Citation Nr: 21066650 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-03 272 DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 29, 2016, is granted. Entitlement to Dependents' Educational Assistance (DEA) benefits prior to June 29, 2016, is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another is remanded. FINDINGS OF FACT 1. The Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment prior to June 29, 2016. 2. The Veteran is considered permanently and totally disabled for purposes of eligibility for DEA benefits prior to June 29, 2016. CONCLUSIONS OF LAW 1. The criteria for TDIU have been met for the period prior to June 29, 2016. 38 U.S.C. §§ 5110(a), 5107(b) (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2021). 2. The criteria for eligibility for DEA benefits are met for the period prior to June 29, 2016. 38 U.S.C. §§ 3501, 3510 (West 2014); 38 C.F.R. § 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1972 to September 1980, and in the United States Navy from September 1988 to October 1997. See DD Forms 214. Procedurally, in June 2013 the Regional Office (RO) denied granting entitlement to a TDIU, which was not appealed. See June 2013 Rating Decision-Narrative. Then, in January 2014 the Veteran filed a claim for increased ratings, with an additional September 2014 request to reopen his claim for TDIU. See January 14, 2014 Third Party Correspondence; see Medical Treatment Record- Government Facility, received, January 14, 2014; see January 2014 F. 21-526EZ; see September 2014 Statement In Support of Claim. In March 2021, the Board remanded the claim to obtain outstanding VA treatment records, and to afford the Veteran up to date VA examinations assessing the functional impact of his disabilities. VA treatment records and VA examinations were obtained for the remanded issues, and as such, there was substantial compliance. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). In July 2021, the RO granted entitlement to a TDIU effective June 29, 2016, based on the Veteran's lumbar spine, left hip, and left and right knee disabilities, which interfere with the Veteran's ability to engage in physical work, and the bilateral hearing loss causing the Veteran to need to look directly at someone when they spoke in order to understand them. See August 2021 Notification Letter. The Veteran appeals for the grant of a TDIU for the appellate period prior to June 29, 2016. See August 2021 Appellate Brief. The Veteran's service-connected disabilities are as follows: depressive disorder not otherwise specified/anxiety disorder, not otherwise specified, also claimed as PTSD; bilateral sensorineural hearing loss; lumbar degenerative disc disease (DDD) with radiculopathy of the left lower extremity; patellofemoral arthritis of the left knee with torn medial meniscus and moderate instability; tinnitus; patellofemoral arthritis of the left knee with limited motion; degenerative joint disease (DJD) of the right knee; left hip strain (historically limited thigh extension); left hip strain (limited abduction); and left hip strain (limited flexion). The Veteran has been in receipt of a 90 percent combined rating since February 19, 2013, with a bilateral factor for diagnostic codes 5251, 5253, 5257, 5260, and 5260. See December 2016 Rating Decision-Codesheet. The Court has held that "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, TDIU is considered a part of the Veteran's claim for entitlement to increased ratings for his left and hip and knee, initially filed in January 2014, based on the Court's holding in Harper v. Wilkie. 30 Vet. App. 356, 363 (2018) (for legacy appeals, when a claimant files an NOD seeking a higher evaluation for a service-connected disability and, during the processing of that appeal, files a request for TDIU based on the same disability, the request for TDIU becomes part and parcel of that appeal unless and until the claimant is either granted TDIU for the entire period on appeal or withdraws the appeal). The Board is considering the period from the date of the increased rating claim, which includes a claim for TDIU. See January 14, 2014 Third Party Correspondence; see Medical Treatment Record- Government Facility, received, January 14, 2014; see January 2014 F. 21-526EZ. Applicable Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2021). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2021). 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 if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, due to 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. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). 1. TDIU The Veteran contends that he is entitled to a TDIU for service-connected disabilities, and that he should be afforded an examination to consider the impact of his disabilities on his employability. See July 2015 NOD. The Veteran has been in receipt of a 50 percent rating for depressive disorder since October 21, 2013, and a combined 90 percent rating from February 19, 2013, with a 100 percent rating from March 29, 2016, returning to a 90 percent rating May 1, 2017, etcetera. The Veteran is in receipt of a TDIU from June 29, 2016, such that the Board is only considering entitlement to a TDIU for the appellate period prior to June 29, 2016, after which he was in receipt of a TDIU. During the relevant period, the criteria for consideration of TDIU on a schedular basis is met. See July 2021 Rating Decision-Codesheet. The record shows that he has had prior employment or experience in sales, as a custodian, in park maintenance, as a paramedic, and as a telecommunications center operator. See VR&E General. He reported completing two years of college. See November 2014 VA 21-8940 Veterans Application for Increased Compensation Based on Individual Unemployability. The Social Security Administration considered him primarily disabled for carpal tunnel syndrome, with an anxiety disorder as a secondary cause as of May 2011. See Medical Treatment Records- Furnished by SSA. In January 2015 a VA examiner opined that the Veteran's service-connected left hip bursitis and thigh atrophy limited prolonged standing and walking, walking on uneven surfaces and stairs, bending, and limited the Veteran to lifting light weights on an occasional basis, such that physical labor in all categories was limited. See January 2015 VA Examination Hip and Thigh Conditions Disability Benefits Questionnaire. The examiner also indicates that sedentary work requires position changes based on his left hip symptomatology. Id. Indeed, the Veteran reports that he had last worked answering phones and performing data entry, during which he needed to change positions and walk every fifteen minutes. Id. In February 2015, a VA examiner opined that the Veteran's back and hip pain interfered with the Veteran's ability to sit for long, hurt him while walking, were a source of chronic pain, and caused difficulty bending. See February 2015 VA Examination Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire. The examiner opined that the back and hip, and the Veteran's anxiety related symptomatology would "keep him from working." Id. The examiner specifically noted that the Veteran's anxiety caused him to easily get angry, and yell or throw something, and when he was feeling depressed, he lacked motivation to do anything. Id. A March 2015 VA audiologist opined that the Veteran had difficulty hearing pretty much everything without hearing aids, such that he was basically deaf, and needed to request people to repeat what was said. See March 2015 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. A March 2015 VA opinion as to the vocational limitations caused by the Veteran's service-connected back and knee conditions indicate that the Veteran should be able to do sedentary work, but should avoid prolonged standing and walking. See March 2015 VA Medical Opinion Disability Benefits Questionnaire. Further, the examiner considered that the medications reportedly treating the back and knee conditions do not limit the Veteran's employment. Id. In an August 2016 statement the Veteran cited his clinical experience as a Navy Corpsman. See August 2016 Correspondence. At his March 2021 hearing he again mentioned his experience as a corpsman, to include conducting examinations for soldiers at the same level as a physician's assistant or nurse practitioner, in order to explain how he knew that the examinations that had been conducted on him were not properly done. See March 2021 Hearing Transcript. Here, the Board notes that new examinations were since obtained based on the remand instructions, and there is no prejudice to the Veteran to the extent that the Board has considered the examinations, where the Board is granting the claim for TDIU in full. At his March 2021 hearing, the Veteran described being unable to work because of the neuromuscular issues in his left leg and back, having had two surgeries on his spine, hardware in his left hip, and a damaged knee. See March 2021 Hearing Transcript. Additionally, he acknowledged that his anxiety issues caused him to get extremely frustrated and be unable to function. Id. The Veteran described inability to sit for long periods of time or walk long distances due to excruciating and burning pain in his leg. Id. The Veteran indicates that he could not take certain medications to help with his neuropathy and related pain due to his anxiety and depressive disorder, and the potential harmful side effects impacting his psychiatric disorder. Id. The Veteran did not believe that he could obtain or maintain gainful employment, and his wife agreed with this conclusion, noting that he could not even assist with the household. Id. The question remains whether the Veteran had been precluded from obtaining or maintaining a substantially gainful occupation as a result of service-connected disabilities prior to June 29, 2016. The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Resolving reasonable doubt in the Veteran's favor, and considering the Veteran's work experiences involving physical tasks, the evidence shows that the Veteran is unable to obtain or maintain substantially gainful physical or sedentary employment due to his service-connected disabilities of depressive disorder not otherwise specified/anxiety disorder, not otherwise specified, also claimed as PTSD; bilateral sensorineural hearing loss; lumbar degenerative disc disease (DDD) with radiculopathy of the left lower extremity; patellofemoral arthritis of the left knee with torn medial meniscus and moderate instability; tinnitus; patellofemoral arthritis of the left knee with limited motion; degenerative joint disease (DJD) of the right knee; left hip strain (historically limited thigh extension); left hip strain (limited abduction); and left hip strain (limited flexion). The Veteran has described, and the January 2015 and March 2015 VA examiners have found that the Veteran should avoid prolonged standing, walking, or bending due to his service-connected disabilities. See January 2015 VA Examination Hip and Thigh Conditions Disability Benefits Questionnaire; see March 2015 VA Medical Opinion Disability Benefits Questionnaire. Considering these limitations in light of his experience as a custodian, paramedic, or in park maintenance, the equipoise of the evidence suggests that the Veteran is precluded from physical employment. Essentially, the evidence suggests that sedentary employment is precluded. Specifically, the Veteran is unable to sit for more than fifteen minutes at a time without needing to change positions according to the January 2015 VA examiner. See January 2015 VA Examination Hip and Thigh Conditions Disability Benefits Questionnaire. Further, according to the February 2015 VA examiner the Veteran is quick to become angry, yell and or throw things due to his psychiatric disorder. See February 2015 VA Examination Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire. Finally, according to the March 2015 VA audiologist, the Veteran was basically deaf without his hearing aids such that he needed to ask others to repeat themselves. See March 2015 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. Again, these limitations are considered in light of the Veteran's past experience working in telephone communications which would presumably require both the ability to hear properly over the phone (usually with background noise) and the ability to function without becoming easily angry, yelling or throwing things, which would affect the consumers as well as the co-workers. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is precluded from obtaining and maintaining employment due to his service-connected disabilities, and as such he is entitled to the grant of a TDIU for the period prior to June 29, 2016. The Board is cognizant that the Veteran is in receipt of a 100 percent disability rating for the period from March 29, 2016 to June 29, 2016; however, considering the discussion below explaining that the DEA benefits are based on the permanently and totally disabled rating of the TDIU, here, the Board has awarded the TDIU for the entire period in order that the Veteran can obtain the full extent of the benefits. Ancillary Considerations Special Monthly Compensation The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Relevant to this appeal, a claim for increased disability compensation may include the inferred issue of entitlement to special monthly compensation (SMC), even where the Veteran has not expressly placed entitlement to SMC at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). The Board notes that SMC at the S level has been awarded by the RO, and SMC at a higher level (possibly L) is addressed in the remand. SMC(s) Here, the Veteran was awarded SMC in relation to the total rating for his hip combined with other disability of 60 percent from March 29, 2016 to May 1, 2017; and because he was housebound due to his temporary total rating for his lumbar spine along with additional disability of 60 percent from July 31, 2018 to September 1, 2018; and again, for those same reasons from March 7, 2019 to May 1, 2019. See July 2021 Notification Letter. While additional entitlement to SMC has not been claimed by the Veteran, the Board has nevertheless considered whether he is entitled to SMC based on the holding in Akles v. Derwinski, 1 Vet. App. 118 (1991). However, the grant of TDIU in this decision is based on the cumulative effect of his service-connected disabilities and not on a single disability. Multiple service-connected disorders that are defined as "one disability" under 38 C.F.R. § 4.16(a) in order to establish entitlement to a TDIU may not serve as "a service-connected disability rated as total" for the purpose of establishing eligibility for SMC under 38 U.S.C. § 1114(s). Youngblood v. Wilkie, 31 Vet. App. 412, 415-416 (2019). SMC is already awarded from March 29, 2016, such that the focus is prior to this date, and the Veteran does not otherwise have a single disability rated as 100 percent disabling. See July 2021 Rating Decision-Codesheet. Therefore, an SMC(s) award is not warranted under 38 U.S.C. § 1114(s). 2. Entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 Here, the Board notes that the ancillary issue of entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 for a Veteran who was discharged under other than dishonorable conditions and has a permanent and total service-connected disability(ies) was granted by the RO, effective June 29, 2016. See July 2021 Notification Letter. The question for the Board in light of the grant of a TDIU for the appellate period prior to June 29, 2016, is whether the Veteran is eligible for DEA benefits for this earlier period as well. For the purposes of DEA benefits, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510 (West 2014); 38 C.F.R. §§ 3.807(a), 21.3021 (2021). Here, in light of the TDIU now awarded for the entire appellate period, and where the DEA benefits are predicated on a finding of total disability in this case, the date of eligibility should be that date the total disability was awarded. Accordingly, eligibility for DEA benefits for the appellate period prior to June 29, 2016, is awarded. REMAND Although the Veteran has been awarded SMC at the S level, the record suggests that he may be entitled to SMC at the L level. See July 2021 VA 21-4138 Statement in Support of Claim; see also March 2021 Hearing Transcript. Specifically, the Veteran's wife has suggested that she cannot go places without the Veteran because of his suicidal ideation, as well as due to the Veteran's inability to hear without hearing aids and her concern she will not be able to reach him if she should try to call. Id. The Veteran's wife even described instituting a protocol within the household to manage his psychiatric symptoms and suicidal ideation. Id. SMC based on the need for regular aid and attendance of another (A&A) means being so helpless as to require the regular A&A of another person as determined under criteria enumerated in 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the veteran was in need of regular aid and attendance of another person: (1) inability of a veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of a veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all 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 A&A, not that there was a constant need for A&A. 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 SMC based on the need for A&A). Here, a remand is necessary to afford the Veteran an examination to determine whether the effects of his service-connected disabilities render him in need of regular aid and attendance of another, according to SMC (l). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA Aid and Attendance examination to determine whether it is at least as likely as not that there is a need for the regular aid and attendance of another person because of his service-connected disabilities, asking the examiner to specify if it is based on each service-connected disability individually or combined. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The Veteran is competent to report injuries and symptoms and his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.