Citation Nr: 21002942 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 10-36 437 DATE: January 19, 2021 ORDER Entitlement to an evaluation in excess 20 percent for right shoulder strain with degenerative joint disease (DJD) is denied. Entitlement to a separate 20 percent evaluation for right shoulder dislocation (acromioclavicular separation or sternoclavicular dislocation) is granted. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities for the time period from June 1, 2019, is granted. Entitlement to special monthly compensation (SMC) based on aid and attendance of another person is granted. REMANDED Entitlement to a TDIU for the time period prior to June 1, 2019, is remanded. FINDINGS OF FACT 1. Right shoulder strain with DJD is manifested by pain, limitation of motion to no worse than shoulder level, and right shoulder dislocation. 2. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities for the time period from June 1, 2019. 3. Resolving all reasonable doubt in his favor, the Veteran is so helpless as to be in need of regular aid and attendance of another person due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess 20 percent for right shoulder strain with DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201, 5202 (2020). 2. The criteria for entitlement to a separate 20 percent evaluation for right shoulder dislocation (acromioclavicular separation or sternoclavicular dislocation) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5203 (2020). 3. From June 1, 2019, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.16, 4.25 (2020). 4. The criteria for entitlement to SMC based on aid and attendance of another person have been met. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. §§ 3.102, 3.350(b), 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to April 1972, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions from the agency of original jurisdiction (AOJ). In August 2011, the Veteran testified before an Acting Veterans Law Judge (AVLJ) at a Board videoconference hearing. A transcript of the hearing is included in the electronic claims file. In November 2020, the Board notified the Veteran that the AVLJ who conducted his August 2011 Board videoconference hearing was no longer employed by the Board and advised him of the opportunity to provide testimony at another hearing before the Board. As the Veteran did not respond to the letter, the Board can now proceed with adjudication. The Veteran indicated in an April 2016 application for entitlement to a TDIU that he stopped working in October 2012 due to his knees and right shoulder. Thus, the claim for entitlement to a TDIU is part and parcel of the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). A pending right knee increased rating claim was filed in March 2008 and his current appeal for an increased rating for his right shoulder disability was filed in August 2016. In a September 2016 rating decision, the AOJ denied entitlement to a rating in excess of 20 percent for the Veteran’s right shoulder strain and DJD. The Veteran has appealed his 20 percent rating for the right shoulder. In a November 2018 decision, the Board denied entitlement to a right shoulder rating in excess of 20 percent and remanded the claims for entitlement to a TDIU and entitlement for an extension of the right shoulder temporary total rating. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Order, the Court partially vacated the Board’s November 2018 decision and remanded the matter of entitlement to a right shoulder rating in excess of 20 percent for readjudication in compliance with the July 2019 Joint Motion for Partial Remand (Joint Motion). In January 2020, the Board remanded all three matters on the title page for additional development. Parenthetically, the Board notes that a SSOC has still not been issued readjudicating the matter of entitlement to an extension of a temporary total rating based upon convalescence for the Veteran’s service-connected right shoulder disability (in effect from November 1, 2011, to May 1, 2012) since the November 2018 Board Remand of that temporary total rating claim. An SSOC has also still not been issued readjudicating the matters of entitlement to a rating in excess of 10 percent prior to June 6, 2016, for right knee strain with DJD status post arthroscopic surgery and entitlement to a rating in excess of 20 percent from June 6, 2016, to December 5, 2016, for right knee arthroplasty since the July 2019 Board Remand of those increased rating claims. 1. Entitlement to an evaluation in excess 20 percent for right shoulder strain with DJD The Veteran has been awarded a 20 percent evaluation for his service-connected right shoulder strain with DJD under Diagnostic Codes 5202-5003. He seeks a higher rating. The hyphenated diagnostic code indicates that other impairment of the humerus under Diagnostic Code 5202 is the service-connected disorder, and degenerative arthritis with limitation of motion of the arm under Diagnostic Code 5003, is the residual condition. 38 C.F.R. § 4.27 (2020). A distinction is made between major/dominant and minor/nondominant musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69 (2020). As evidence of record shows that the Veteran is right hand dominant, his right shoulder is designated as his major/dominant shoulder for the purposes of this decision. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Under Diagnostic Code 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). Under Diagnostic Code 5200, a 30 percent for the major dominant side is warranted for ankylosis of the scapulohumeral articulation, manifested by favorable abduction to 60 degrees, can reach mouth and head. This code also provides that ankylosis of the scapulohumeral articulation, manifested by intermediate between favorable and unfavorable allows for the assignment of a 40 percent rating for the major side. Unfavorable ankylosis, abduction limited to 25 degrees from side, warrants a 50 percent rating on the major side. 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2020). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under Diagnostic Code 5201, limitation of motion of the arm, a 20 percent rating is assigned when there is limitation of motion of the major arm at shoulder level. A 30 percent rating is warranted when there is limitation of motion of the major arm midway between the side and shoulder level. A 40 percent evaluation is warranted when there is limitation of motion of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). Under Diagnostic Code 5202, other impairment of the humerus, a 20 percent evaluation is warranted for impairment of the major extremity caused by malunion resulting in moderate deformity, or for recurrent dislocation of the scapulohumeral joint with infrequent episodes of dislocation at the scapulohumeral joint and guarding of movement at the shoulder level. A 30 percent evaluation is warranted for impairment of the major extremity caused by malunion resulting in marked deformity or for recurrent dislocation of the scapulohumeral joint with frequent episodes of dislocation and guarding of all arm movements. A 50 percent evaluation is assigned where there is fibrous union in the major arm. A 60 percent evaluation is warranted for nonunion or a false flail joint in the major arm. For loss of the humeral head (a flail shoulder), an 80 percent evaluation is warranted in the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2020). Under Diagnostic Code 5203, a 20 percent evaluation is warranted for dislocation of the clavicle or scapula or nonunion of the clavicle or scapula with loose movement for either the major or minor arm. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2020). The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.71. These descriptions indicate that normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction of the shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. To give the Veteran every consideration in connection with the matter on appeal, the Board will also consider all other potentially applicable diagnostic codes under 38 C.F.R. § 4.71a in rating the Veteran’s right shoulder during the appeal period. See, e.g., Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case”), and Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (one diagnostic code may be more appropriate than another based on such factors as the Veteran’s relevant medical history, his current diagnosis, and demonstrated symptomatology). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examinations on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2020). The Court has held that the AOJ must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The Board further recognizes that the Court has determined that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with findings of the opposite undamaged joint. 38 C.F.R. § 4.59 (2020); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 is not limited to arthritis). Finally, the Court held that the final sentence of 38 C.F.R. § 4.59 required that VA examination reports include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Court later explained that case law and VA guidelines anticipate that examiners will offer opinions as to additional functional loss during flare-ups of musculoskeletal disabilities based on estimates derived from information procured from relevant sources, including lay statements of veterans. It was noted that an examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). A June 2016 VA shoulder examination report showed that the Veteran’s right shoulder had flexion from 0 to 170 degrees, abduction from 0 to 100 degrees, external rotation from 0 to 75 degrees, and internal rotation from 0 to 90 degrees. There was pain at the extremes of flexion, abduction, external rotation, and at 50 degrees of posterior flexion. The Veteran was noted to have acromioclavicular (AC) DJD that did not affect range of motion at the shoulder (glenohumeral) joint. There was no atrophy, laxity, or ankylosis as well as no loss of humerus head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity. The Veteran reported that he had flare-ups, during which he will modify his activities and work at a slower pace. He complained of pain, weakness, and loss of motion during flare-ups, but denied incoordination. It was noted that he had some difficulty with overhead work due to loss of abduction and had crepitus as well as a mild tender AC joint and anterior shoulder. There was pain on examination, but it did not result in functional loss. There was no pain with weight bearing and no reduction in muscle strength. The Veteran was able to perform repetitive use testing with no additional functional loss or loss of range of motion. There was functional loss due to pain, fatigue, weakness, and lack of endurance, but loss in terms of range of motion could not be estimated because the Veteran was not specific enough in his responses. The examiner found that functional ability during flare-ups or following repeated use over time was significantly limited, but this limitation could not be estimated in terms of loss of motion because it would require resorting to speculation, as the Veteran was not acutely flared and was not specific enough in his history. The examiner noted there was pain on extremes of motion, and at 50 degrees of posterior extension and posterior flexion. There was functional impact on the Veteran’s ability to perform occupational tasks to the extent that his restrictions were activity-related (overhead activities). He could lift moderate weight if lifting waist high. He was noted to have some problems with activities requiring internal rotation of the shoulder (posterior flexion) but could perform sedentary type work with restricted overhead use. The examiner noted that the Veteran had good strength and range of motion in his shoulder and that problems with his shoulder mainly arose when working overhead. VA treatment records showed continued complaints of right shoulder pain. In August 2016, he was noted to have a normal range of motion in his shoulders. Findings of full strength in the upper extremities were listed in July 2016 and July 2018. In July 2018, the ranges of motion in the upper extremities were within full limits. In the July 2019 Joint Motion, the parties agreed that the June 2016 VA examination findings were inadequate and did not fully address the Veteran’s flare-ups as required under Sharp v. Shulkin, 29 Vet. App. 26 (2017). In a February 2020 VA shoulder examination report, the Veteran described the impact of his flare-ups as more right shoulder pain and instability. He further described functional loss or impairment as cannot raise hand above head and limited movement. On physical examination, the Veteran’s right shoulder had flexion from 0 to 110 degrees, abduction from 0 to 110 degrees, external rotation from 0 to 80 degrees, and internal rotation from 0 to 80 degrees. Range of motion was noted to contribute to functional loss, causing less ability to move the shoulder and raise it. Range of motion was noted to elicit pain on flexion, abduction, and internal rotation. There was objective evidence of crepitus and moderate localized tenderness or pain on palpation of the lateral right shoulder. There was no objective evidence of pain on non weight bearing or weight bearing. Right shoulder strength was 4/5 in forward flexion and abduction with no atrophy or ankylosis. While a rotator cuff condition was suspected, there was no shoulder instability, dislocation or labral pathology suspected. Passive range of motion was noted to be the same as active range of motion. The examiner indicated that the examination was not being conducted immediately after repetitive use over time but was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain/weakness/fatigability/incoordination were noted to significantly limit functional ability with repeated use over time. Pain was noted to cause this functional loss and was described in terms of range of motion as flexion from 0 to 100 degrees, abduction from 0 to 100 degrees, external rotation from 0 to 75 degrees, and internal rotation from 0 to 75 degrees. The examiner indicated that the examination was not being conducted during a flare-up but was medically consistent with the Veteran’s statements describing functional loss during flare-up. Pain/weakness/fatigability/incoordination were noted to significantly limit functional ability with flare-ups. Pain was noted to cause this functional loss and was described in terms of range of motion as flexion from 0 to 100 degrees, abduction from 0 to 100 degrees, external rotation from 0 to 75 degrees, and internal rotation from 0 to 75 degrees. The examiner did note dislocation (acromioclavicular separation or sternoclavicular dislocation) of the right shoulder with tenderness on palpation of the AC joint that did not affect right shoulder range of motion. There was no loss of humerus head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity. The right shoulder disability’s impact on the Veteran’s ability to perform occupational tasks was described as jobs that required repetitive overhead lifting would worsen his symptoms. As an initial matter, the Board has determined that the assignment of a separate 20 percent rating for dislocation (acromioclavicular separation or sternoclavicular dislocation) of the right shoulder with tenderness on palpation of the AC joint is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5203. However, the Board finds that the assignment of a rating in excess of 20 percent is not warranted for the Veteran’s service-connected right shoulder strain with DJD under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5202. Favorable or unfavorable ankylosis of the shoulder joint or other impairment of the humerus (loss of head, nonunion, fibrous union, or malunion) is simply not shown in the evidence of record. There is also no evidence to show that the Veteran’s right shoulder has a limitation of motion of the arm to midway between the side and shoulder level or to 25 degrees from his side. The Board further finds that there is no basis for the assignment of any higher rating based on consideration of functional loss of the right shoulder during the appeal period. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Even with the Veteran’s assertions of severe pain, instability, reduced range of motion, flare-ups, weakness, and functional limitation, he has not demonstrated limitation of motion in the major right arm to warrant the assignment of any higher evaluation. The evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from painful motion, fatigue, weakness, stiffness, and tenderness in the right shoulder. The available medical findings do not show that painful motion, limitation of motion on repetitive use or during flare-ups, pain or limitation of motion on active motion/passive motion, or pain on weight-bearing/non weight-bearing resulted in functional loss warranting the assignment of any higher evaluation during the appeal period. Within the parameters of the holding in Sharp, the Board notes that the February 2020 VA examiner provided actual amounts in degrees of limitation of motion during flare-ups of the right shoulder and indicated that the Veteran’s examination was medically consistent with his statements describing functional loss with flare-ups. The examiner specified that the Veteran’s right shoulder was not observed during a flare-up. In a February 2020 VA medical opinion, the examiner discussed the Veteran’s reports of flare-ups where he indicated that he would modify activities and work through activities at a slower pace during right shoulder flare-ups. After review of the records, the examiner highlighted that range of motion of the shoulder during the flare-ups was documented in the February 2020 VA examination report. It was noted that during a flare-up, the Veteran would work at a slower pace until the flare had resolved. The examiner found that this was plausible as the pain in the shoulder would limit his ability to move the right shoulder to a moderate degree (as was documented in the February 2020 VA shoulder examination report). The examiner further noted that flare-ups would likely happen weekly, last approximately two days, would be precipitated by overuse, and would be relieved by rest and medications. The Board acknowledges that the Veteran is competent to report observable symptoms such as pain, weakness, instability, and reduced motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by VA medical professionals who have examined him. The medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate the degree of impairment attributable to the service-connected disability. The Board accords these findings greater weight than the Veteran’s complaints as to right shoulder symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, the Veteran’s contention that he is entitled to an increased evaluation for his right shoulder residuals is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings in the VA examination reports than to the Veteran’s general belief that he is entitled to a higher rating. In this case, evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected right shoulder disability varied to such an extent that ratings greater or less than the ratings currently assigned would be warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Board has noted that the representative has argued that the examiner who conducted the exam in February 2020 had his license revoked by Arkansas in 2014. However, the examination report reflects that’s the examiner’s license number, and the Board takes judicial notice that a publicly available internet database reflects that the examiner does have a current license, and that Arkansas Medical Board minutes reflect that the revocation of his license in 2014 was later rescinded in 2015. https://www.armedicalboard.org/Public/verify/results.aspx?strPHIDNO=ASMB14360 In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current ratings and that the Veteran’s service-connected right shoulder strain and DJD residuals do not meet the applicable criteria for the assignment of evaluations in excess of each 20 percent rating assigned. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s increased rating claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU from June 1, 2019 Generally, VA will award entitlement to a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran was unemployed or had difficulty obtaining employment, but whether the veteran could perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2020). Currently, the Veteran’s service-connected disabilities include right knee arthroplasty (rated as 60 percent disabling), residuals of traumatic subdural hematoma (rated as 30 percent disabling), right shoulder strain with DJD (rated as 20 percent disabling), postoperative deviated nasal septum with chronic sinusitis (rated as 10 percent disabling), left knee degenerative arthritis with instability (rated as 10 percent disabling), right knee instability (rated as 10 percent disabling), and right radius fracture residuals/right knee scar/left knee scar/right shoulder scars/migraine headaches (all rated as noncompensable). The Veteran has a combined rating of 20 percent from August 24, 2004; 40 percent from November 15, 2010; 100 percent from March 21, 2011; 40 percent from July 1, 2011; 100 percent from November 1, 2011; 40 percent from May 1, 2012; 50 percent from June 6, 2016; 60 percent from June 27, 2016; 50 percent from December 4, 2016; 100 percent from December 5, 2016; 60 percent from February 1, 2018; 100 percent from December 6, 2018; and 90 percent from June 1, 2019. 38 C.F.R. § 4.25 (2020). The Board has remanded the matter of entitlement to a TDIU prior to June 1, 2019. However, as the Veteran’s combined evaluation was 90 percent from June 1, 2019, he clearly meets the preliminary schedular criteria for a TDIU throughout this period on appeal. 38 C.F.R. § 4.16(a) (2020). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The noneconomic component includes consideration of the following: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The applicable regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not on a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board will now evaluate whether evidence of record during the appeal period from June 1, 2019, showed that the Veteran’s service-connected disabilities alone rendered him unable to secure and follow a substantially gainful occupation. Evidence of record detailed that the Veteran last worked full time in 2012 as a culinary arts instructor. He has a college degree as well as hotel restaurant and institutional management training. It is also clear that the Veteran’s multiple service-connected conditions, collectively, negatively impact his employability and affect several critical functions. In a July 2019 VA knee examination report, the examiner indicated that the Veteran’s knee disabilities impact his ability to perform occupational tasks. It was noted that he could sit 30 minutes with repositioning, stand 15 minutes, and walk 15 yards but could not climb or squat. In a September 2019 statement, the Veteran’s private neurologist, K. C., M. D., indicated that the Veteran had suffered a subdural hematoma and was having problems with cognition. The physician requested that the Veteran be released from work due to his medical inability to meet the requirements. In a November 2019 Comprehensive Independent Living Assessment, an Independent Living specialist noted that the Veteran’s medical conditions had worsened to the point that he was no longer able to actively pursue employment. It was confirmed that the Veteran had been found to have a serious employment handicap and that his counselor had found him to be infeasible for vocational goals. In view of the totality of the evidence, including the Veteran’s current medical findings detailing the severity of his service-connected disabilities, competent and credible lay assertions of unemployability due to limitations caused by service-connected disabilities, and the findings in the evidence of record, including in the September 2019 private physician statement as well as the November 2019 Comprehensive Independent Living Assessment, the Board has determined that the Veteran’s service-connected disabilities, coupled with his educational/training background and employment history, as likely as not preclude him from securing and following any substantially gainful occupation (either physical or sedentary). Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion from a VA examiner considering the entire evidence of record. However, to do so in this case would only serve the purpose of obtaining negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a veteran). Based on the foregoing and resolving all doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU from June 1, 2019, is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to SMC based on aid and attendance of another person Special monthly compensation based on the need for aid and attendance of another person is payable when the veteran, due to service-connected disability, is so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l) (2012); see also 38 C.F.R. § 3.350(b) (2020). Pursuant to 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; (3) the inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. A veteran need only show one of the enumerated factors identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Moreover, 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 performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). In November 2019, the Veteran submitted a preliminary independent living assessment. As a result, the Board found that the issue of entitlement to SMC based on the need for regular aid and attendance had been raised by the record. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). The Veteran receives VA disability compensation benefits for the following disabilities: right knee arthroplasty, residuals of traumatic subdural hematoma, right shoulder strain with DJD, postoperative deviated nasal septum with chronic sinusitis, left knee degenerative arthritis with instability, right knee instability, right radius fracture residuals, right and left knee scars, right shoulder scars, and migraine headaches. In a July 2019 VA knee examination report, the Veteran indicated that he could dress himself but needed help with his shoes occasionally. However, in a November 2019 Comprehensive Independent Living Assessment, an Independent Living specialist noted that the Veteran had functional impairment with sitting, standing, getting up or down from a seated position, dressing, hearing, bending, climbing, and stooping due to his service-connected disabilities. Concerning the activities of daily living, the Veteran was noted to be able to bathe, shave, and dress himself with certain articles of clothing. While he could put on a shirt, he required assistance with underwear, pants, socks, and shoes. The Veteran reported short-term memory problems, issues with verbal expression/word finding, trouble recalling common words or terms at times, and requiring help completing sentences by his wife when he struggled to find the right word/term. In a February 2020 VA SMC Aid and Attendance examination report, the examiner noted that the Veteran was not bedridden. Concerning the Veteran’s capacity to protect himself from the hazards/dangers of his daily environment, the examiner noted that the Veteran had short spells of dizziness when he first gets up, had complaints of short-term memory loss, and had terrible balance as a result of knee pain and instability. It was indicated that the Veteran was unable to perform certain self-care skills, including showering and dressing. He was further noted to have weakness in the right upper arm, balance problems due to knee pain, and to require use of bilateral upper arm braces to walk without the assistance of another person. The maximum distance he could walk without assistance of another person was 200 feet. The examiner found that the Veteran’s thought processes were good, he had good reasoning skills, and was capable of managing his financial affairs. His wife was noted to manage and monitor his intake of medications. The Board finds that SMC for aid and attendance is warranted because the evidence shows that the Veteran has an inability to dress himself as well as some demonstrated physical incapacities related to his service-connected disabilities that require care and assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Based on the foregoing discussion, the Board has determined that the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities cause him to be so helpless, as to be in need of actual personal assistance from others. Resolving all reasonable doubt in favor of the Veteran, entitlement to SMC based on the need for aid and attendance of another person is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020). Finally, whether the Veteran is entitled to SMC at the housebound rate is moot, as SMC based on the need for aid and attendance of another person is the greater monetary benefit. 38 U.S.C. § 1114(l), (s) (2012). REASONS FOR REMAND Entitlement to a TDIU prior to June 1, 2019, is remanded. As a decision on the previously remanded (and still pending AOJ action) issues of entitlement to an extension of a temporary total rating based upon convalescence for the Veteran’s service-connected right shoulder disability (in effect from November 1, 2011, to May 1, 2012); entitlement to a rating in excess of 10 percent prior to June 6, 2016, for right knee strain with DJD status post arthroscopic surgery; and entitlement to a rating in excess of 20 percent from June 6, 2016, to December 5, 2016, for right knee arthroplasty could significantly impact a decision on the issue of entitlement to a TDIU prior to June 1, 2019, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU prior to June 1, 2019, is required. The matter is REMANDED for the following action: (Continued on the next page)   After the pending intertwined issues detailed above have been resolved by the AOJ and any other necessary development has been completed, the claim for entitlement to a TDIU prior to June 1, 2019, on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the September 2020 SSOC. The AOJ should also consider whether referral to VA’s Director of C&P for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) is warranted for the issue of entitlement to a TDIU prior to June 1, 2019. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.