Citation Nr: 21062464 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-18 625 DATE: October 7, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities from March 25, 2011 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) based on housebound status pursuant to 38 U.S.C. § 1114 (s) from March 25, 2011 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to SMC based on the regular need for the aid and attendance (A&A) of another person is denied. FINDINGS OF FACT 1. From March 25, 2011, the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining gainful employment due to his service-connected mood disorder. 2. From March 25, 2011, the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining gainful employment due solely to his service-connected acquired psychiatric disability, and the Veteran's other service-connected disabilities were independently rated at 60 percent or more. 3. The weight of the competent and probative evidence is against finding that the Veteran's service-connected disabilities rendered him so incapable of performing the activities of daily living that he required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. CONCLUSIONS OF LAW 1. From March 25, 2011, the criteria for entitlement to a TDIU due to a service-connected mood disorder were met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. 2. From March 25, 2011, the criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114 (s) were met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.350. 3. The criteria for entitlement to SMC based on the need for regular aid and attendance were not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1983 to January 1994. Unfortunately, the Veteran passed away during the course of the appeal in March 2013. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 and April 2015 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO) that, in pertinent part, denied entitlement to special monthly compensation based on aid and attendance and entitlement to a TDIU. The appellant was afforded a videoconference hearing with the undersigned in December 2020. A copy of the hearing transcript has been associated with the claims file. These matters were previously before the Board in August 2018 and March 2021. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to a TDIU VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). From March 25, 2011, the Veteran was service-connected for a mood disorder with a 70 percent disability rating. Thus, the Veteran met the schedular TDIU rating criteria since March 25, 2011, based upon his service-connected mood disorder alone. 38 C.F.R. § 4.16 (a). Prior to March 25, 2011, the Veteran had a combined rating of 60 percent due to service-connected disabilities including: fibromyalgia rated 40 percent disabling; hepatitis C with hiatal hernia, gastroesophageal reflux, and cirrhosis of the liver, rated 30 percent disabling; fractured little left toe, rated noncompensable; and onychomycosis, rated noncompensable. The Veteran did not meet the schedular criteria for TDIU prior to March 25, 2011. 38 C.F.R. § 4.16 (a). In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but 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; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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 non-economic 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. In February 2013, the Veteran submitted an application for increased compensation based upon unemployability. The Veteran reported that he was unable to work due to his service-connected disabilities. He stated that he had previously worked for the United States Postal Service as a letter carrier and that he had an education that included two years of college. He reported that he became too disabled to work in November 2009 and that he was paralyzed from the waist down. The Veteran stated that he lost his employment with the Postal Service in February 2010. The private medical evidence and the VA treatment records show the veteran suffered a fracture to his left foot in 2009. In 2010, the Veteran suffered a C2 vertebral fracture in a motor vehicle accident. Social Security Administration (SSA) records show that the Veteran was determined to be disabled from November 19, 2009 due to his foot fracture and fibromyalgia. In February 2015, the appellant and her daughter participated in an informal conference with a Decision Review Officer (DRO) at the AOJ in Denver, Colorado. The appellant described her husband's depression and stated in the months before his death: he was not eating, he did not want to do anything (would sit and watch television all day), his mood was low, he could not remember anything, he had difficulty sleeping, and he stayed in his room and would isolate away from everyone. The appellant stated her husband isolated himself in his room and did not celebrate the last Christmas with his family before he died. During the appellant's 2020 Board hearing, the appellant argued that the Veteran's service-connected mood disorder on its own resulted in the Veteran being unable to secure or maintain gainful employment prior to his death. The appellant's representative argued that the opinion provided by the March 2011 VA psychiatrist supported a finding of unemployability based solely upon the Veteran's service-connected mood disorder. The appellant stated that prior to the Veteran's death that she had to write down all of his medical appointments and manage his medications due to the Veteran's lapses in memory. She stated that he was having terrible nightmares that were keeping him from sleeping and that he was increasingly hostile towards her. She stated that he was "mad with everything" and "very, very weird." Upon review of the evidence of record, the Board finds that the evidence is at least evenly balanced as to whether the Veteran was unable to secure or follow a substantially gainful occupation exclusively due to service-connected mood disorder from March 25, 2011, the date service-connection for a mood disorder was granted. The Board finds probative the opinion of the May 2011 VA psychiatrist that opined that the Veteran's psychiatric condition resulted in deficiencies in most of the following areas: work, school, family relations, judgment, thinking and mood. In my opinion, the veteran would have difficulty even sustaining simple work tasks in a loosely supervised environment at this time due to cognitive difficulties, depression with crying, and irritability. The Board also finds probative the opinion provided by the July 2021 VA examiner that 50 percent of the Veteran's unemployability was at least more likely than not is attributed to Veteran's service-connected condition and 50 percent to his nonservice-connected conditions and the sequelae, thereof. The examiner noted that findings revealed that the Veteran endorsed depression, agitation, poor sleep, chronic pain, tension and anxiety since 2007. The examiner noted that the Veteran reported "feeling depressed over the death of his granddaughter" and that he could not do "things that he used to." The examiner opined that the Veteran's symptoms and limitations were due to the combined effects of Veteran's SC conditions, and injuries and sequelae thereof he suffered in 2010 from the MVA and interactive effects of psychotropic and pain medications. The Board finds these opinions to be of greater probative value than the October 2018 VA medical opinion that determined that the Veteran's service connected disabilities did not prevent employment and did not cause a need for caregiver aid and attendance. This opinion only discusses the Veteran's psychiatric limitations prior to November 2009 (prior to the date that service-connection for mood disorder was granted) and does not discuss his limitations due to his psychiatric disorder after March 2011; as such, the 2018 opinion is found to be of less probative value regarding whether the Veteran's mood disorder rendered the Veteran unable to secure or follow a substantially gainful occupation from March 25, 2011. The Board also finds these opinions to be of greater probative value than the opinion provided by the July 2021 VA examiner that the Veteran's unemployability is less likely than not associated with Veteran's mood disorder and cognitive disorder secondary to medication. The Board notes that this opinion provided by the same examiner that opined that 50 percent of the Veteran's unemployability was at least more likely than not is attributed to Veteran's service-connected condition and 50 percent to his nonservice-connected conditions and the sequelae, thereof. The examiner indicates that this opinion is based upon the fact that the Veteran did not demonstrates neurocognitive deficits until after he began taking medications related to his non-service connected MVA residuals in 2010, and that because these symptoms did not occur until after that time that they are less likely than not related to the Veteran's service-connected condition or the medication used to treat these conditions. The Board finds this argument to be flawed. It does not consider the fact that the Veteran's medications for his service-connected medications could have interacted with the Veteran's medications being taken for his nonservice-connected condition resulting in the symptoms ascribed to the Veteran. Rather, it posits that since the symptoms developed after the introduction of the second medication that the second medication is primarily responsible to for the Veteran's cognitive impairment and does not discuss the initial mediation's role in the development of the Veteran's symptoms. It also does not consider that the Veteran's mental health symptoms may have worsened between November 2009 and the May 2011 VA examination. The Board notes that the 2011 VA examiner specifically opined that the interaction of both the Veteran's psychotropic medications and narcotic pain medications likely have adverse side-effects associated with his thinking. As such, the Board find this opinion to be of no probative value. The 2011 examiner also opined that the symptoms of the Veteran's mood disorder and cognitive impairment could not be differentiated. As these symptoms have not been clearly separated, the Board will consider the Veteran's symptoms of cognitive impairment as due to the Veteran's service-connected mood disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In sum, when considering the Veteran's work and education history and mental impairments due to service-connected mood disorder, the evidence is at least in a state of relative equipoise as to whether the Veteran was unable to secure and follow a substantially gainful occupation within the meaning of the applicable regulation exclusively due to impairment from service-connected mood disorder from March 25, 2011. 38 C.F.R. § 4.16. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to a TDIU exclusively due to impairment from the Veteran's service-connected mood disorder from March 25, 2011 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board, however, finds that entitlement to a TDIU prior to March 25, 2011 is not warranted. Initially, the Board notes that the Veteran did not meet the schedular criteria for a TDIU prior to March 25, 2011. 38 C.F.R. § 4.16 (a). Additionally, the Board notes that prior to March 25, 2011, the Veteran is not service-connected for a mood disorder or any psychiatric disability; as such, the Veteran's psychiatric symptoms prior to March 25, 2011 cannot be used to support a finding of TDIU. The Board finds probative the opinion provided by the 2018 VA examiner that the Veteran's service-connected conditions prior to March 25, 2011 would not result in unemployability separate from the Veteran's nonservice-connected left foot fracture and back disability. As none of the evidence supports that the Veteran was unable to work prior to March 25, 2011 due to his service-connected conditions, the Board finds that entitlement to a TDIU prior to March 25, 2011 is not warranted. 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. 2. Entitlement to SMC based on housebound status As applicable, an award of TDIU for a single disability satisfies the 100 percent rating criteria for additional compensation (SMC) under 38 U.S.C. § 1114 (s)(1). Bradley v. Peake, 22 Vet. App. 280, 292-93 (2008); 38 U.S.C. § 1114 (s)(1). As noted above, in addition to the newly awarded TDIU exclusively due to service-connected mood disorder from March 25, 2011, the Veteran is service-connected for the following disabilities that are separate and distinct during this period: fibromyalgia rated 40 percent disabling; hepatitis C with hiatal hernia, gastroesophageal reflux, and cirrhosis of the liver, rated 30 percent disabling; fractured little left toe, rated noncompensable; and onychomycosis, rated noncompensable. The combined disability rating for these separate and distinct disabilities is 60 percent. 38 C.F.R. § 4.25. From March 25, 2011, the Veteran had TDIU exclusively due to impairment from service-connected mood disorder and additional separate and distinct service-connected disabilities, rated at least 60 percent disabling. He therefore met the statutory criteria for SMC pursuant to 38 U.S.C. § 1114 (s)(1) from March 25, 2011. Bradley, 22 Vet. App. at 292-93. Entitlement to SMC pursuant to 38 U.S.C. § 1114 (s)(1) is thus warranted from March 25, 2011. 3. Entitlement to SMC based on the regular need for A&A "SMC is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. § 1114 (l). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself 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). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. 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 a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. Here, the Veteran submitted a VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in December 2012. The examination indicated that the Veteran was unable to prepare his own meals and he needed assistance in bathing. However, the principle restrictions reported by the examiner were that the Veteran was unable to ambulate and was wheelchair bound. As noted above, "SMC is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser, 25 Vet. App. at 68. Here, the limitations resulting in the Veteran needing aid and attendance were not due to his service-connected disabilities, but instead were due to his nonservice-connected foot fracture and spinal injury. During the appellant's 2020 Board hearing, the appellant and her representative did not argue that the Veteran required aid and attendance of another person due to his service-connected disabilities. Instead, it was argued that SMC at the housebound rate (granted above) was warranted based upon the ratings assigned for the Veteran's service-connected disabilities. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran's service-connected disabilities rendered him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Therefore, entitlement to SMC based on the Veteran's regular need for the aid and attendance of another person is denied. 38 C.F.R. §§ 3.350, 3.352. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.