Citation Nr: 21067947 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 20-06 416 DATE: November 8, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance, or at the housebound rate, is denied. FINDINGS OF FACT 1. The Veteran is currently service connected for limitation of flexion of the left knee, evaluated as 10 percent disabling, and limitation of extension of the left knee, evaluated as 0 (zero) percent (noncompensably) disabling; he has no other service-connected disabilities. 2. The preponderance of the evidence is against a finding that the Veteran's service-connected left knee disabilities, considered alone, render him unable to secure or follow a substantially gainful occupation. 3. The preponderance of the evidence is against a finding that the Veteran is in need of regular aid and attendance, or that he is housebound, as a result of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for referral for consideration of a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. 2. The criteria for an award of SMC based on the need for regular aid and attendance, or at the housebound rate, have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1945 to March 1949. His decorations include the World War II Victory Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Veteran and two of his sisters testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The issues on appeal were previously before the Board in February 2021, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. In its remand, the Board, in pertinent part, directed the AOJ to ensure that all VA treatment records were in the claims file, to include any records from the 1990s, and to obtain updated VA treatment records. In March 2021, the AOJ made a request for all VA treatment records, to include any records from the 1990s. In response, many additional VA treatment records were procured, including records dating from as early as 2001. While no records dating from an earlier period were found, in an August 2021 entry the AOJ found that all records of VA treatment had been associated with the claims file, to include any records from the 1990s, including clinical records, progress notes, and/or reports of hospitalization, whether or not they had been archived. In March 2021 and August 2021, the AOJ obtained updated VA treatment records. Given the efforts of the AOJ as outlined above, the Board finds that there has been at least substantial compliance with the February 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's claim for service connection for a left knee disability was also previously on appeal before the Board. In an August 2021 rating decision, the AOJ granted service connection for left knee limitation of flexion and left knee limitation of extension, assigning a 10 percent rating for the former and a 0 percent rating for the latter. As the August 2021 decision represents a full grant of benefits with respect to service connection, that issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to a TDIU. The Veteran contends that his service-connected disabilities prevent him from securing or maintaining substantial gainful employment. Specifically, he testified at the October 2020 Board hearing that he had been unemployable since 1988, when he was 60 years old, and that he had to stop working due to his left knee condition. VA will grant a TDIU only if the evidence shows that a veteran is precluded, by reason of service-connected disability, 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. Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that if there are two or more 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. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to a TDIU, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran fails to meet the foregoing percentage standards, but the evidence shows that he or she is unemployable by reason of service-connected disability, the case will be referred to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In the present case, the Veteran is service connected only for left knee limitation of flexion, rated as 10 percent disabling from May 16, 2018, and left knee limitation of extension, rated as 0 percent disabling from May 16, 2018. His combined rating is 10 percent from May 16, 2018. As such, he does not meet the schedular criteria for a TDIU at any point during the appeal period, and the Board may only consider whether referral for consideration of a TDIU on an extraschedular basis is warranted. 38 C.F.R. § 4.16(a). Here, the record reflects that the Veteran submitted an application for a TDIU in October 2020. He asserted that the only disability which prevented work was his left knee disability. He indicated that he was self-employed and working in home repair from January 1963 until November 1988, which is when he last worked. He also indicated that he finished high school and one year of electrical school. Social Security Administration (SSA) inquiries in the claims file indicate that the Veteran never applied for disability benefits from the SSA, though he was only 60 years old when he last worked in 1988. Turning to the medical evidence of record, the Board notes that the earliest medical treatment record in the claims file is a VA treatment record from May 2001, which indicates that the Veteran transferred his medical care to VA at that time. While there is nothing in the May 2001 record to indicate a problem with the knees, subsequent VA treatment records show ongoing problems with both knees, including that he had knee injections to both knees on several occasions in 2016, 2017, and 2018. A December 2019 VA treatment record shows that he was referred for a wheelchair for long distances due to an unsteady gait and severe degenerative joint disease of both knees. The Veteran was afforded a VA examination regarding his left knee in June 2021. The examiner noted that the Veteran used a wheelchair occasionally and a walker regularly, that he had pain with walking any distance, that he was unable to squat or pick up objects off of the floor, and that he was unable to climb stairs without assistance. The Veteran was also afforded a VA examination specifically in connection with his claim for SMC in June 2021. The examiner indicated that the Veteran was not restricted to his home or its immediate vicinity and that he was not and never had been hospitalized. The examiner noted that the Veteran required an attendant in reporting for the examination, who was a friend that drove him there in a private, unmodified sedan. The examiner further indicated that the Veteran was not bedridden, did not use any orthopedic or prosthetic appliances, and did not complain of dizziness or loss of memory. The examiner did indicate, however, that the Veteran reported occasional (multiple times per day but not continuous) episodes of loss of balance mostly when rising from sitting and stated that he took an electric wheelchair to do pool exercises or to play bingo, that he then returned to his apartment, and that while he received meals on wheels for lunch, he made his own breakfast and dinner. He also stated that every other week or so the Veteran went out and socialized, that he still drove, and sometimes did his own grocery shopping, but that most of the time he had his food delivered. He further noted that the Veteran performed his own activities of daily living. On examination, the Veteran was noted to have moderate deformities in the DIP joints of the right upper extremity due to osteoarthritis, but had no functional restrictions with his left upper extremity. He also had no atrophy, contractures, weakness, paralysis, lack of coordination, weight-bearing deficits, propulsion deficits, or other interference, but did have limitation of motion in both knees and balance deficits described as a wide-based gait. The examiner then noted that the Veteran was unable to stand fully erect and was unable to walk without the assistance of another person, and that pain in multiple joints of both lower extremities including the knees, hips, and feet, as well as the low back, resulted in a decreased ability to ambulate and to maintain balance. The examiner found that the Veteran was able to walk with a walker or holding onto furniture, was able to leave the house 4 days per week, that his vision was not worse than 5/200 in both eyes, and that diagnoses included osteoarthritis of the left knee. Finally, he noted that the Veteran handled money and paid bills himself, and that he was alert, oriented, and appeared to have sound judgment. The Board is sympathetic to the Veteran's claim and acknowledges that the evidence demonstrates that he has limitations due to his service-connected left knee disabilities. However, the evidence of record, including the June 2021 VA examinations, does not support a finding that his service-connected left knee disabilities, considered alone, render him unable to secure or follow a substantially gainful occupation. While the evidence demonstrates that he has limitations in walking, standing, squatting, and stair climbing due, at least in part, to his service-connected left knee disabilities, there is no indication that his service-connected disabilities impair functions such as grasping, typing, reaching, hearing, or seeing. Nor is there any indication that his service-connected disabilities impair his mental ability to perform occupational tasks, in terms of, for example, memory, concentration, ability to adapt to change, and getting along with coworkers. In light of that, and given that he has a high school education and years of experience running his own businessand disregarding the impact of age, as the law requiresthe Board finds that the preponderance of the evidence is against a finding that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. Referral to the Director of Compensation Service is not warranted under 38 C.F.R. § 4.16(b), and the appeal of this issue must be denied. 2. Entitlement to SMC The Veteran contends that he is entitled to SMC based on the need for regular aid and attendance, or at the housebound rate. Under applicable law, a veteran shall be considered to be in need of regular aid and attendance if: he/she 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 is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(c). Under 38 C.F.R. § 3.352(a), determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration is to be given to the inability of the veteran to dress or undress themselves, or to keep clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed themselves; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect themselves from the hazards or dangers of the daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a). It is mandatory for VA to consider the enumerated factors within the regulation, and that at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). In order for the Veteran to prevail in the claim, the evidence must show that it is a service-connected disability that has resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). The regulations also provide additional compensation at the "housebound rate" where a veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his 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 lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Initially, the Board notes that the Veteran's service-connected disabilities have not resulted in him being 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. Indeed, he is not service connected for any eye disability. There is also nothing in the file to indicate that he is, or has ever been, a patient in a nursing home because of mental or physical incapacity. The Board again notes that the Veteran is only currently service-connected for left knee limitation of flexion and left knee limitation of extension. The Veteran has been afforded only one VA examination regarding his service-connected disabilities, which was conducted in June 2021. As noted, the examiner found that due to his service-connected left knee disabilities, the Veteran used a wheelchair occasionally and a walker regularly, that he had pain with walking any distance, that he was unable to squat or pick up objects off of the floor, and that he was unable to climb stairs without assistance. As noted, the Veteran was also afforded a VA examination specifically in connection with his claim for SMC in June 2021. The examiner indicated that the Veteran was not restricted to his home or its immediate vicinity and that he was not and never had been hospitalized. The examiner noted that the Veteran required an attendant in reporting for the examination, who was a friend that drove him there in a private, unmodified sedan. The examiner further indicated that the Veteran was not bedridden, did not use any orthopedic or prosthetic appliances, and did not complain of dizziness or loss of memory. The examiner did indicate, however, that the Veteran reported occasional (multiple times per day but not continuous) episodes of loss of balance mostly when rising from sitting and stated that he took an electric wheelchair to do pool exercises or to play bingo, that he then returned to his apartment, and that while he received meals on wheels for lunch, he made his own breakfast and dinner. He also stated that every other week or so the Veteran went out and socialized, that he still drove, and sometimes did his own grocery shopping, but that most of the time he had his food delivered. He further noted that the Veteran performed his own activities of daily living. On examination, as noted, the Veteran had moderate deformities in the DIP joints of the right upper extremity due to osteoarthritis, but had no functional restrictions with his left upper extremity. He also had no atrophy, contractures, weakness, paralysis, lack of coordination, weight-bearing deficits, propulsion deficits, or other interference, but did have limitation of motion in both knees and balance deficits described as a wide based gait. The examiner noted that the Veteran was unable to stand fully erect and was unable to walk without the assistance of another person, and that pain in multiple joints of both lower extremities, including the knees, hips, and feet, as well as the low back, resulted in a decreased ability to ambulate and to maintain balance. The examiner found that the Veteran was able to walk with a walker or holding onto furniture, was able to leave the house 4 days per week, that his vision was not worse than 5/200 in both eyes, and that diagnoses included osteoarthritis of the left knee. Finally, he noted that the Veteran handled money and paid bills himself, and that he was alert, oriented, and appeared to have sound judgment. Following review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is in need of regular aid and attendance, or that he is housebound, as a result of service-connected disability. None of the evidence indicates that he is unable to dress or undress himself or to keep clean. He has no prosthetics which need adjustment. He is able to prepare his own meals and feed himself independently, to socialize with others, to drive and shop, and to complete all other activities of daily living. In addition, while he experiences multifactorial loss of balance on occasion when rising and sitting, and requires help with walking, the evidence indicates that he is able to function and keep himself safe by ambulating with the assistance of a wheelchair or walker. In short, none of the enumerated factors of 38 C.F.R. § 3.352(a) are present in this case. See Turco, supra. While the Board acknowledges that the Veteran's service-connected left knee disabilities impact his functioning, the evidence does not establish that his left knee disabilities, considered alone, require the aid and attendance of others or render him housebound. As the preponderance of evidence is against the claim, the appeal of this issue must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.