or 20 times a year due to his right knee. The Veteran reported that his service-connected right knee disability causes pain with minimal walking and that he needs to elevate his feet above the waist level due to increased pain and swelling. He reported that he has flare-ups once a week that create an inability to perform any ambulatory activity and he is only capable of taking medication and resting with his right leg elevated. The Veteran stated that he experiences difficulty with concentration as a result of his right knee pain and that simple tasks such as reading and shopping take longer to accomplish due to his inability to remain focused. The Veteran reported he is unable to sit for more than 30 minutes, stand for more than 30 minutes, walk for more than 5 minutes, stoop/squat, climb stairs, maintain balance, and get on and off the toilet seat. He further reported that he is unable to drive. The Veteran reported that he last worked as a press operator in November 2007 and was in constant agony because he was required to stand most of the day. He reported that he occasionally missed work or left early due to his right knee pain. The consultant opined that it is at least as likely as not that the Veteran has been unable to secure and maintain substantially gainful employment since at least 2007 due to his service-connected right knee condition, symptoms, manifestations, restrictions, and limitations. As rationale, the consultant stated that the medical evidence and the Veteran’s statements reflect right knee limitations, interruption in concentration and fatigue due to knee pain that the Veteran is unable to secure and follow substantially gainful employment, to include sedentary unskilled employment. The consultant further stated that employers will not allow an employee, such as the Veteran, to take unscheduled breaks to rest and rub his knee as he would be required to do. In view of the above, the Board finds that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The evidence of record indicates that the Veteran’s service-connected right knee disability prevents him from performing exertional activities such as standing and walking for long periods, kneeling, crouching, and bending. As such, the Veteran generally would be unable to perform physical work, to include the fork lift driving for which he has received special training. His capacity to perform even sedentary work is also eroded by his right knee disability and other service-connected disabilities. Specifically, his service-connected right knee disability requires that the Veteran stand every 30 minutes, raise his leg above his waist and affects his ability to concentrate. His service-connected bilateral carpal tunnel syndrome causes chronic symptoms, such as sensory loss, with repeated writing, which would affect the Veteran’s ability to perform sedentary occupations. Moreover, due to his right knee disability, the Veteran would miss significant periods of work or be required to leave work early. In essence, the Veteran would need to work at his own pace and be excused for frequent and unscheduled absences. Such accommodations are not generally found in the competitive workforce. As such, in view of the Veteran’s service-connected disabilities, education, and work history, the Board finds that he would require a sheltered environment that would accommodate his substantial limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16 (a). The Board concludes that the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the AOJ will set an effective date for the award of a TDIU after determining the date on which the Veteran was last able to secure or follow a substantially gainful occupation. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). 2. Entitlement to Special Monthly Compensation (SMC) The Veteran asserts that he is in need of regular aid and attendance of others due to his service-connected disabilities. Specifically, the Veteran stated that he needs aid and attendance preparing meals, eating, bathing, and dressing. See Third Party Correspondence, received November 2018. SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. To receive a special monthly compensation based on the need for aid and attendance, the claimant must be a patient in a nursing home on account of mental or physical incapacity; or be blind or so nearly blind as to have corrected visual acuity in both eyes of 5/200 or less or concentric contraction of the visual field to 5 degrees or less; or have a factual need for regular aid and attendance of another person. 38 U.S.C. §§ 1114 (l), 1502, 1521; 38 C.F.R. §§ 3.350 (b) (3), 3.351(b). Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress oneself, or to keep oneself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed oneself through loss of coordination of upper extremities or through extreme weakness; inability to attend to 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 her 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 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). It is logical to infer, however, 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). The Veteran is currently service-connected for eleven disabilities; most important for this determination are his service-connected right knee disability, service-connected bilateral shoulder disability, and service-connected bilateral carpal tunnel syndrome. In July 2011, the Veteran was provided a VA examination for housebound status or permanent need for regular aid and attendance. The VA examiner noted the Veteran right shoulder rotator cuff repair and right knee disability. The VA examiner noted that the Veteran is not able to walk over 50 feet and is unable to lift. The VA examiner further noted that the Veteran is not able to prepare his own meals. Regarding bathing and tending to other hygiene needs, the VA examiner noted that the Veteran needs assistance getting in and out of the shower, cannot wash his hair or back, cannot put on deodorant and needs help drying. The VA examiner further noted that the Veteran’s wife handles all medications. Additionally, the Veteran is transported to VA on average of two days per week for appointments. The VA examiner opined that without assistance the Veteran would need placement in a nursing home. A November 2018 affidavit from the Veteran’s spouse, reflects that due to the Veteran’s service-connected shoulder disabilities the Veteran is not able to dress himself. Additionally, due to his service-connected carpal tunnel syndrome he is unable to tie laces or button anything. The Veteran’s spouse further stated that the Veteran is not able to climb in an out of the bathtub and that he requires a shower chair because he cannot stand for long periods of time. She further stated that the Veteran needs assistance washing his hair. The Veteran’s spouse stated that the Veteran is unable to cook or feed himself and that she needs to help him cut his food and to help him eat. She further stated that the Veteran is unable to write or drive. Thus, she attends all doctor’s appointments with the Veteran. The Veteran’s spouse further stated that she is afraid to leave her husband alone for more than a few minutes since he may injure himself in a fall. The record reflects that the Veteran is not in a nursing home and is not legally blind. Therefore, the Veteran is only eligible for aid and attendance benefits if the evidence shows that he has a factual need for the regular aid and attendance of another person. Such need is shown. Factors to consider in determining whether regular aid and attendance is needed include an inability to dress or undress oneself, inability to keep oneself ordinarily clean and presentable, inability to feed oneself, an inability to attend to the wants of nature, and an incapacity which requires care or assistance to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). The evidence shows that the Veteran meets these criteria. With regard to ability to dress himself, the Veteran’s spouse stated that the Veteran is not able to raise his arms above his head to put on a shirt and is unable to tie laces or button anything. Additionally, the July 2011 VA examiner noted that the Veteran cannot shower without assistance; he needs help washing his hair and back, with putting on deodorant and climbing in and out of the shower. The Veteran’s spouse stated that she is always near the Veteran when he bathes because she is fearful he will fall and hurt himself. The evidence also reflects that the Veteran is unable to prepare his own food due to his service-connected bilateral shoulder disability and bilateral carpal tunnel syndrome since he is not able to lift more than five pounds and cannot lift his arms above chest level. The July 2011 VA examiner and the Veteran’s wife both stated that the Veteran needs assistance with cutting up food and assistance in feeding himself. The July 2011 VA examiner noted that the Veteran would need to be placed in assisted living if he did not have his wife and his spouse stated that she is afraid to leave the Veteran in the event that he falls and injures himself. The evidence also shows that these problems stem from the Veteran’s service-connected disabilities, most notably his service-connected right knee disability, service-connected bilateral shoulder disability and service-connected bilateral carpal tunnel syndrome. Thus, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran requires the regular aid and attendance of another person due to his service-connected disabilities. Accordingly, resolving any doubt in favor of the Veteran, the Board finds that the Veteran is in need of the regular aid and attendance of another person due to his service-connected disabilities. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, special monthly compensation based on regular need for aid and attendance of another person is warranted.   VA’s Duty to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel