Citation Nr: 21001461 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-58 713A DATE: January 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation based on aid and attendance is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that he is unable to secure and follow substantially gainful occupation by reason of his service-connected disabilities. 2. The Veterans’ service-connected disabilities rendered in him in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to special monthly compensation based on aid and attendance/housebound have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from July 1964 to July 1970. Most recently, in September 2020, the Board remanded this matter for further evidentiary development. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran asserts that he is unable to work due to his service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 a ). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to C&P for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In all cases, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). In the present case, the Veteran is service connected for right upper extremity tremor (40 percent from March 13, 2015), stooped posture (20 percent from March 13, 2015), left upper extremity tremor (20 percent from March 13, 2015), right lower extremity muscle rigidity (20 percent from March 13, 2015), tinnitus (10 percent from October 20, 2008), left upper extremity tremor (10 percent from March 13, 20150, bilateral hearing loss (0 percent from October 20, 2008), urinary incontinence (0 percent from March 13, 2015), speech changes with slurring words (0 percent from March 13, 2015), sleep disturbance (0 percent from March 13, 2015). Therefore, the Veteran’s combined total rating is 80 percent from March 13, 2015. Based on these combined totals, the Veteran meets the schedular criteria for a TDIU from March 13, 2015 onwards. After a review of the competent evidence of record, the Board determines that TDIU is warranted. The Veteran underwent a VA examination in December 2015 for Parkinson’s Disease. The examiner noted that the Veteran’s stooped posture was mild, exhibited moderate tremors in his right upper extremity, exhibited mild tremors in his left upper extremity, and moderate rigidity in his right lower extremity. During the examination, the examiner further noted that the Veteran claimed that his right leg has difficulty initiating movements. In addition, he noted slowness in his movements, slow speech with occasional slurring, decrease in handwriting size, have sense of imbalance, but no reported falls. The examiner concluded that the Veteran’s Parkinson’s affects his ability to work in regard to slowness in movements, difficulty writing, and sense of imbalance. In this case, the Board finds that the limitations caused by the Veteran’s Parkinson’s Disease, specifically slowness in movements, difficulty writing, and the sense of imbalance, would make it difficult, if not impossible for the Veteran to secure and maintain substantially gainful employment. Accordingly, entitlement to a TDIU is granted. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to special monthly compensation based on aid and attendance/housebound The Veteran seeks SMC for aid and attendance. Special monthly compensation can be awarded when a Veteran is in need of aid and attendance or when the Veteran has a single service-connected disability rated at 100 percent and is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350 (b)(3), (i). The requirement of being permanently housebound is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350 (i). In this case the Veteran does not have a single service-connected disability rated at 100 percent and cannot be awarded SMC on the basis of housebound status. Id. The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A person will be considered in need of regular aid and attendance if he: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or, (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). 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 rating may be made. The particular personal functions which the veteran was unable to perform should be considered in connection with his former condition as a whole. It is only necessary that the evidence establish that the veteran was so helpless as to need regular aid and attendance, not that there was a constant need for aid and attendance. 38 C.F.R. § 3.352 (a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). 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 or her daily environment. 38 C.F.R. § 3.352 (a). It is not required that all of the disabling conditions noted above 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. 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 claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Aid and attendance can also be awarded if a veteran is bedridden, which means a 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 rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. The Board initially notes that the Veteran does not meet the criteria for special monthly compensation at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. In addition, the evidence of record does not demonstrate that the Veteran is unable to engage in activities outside of his home. Indeed, a June 2018 correspondence shows that the Veteran was able to travel to California to visit his family. Further, the record shows that the Veteran is able to attend VA treatment appointments. Additionally, the Board notes that evidence of record does not show that the Veteran’s service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C § 1114 (l) by showing his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352 (a) set forth above. In this regard, the medical evidence demonstrates that the Veteran requires regular aid and attendance due to his service-connected disabilities. The Veteran’s October 2017 examination for housebound status indicates that the Veteran is unable to prepare meals, unable to feed himself as his hands are extremely tremulous, needs assistance to bath and tend to hygiene, requires medication management, does not have ability to manage finances, and attends VA medical appointments with a caregiver. Further, the physician noted that the Veteran has poor balance and needs stand by assistance to help ambulate. In light of the above, the Board finds that a finding of need for aid and attendance should be granted. The evidence clearly supports a finding that the Veteran’s service-connected disabilities resulted in his need for regular assistance with activities such as toileting, bathing, dressing, cooking, and ambulating. This is precisely the type of factors anticipated by 38 C.F.R. § 3.352 (a), in determining if the Veteran requires regular aid and attendance. As such, the claim is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel