Citation Nr: 21000125 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 06-15 692 DATE: January 4, 2021 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance prior to January 23, 2012 is granted. FINDINGS OF FACT 1. The Veteran was not able to obtain or retain substantially gainful employment due solely to his service-connected Parkinson’s disease. 2. Prior to January 23, 2012, the Veteran needed regular aid and attendance of another person because of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). 2. The criteria for SMC based on the need for regular aid and attendance are met. 38 U.S.C. § 1114(l), 5110 (2018); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to April 1972. He appealed an August 2012 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to SMC based on the need of regular aid and attendance of another person and SMC at the housebound rate. Also, before the Board of Veterans’ Appeals (Board) is entitlement to TDIU. The history of this appeal is long. Most recently, in September 2018, the Board remanded the Veteran’s claims for further development, described in detail below. The claims are now back before the Board. TDIU The Veteran claims he cannot work due to his Parkinson’s disease. See March 2011 VA Form 21-4138. An April 2012 VA examiner noted the Veteran was “removed from work” in 2003 due to his Parkinson’s disease. See April 2012 VA examination report. Although the Veteran has a combined disability rating of 100 percent throughout the appeal period, a 100 percent disability rating does not always render the issue of TDIU moot as VA has a duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Here, TDIU based on an individual disability raises the possibility of entitlement to additional benefits, such as entitlement to SMC. See Bradley v. Peake, 22 Vet. App. 280 (2008). Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, as the Veteran claims, this disability shall be ratable at 60 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to January 23, 2010, the Veteran’s service-connected Parkinson’s disease alone did not meet the schedular requirements for TDIU as his rating was only 50 percent; however, the Veteran met the schedular criteria from January 23, 2010. When the percentage requirements are not met, entitlement to TDIU may be considered but the Board must refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). In September 2018, the Board remand referred this claim to the Director for extra-schedular consideration. In October 2020, the Director provided a negative opinion, finding the Veteran’s Parkinson’s disease did not render him unable to secure or follow a substantially gainful occupation. However, there is no restriction on the Board’s de novo review of an extra-schedular rating once the Director determines that an extra-schedular rating is not warranted. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Based on the evidence of record, the Board disagrees with the Director’s opinion and finds the Veteran’s service-connected Parkinson’s disease alone renders him unable to obtain and maintain employment during the entire appeal period. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran’s occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The record reflects the Veteran served in the Air Force, Navy, and Army, spending most of his service with the military occupational specialty (MOS) of crawl track operator in the Army. See DD Form 4; see also DD Form 214. After service, the Veteran states he completed over three years of college and then worked from 1978 to July 2003 as a field mechanic for gas compression units. See July 2009 VA Form 21-8940; see also July 2003 Social Security Administration (SSA) records. The record reflects the Veteran has the education, training, and skill to pursue a substantial occupation in a field similar to his mechanic occupation or in a similarly skilled labor position. Physically, the Veteran reports his Parkinson’s symptoms prevent him from working. He first noted “tremors in his right thumb with progression to his hand and arm.” See March 2011 VA Form 21-4138. The record reflects the Veteran is right hand dominant. See March 2016 VA examination report. The Veteran reported to regularly carry heavy tools and equipment weighing over 50 pounds. See July 2003 SSA records. He noted that after being diagnosed with Parkinson’s disease, his bosses put him on “smaller machines and limited his hours." Id. In July 2003, an SSA interviewer observed the Veteran’s hands shook throughout the interview and he had to use a “bigger” pen so he could grip it when signing SSA applications. Id. At work, the Veteran stated when he started “a bolt in an engine, [his] hands start shaking so bad that [he] cannot start the bolts in the engine.” See July 2003 SSA records. The record reflects the Veteran had a “significant resting tremor of the right hand, particularly when he gets tired.” See May 2002 Cooper Clinic Neurology treatment records. Although the record suggests the Veteran’s medication curbed his resting hand tremors, he continued to have “intention tremors” and his medication during this time caused “excessive daytime somnolence” and loss of concentration. See October 2009 VA treatment records; February 2012 VA treatment records; April 2012 VA examination report. In February 2010, the Veteran described his Parkinson symptoms as “tremors, bradykinesia, rigidity, slow memory, and verbal response.” See February 2010 VA examination report. He noted “when the attacks occur, he can take care of some household chores, but cannot go to work” and stress causes and exacerbates his attacks. Id. At examination, the Veteran had a “lower extremities Parkinson’s shuffle,” “some difficulty with weight bearing,” and objective factors of bradykinesia and tremor. Id. The February 2010 VA examiner found the Veteran “unable to work due to [his] tremor” at his usual occupation. Id. The Board finds the February 2010 VA examiner’s opinion probative and corroborated by the medical and lay evidence of record noted above. Importantly, the Veteran’s Parkinson’s symptoms progressed in severity during the appeal period, further restricting his physical ability to work. For example, in March 2011 his wife noted the Veteran “required assistance in most all of his activities of daily living (ADLs)” and he ambulated in a “very short shuffle.” See March 2011 VA Form 21-4138. In April 2012, a VA examiner found his Parkinson’s disease symptoms manifested in severe sleep disturbance and urinary incontinence requiring the use of more than 4 absorbent pads a day. See April 2012 VA examination report. These related symptoms further hinder the Veteran’s ability to maintain employment in any occupational field. Related to his specific occupation, the VA examiner found the Veteran had no resting tremor on the day of the examination, but he did have “a left-hand intention tremor,” which the Board finds would prohibit his ability to successfully repair gas compressors. Id. In March 2016, the Veteran’s tremors moved to his lower extremities, but remained “worse on the right side of his body.” See March 2016 VA examination report. The VA examiner found he exhibited moderate right upper extremity tremors with mild tremors at the left upper and bilateral lower extremities. Id. His “gait [had] deteriorated [so] profoundly over the last four years” that he was “confined to a wheelchair” due to a “very unsteady gait.” Id. Finally, the VA examiner noted the Veteran had moderate memory loss and was “unable to make decisions” and “very forgetful.” Id. The medical evidence of record clearly reflects the Veteran could not perform the tasks and responsibilities required of him in his prior profession or a similarly skilled labor occupation. Specifically, he could not adeptly manipulate the tools and parts required to repair and maintain gas compressors while suffering through hand tremors. The record reflects the Veteran experienced intention hand tremors during the entire appeal period, and he suffered from memory loss, severe incontinence, and initially had an unsteady Parkinson’s gait before being confined to a wheelchair and requiring assistance with ADLs. This would certainly prohibit the Veteran’s ability to obtain and maintain any occupation. Accordingly, the Board finds the Veteran’s service-connected Parkinson’s disease rendered him unable to work during the entire appeal period. The severity of his symptoms, combined with his occupational experience, support a conclusion that he was unable to secure and follow substantially gainful employment. Hence, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, and the claim is granted. See 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. SMC The Veteran filed a claim for entitlement to SMC based on the need for aid and attendance or for housebound status in December 2010. See December 2010 VA Form 21-2680. A veteran may either receive SMC based on the need for regular aid and attendance or by reason of being housebound but may not receive both simultaneously; this would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same needs required by his service-connected disabilities. See 38 C.F.R. § 4.14; 38 U.S.C. § 1114. SMC based on the need for regular aid and attendance is the greater monetary award. The AOJ granted entitlement to SMC based on the need for aid and attendance, effective January 23, 2012. See February 2017 rating decision. However, the Veteran contends that he is entitled to SMC based on the need for aid and attendance prior to January 23, 2012. See December 2010 VA Form 21-2680. Specifically, his wife stated “he required assistance in most all of his ADLs (meals, medication, hygiene, finances, etc.),” his “ambulation is very short, shuffle, and stooped,” and he was “basically homebound” due to his Parkinson’s disease. See March 2011 VA Form 21-4138. SMC based on the need for aid and attendance is warranted where a veteran’s service-connected disabilities render him “so helpless as to be in need of regular aid and attendance.” 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. §§ 3.350, 3.352. A veteran is found to be in need of regular aid and attendance based on the consideration given to such factors as: inability of the veteran to dress or undress him or herself, or to keep himself ordinarily clean and presentable; inability of the veteran to feed him or herself 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 the hazards or dangers inherent in his daily environment. Id. The regulation does not require that all of the disabling conditions of 38 C.F.R. § 3.352 be found to exist in order for a favorable rating to be made. Id. The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. Id. Finally, the regulation states that the Veteran needs only regular care, not constant or daily aid and attendance. Id. Here, the Board finds the Veteran meets the criteria for SMC for aid and attendance of another. Prior to January 23, 2012, the Veteran was service-connected for (1) Parkinson’s disease with urinary incontinence, bradykinesia, and tremor; (2) hypertensive heart disease with ischemic heart disease; (3) posttraumatic stress disorder (PTSD) with major depressive disorder; (4) type II diabetes mellitus with bilateral lower extremity peripheral vascular disease, bilateral cataracts, hypertension, bilateral peripheral neuropathy; and, (5) bilateral hearing loss, among others. See December 2019 rating decision codesheet. A July 2020 VA clinician noted the Veteran was “home-bound and only goes out for necessary doctor’s appointments” as he “must have assistance with dressing and undressing, bathing, grooming, and toileting.” See July 2020 VA medical opinion. He noted the Veteran’s memory “causes him to forget aspects of his financial affairs such as bill deadlines” and he was incapable of managing his financial affairs. Id. The July 2020 VA clinician concluded that prior to January 23, 2012, the Veteran’s “level of debility and mobility, especially in regards to his Parkinson’s was at a level that would have required the Veteran to have help with his activities of daily living, such as dressing and undressing, bathing, grooming, and toileting.” Id. The Board agrees with the VA examiner’s assessment; the medical and lay evidence of record reflects the Veteran required the regular personal assistance of his wife to complete ADLs. For example, the record reflects the Veteran was wheelchair bound prior to January 23, 2012, uses a walker at home, and attended VA appointments with the assistance of a family member. See, e.g., August 2011 VA treatment records; September 2011 VA treatment records (need for a wheelchair in February 2010); October 2011 VA treatment records; February 2012 VA treatment records (“uses a walker in the house and a wheelchair for distance”). The Veteran was noted to only leave his home for medical appointments. See December 2010 VA Form 21-2680. In August 2011, the Veteran stated he could not walk “more than 30 yards before having to rest” due, in part, to shortness of breath and his heart condition. Id. The record reflects the Veteran’s wife tended to the Veteran’s ADLs and medical necessities. See, e.g., December 2010 VA Form 21-2680 (“unable to bath self” “wife and supportive care allow him to be home” “incontinent”); August 2011 (“wife…requests replacement [of] extra-large wheelchair, hospital bed and mattress.”). The record reflects the Veteran had “severe urinary incontinence” and was unable “to perform hygiene measures without help” requiring a change of “diapers/clothes at least 5-6 times a day.” See February 2011 VA Form 21-4138. The Veteran’s wife further reported he “must take diabetic medications twice a day and monitor his blood sugars” which he could not do independently to due to his Parkinson’s symptoms. Id. In February 2011, his wife further noted the Veteran “falls asleep and forgets” what he was doing; therefore, it was unsafe for him to prepare meals, be alone, and perform other ADLs. Id. Finally, the Veteran’s wife noted he easily choked when eating and “had four dilatations to his throat in the last two years.” Id. Indeed, the extent of the Veteran’s Parkinson’s disease symptoms, noted above, required regular aid and attendance by the Veteran’s wife, who noted she was a nurse and “quit work to stay with [the Veteran]” and care for him daily in 2010. Id. As such, the Board finds these statements by the wife credible and probative regarding the Veteran’s need for aid and attendance prior to January 23, 2012. Overall, the Board finds the Veteran was unable to attend medical appointments without assistance, unable to attend to the wants of nature, keep himself ordinarily clean and presentable, and maintain his complex medical requirements without assistance. Given the above, the Board finds that entitlement to SMC by reason of the need for regular aid and attendance from another person prior to January 23, 2012 is warranted. The evidence of record demonstrates that the Veteran needed assistance with ADLs including preparing meals, ambulation, bathing, dressing, and tending to other hygiene needs due to his service-connected disabilities. He was also unable to protect himself from hazards or dangers incident to his daily environment as he had problems with ambulation, choking, and maintaining his medical care. Thus, he meets the requirements for aid and attendance from another. See Turco v. Brown, 9 Vet. App. 222 (1996). (Continued on the next page)   Accordingly, resolving all doubt in his favor, the criteria for SMC based on the need for aid and attendance prior to January 23, 2012 have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). As this represents a complete grant of the benefit sought on appeal, no discussion of SMC based on being housebound (which is a lesser benefit) is necessary. See 38 U.S.C. § 1114. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.