Citation Nr: 21069574 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-36 573 DATE: November 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to May 29, 2020, excluding a period of temporary total evaluation from December 4, 2014 to January 31, 2015, is granted. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities prevent her from securing and following substantially gainful employment prior to May 29, 2020. 2. The Veteran's service-connected disabilities do not render her so helpless as to need regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU prior to May 29, 2020, excluding a period of temporary total evaluation from December 4, 2014, to January 31, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 4.3, 4.15, 4.16, 4.18, 4.19. 2. The requirements for special monthly compensation based on regular aid and attendance have not been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from December 1977 to December 1981. The Veteran also completed periods of active-duty service in the Navy Reserves from December 1985 to March 1986 and April 1986 to September 1986. She has additional periods of Navy Reserve service. These matters come before the Board of Veterans' Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter of TDIU was raised pursuant to the Veteran's claim for a higher initial rating for cervical spine disability in a decision issued by the Board of Veterans' Appeals (Board) in March 2019. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It was denied in this decision. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Remand (JMR) the Court in February 2020 vacated the denial and remanded the matters for action consistent with the JMR. In November 2020, the Board granted TDIU effective May 29, 2020 and remanded TDIU prior to this date. Entitlement to TDIU was referred to the Director of Compensation Service for extraschedular consideration in a May 2021 Board decision. The matter is once again before the Board. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran..."). TDIU Prior to May 29, 2020 The Veteran seeks entitlement to TDIU prior to May 29, 2020 due to her service-connected disabilities; she reports that she has not been able to work since 2003. TDIU is granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disability or disabilities, in light of factors such as work history, education, and vocational training. Age is not a factor. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 and 4.19. TDIU may be granted under 38 C.F.R. § 4.16(a) if she meets certain schedular rating requirements, or under § 4.16(b) if she does not, so long as she is incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disability or disabilities. Subsection 4.16(b) explains that it is the established VA policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in subsection 4.16(a). 38 C.F.R. § 4.16(b). Prior to May 29, 2020, the Veteran's service-connected migraine headaches rendered her 10 percent disabled from October 2, 2003. She had a temporary 100 percent evaluation from December 4, 2014, to January 31, 2015. Her migraine was then rated 10 percent disabling from February 1, 2015, and 50 percent disabling from September 11, 2020. Her service-connected cervical radiculopathy involving the upper radicular nerve group, left upper extremity, associated with degenerative disc disease of the cervical spine, was 10 percent disabling from October 2, 2003, and 20 percent disabling from August 14, 2017. Her service-connected cervical radiculopathy involving the upper radicular nerve group, right upper extremity associated with degenerative disc disease of the cervical spine was 20 percent disabling from August 14, 2017. Her impingement syndrome, left shoulder, was evaluated as 10 percent disabling from October 2, 2003. Her degenerative disc disease, cervical spine, was evaluated as 10 percent disabling from October 2, 2003. Maxillary sinusitis was evaluated as 10 percent disabling from April 15, 2019. The Veteran's service-connected disabilities have been rated a combined 30 percent disabling from October 2, 2003, to February 1, 2015, aside from a period of temporary total disability between December 4, 2014, and January 31, 2015. She was then rated a combined 60 percent disabling from August 14, 2017 to May 29, 2020. During these periods, she is ineligible for entitlement to TDIU on a schedular basis. Regarding the period of temporary total disability, generally, a request for TDIU is moot where a 100 percent schedular rating was awarded for the same period. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). While still factually unemployable, for this period where the Veteran is also a schedular total disability or is entitled to a temporary total disability, actual payment of TDIU would be duplicative. The Board recognizes that a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a Veteran's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, entitlement to SMC under 38 U.S.C. § 1114(s) may be warranted if the Veteran has a single service-connected disability rated at 100 percent and has additional a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. See Bradley, 22 Vet. App. at 280. For 38 U.S.C. § 1114(s) purposes, entitlement to TDIU for a single disability constitutes a 100 percent rating for a single service-connected disability. Id. In this case, the Board finds there is no need to determine the Veteran's potential entitlement to TDIU from December 4, 2014 to January 31, 2015, as the record reflects no single service-connected disability alone renders the Veteran entitled to TDIU. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Importantly, the Veteran and her representative contend all her service-connected disabilities together render her unable to secure and maintain substantially gainful occupation. The Veteran filed an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, in August 2020. She reported last working full-time in 2003 and becoming too disabled to work that same year. She worked in machine operation and cigar finishing full-time from 1995 until 2003 when she left this role due to her disabilities. She reported that she tried to obtain employment since becoming too disabled to work, which she identified as a part-time role selling tickets/working at an information booth. She stated that she worked in this role from 0 to 18 hours a week. She reported that she would lose 6 plus days a month due to disabilities. Regarding education, she completed 12 years of high school and attended community college for roughly a year. The Veteran included an addendum to this form providing additional details regarding her previous employment. She explained that she had been let go from her role as a machine operator after being unable to perform the necessary duties. She noted that although they attempted to accommodate her disability by placing her on light duty, there were no roles that did not involve looking down, which aggravated her neck pain. After this, she began part-time work. Based on her Social Security Administration (SSA) and other medical records, it appears that she also held a role as a security guard at the stadium during this time frame. According to the addendum, she worked 5 or 6 hours during a game, and "could sign up to work only on days I felt my best[.]" She further reported that even on days where she felt her best, her neck and shoulder pain bothered her, and she would experience shooting pain in her left arm. Even after taking pain medications, she needed to take at least 3 breaks during her shift, each lasting anywhere from 15 to 30 minutes. She also noted that she had to plan her schedule around when she had migraines and that she would have to call out of work due to pain and migraines sometimes 3 times in a row. After calling out twice in a row, she would go a few weeks without working due to the severity of her pain. She estimated that she worked roughly 2 to 6 days in an average month and said that she was never considered a permanent employee. She reported "I could not have done anything more structured or intensive for work and even the little I did do became increasingly more painful and unbearable." The Veteran has completed numerous VA medical examinations throughout the period on appeal, many of which addressed the functional impact of her disabilities on employment. A June 2007 VA headaches examinations notes that she had to leave work if she had headaches, and that she had lost a week of work because of it over the past year. The functional impact of sinusitis was described as decreased concentration, vision difficulty, lack of stamina, and weakness or fatigue. In a January 2010 VA joints examination, the Veteran reported that her neck problems did not interfere with her current job. VA medical records from April 2012 include a note from a physician stating that the Veteran "has multiple medical ailments that make her disabled and prevents her to be gainfully employed." A May 2014 VA cervical spine examiner opined that the Veteran's neck condition did not impact her ability to work. However, an August 2017 VA examiner found that the neck condition did have a functional impact on the Veteran's ability to work, noting that she had difficulty with combing her hair, putting on clothes and a bra, and that her pain intensifies after 20 minutes of driving. A VA January 2019 sinusitis examination noted that her sinusitis caused functional impact on her ability to work, showing that the sinusitis caused migraines which caused her to be unable to tolerate light, unable to drive, and required her to lay down in a dark room once the migraine occurs. The Veteran's SSA records indicate that she was found disabled since February 17, 2016, due to disorders of the back and a mood disorder. A private vocational assessment was completed in December 2020, during which the consultant noted that the Veteran's SSA earnings statement showed that she had earned income below the federal poverty threshold from 2005 to 2015 and has had no earnings since 2015. Following review of the file, he concluded that her role as a ticket and information booth assistant did not constitute substantially gainful employment, and that the Veteran was "limited to earnings only marginal in income due to the limitations resulting from her service-connected conditions, which prevented her from working more than she did." The consultant further opined that it was at least as likely as not that the Veteran was unable to secure or follow substantially gainful employment in any occupation regardless of skill or exertional level, since at least October 2003, due to her service-connected conditions. In May 2021, the Board remanded the matter to the Director of Compensation and Pension Service (C&P) for consideration of the Veteran's entitlement to TDIU on an extraschedular basis. In July 2021, two documents from the Director of C&P were uploaded into the Veteran's claims file. The first document appears to be a recommendation to grant entitlement to TDIU benefits on an extraschedular basis, referring to the vocational assessment as well as the SSA determination. The second document, signed by the Executive Director, is a decision to deny the extraschedular entitlement. Although it was conceded that the service-connected disabilities cause functional limitations, the Director concluded that the preponderance of the evidence failed to show that the Veteran was unable to obtain or maintain gainful employment due to her service-connected conditions. However, the basis for this determination is not clear as no specific reasoning was provided. After a thorough review of the record, the Board concludes that the evidence does demonstrate that the Veteran's service-connected disabilities prevent her from obtaining or maintaining substantially gainful employment prior to May 29, 2020. Although the Veteran was employed in a part-time capacity from 2005 to 2015, such does not constitute substantially gainful employment. She maintained this role for 10 years, but it was evidently flexible enough that she was able to work only when she felt well. Even during working hours, she described pain requiring several breaks over a 6-hour period. Furthermore, even when she did work the maximum part-time hours, her income was still below the federal poverty level. Furthermore, despite the Directors finding that extraschedular entitlement was not warranted, it was recommended by the rating specialist that initially completed the administrative review. Accordingly, when affording the benefit of the doubt to the Veteran, the evidence weighs in favor of granting extraschedular entitlement prior to May 29, 2020. Since the Veteran's part-time work is not substantially gainful employment, entitlement to TDIU is warranted since October 2, 2003. The Veteran was no longer employed at this time, and this was the date that the Veteran was initially service connected for her cervical spine disability and related disabilities, as well as her migraine headaches. SMC The Veteran's representative has also argued that the Veteran is entitled to SMC based on the need for regular aid and attendance (A&A). SMC is payable at a specified rate if a veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to need regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Aid and attendance is appropriate if the record establishes a factual need for the benefit under the criteria set forth in 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), aid and attendance is warranted if the following criteria are met: a claimant is unable to dress or undress herself, or to keep herself ordinarily clean and presentable; a claimant needs frequent 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 such aid, such as supports, belts, lacing at the back, etc.); a claimant is unable to feed herself through loss of coordination of upper extremities or through extreme weakness; a claimant is unable to attend to the wants of nature; or a claimant experiences incapacity, physical or mental, which requires care or assistance on a regular basis to protect her from hazards or dangers incident to his daily environment. The representative has specifically pointed to the January 2010 and August 2017 VA examinations indicating that the Veteran has severe difficulty with shopping, bathing, dressing, toileting, and grooming, and that her husband must help her with her hair and dressing. He also refers to findings in the vocational assessment that she requires assistance from her husband for activities of daily living such as dressing and grooming and that she hires help for household chores. The Veteran's June 2007 VA examination also notes that during a sinusitis attack, she would have severe difficulty with chores, including shopping, exercise, sports, recreation, traveling, bathing, dressing, toileting, and grooming. The Veteran reiterated this, reporting in a statement from February 2010 that "my left arm is almost of no use to me ... I can't dress myself or fix my hair without help from my husband." The Veterans VA treatment records have addressed her ability to complete activities of daily life (ADLs). Records from October 2008 indicated that she was independent in ADLs and instrumental ADLs (IADLs), although her performance was "poor." October 2011 records indicate that she had decreased ability to perform ADLs. June 2013 records found that she was independent in both ADLs and IADLs, but that she had decreased ADLs, decreased functional ability, and increased pain. November 2018 records indicate that she was fully independent with IALDs. October 2019 records show that she had adequate strength for performing ADLs and IADLs. March 2021 records show difficulty with ADLs, including in putting on shirts and undershirts, and difficulty with alternate ADLs. However, records from April 2021 found that she was able to do all activities on her own. The Veteran's SSA records provide additional information on the Veteran's abilities. Evidently, the Veteran had moved to Louisiana to care for her mother, and the two of them completed function reports in July 2016 describing the Veteran's abilities. It was noted that the Veteran completed grocery shopping for her mother, but reported some difficulties with dressing, bathing, care, and toileting, as well as trouble completing chores around the home. She reported some forgetfulness. In a corresponding evaluation from August 2016, it was noted that she had no need for assistance with dressing, bathing, performing regular hygiene, or simple chores, although it was noted that she could not stand for long periods of time, preventing her from washing dishes or mopping. She reported the ability to manage her daily life, including running errands such as grocery shopping, and the ability to interact with others normally. In the private vocational assessment discussed above, the consultant reported that the Veteran required assistance from her husband with dressing and grooming and that she had hired individuals to perform all household tasks due to pain in her neck, left shoulder, bilateral upper extremities, and headaches. The Veteran underwent a PTSD examination in August 2020 during which she was found capable of managing her financial affairs. She was not found to pose any threat of danger or injury to herself or others. She was not found to have intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was afforded an examination for housebound status or permanent need for regular aid and attendance in August 2021. The examiner described the Veteran's gait as antalgic, finding that she was unsteady and off balance. She reported falling 3 to 4 times a month, with 2 falls last year that caused injury. The Veteran was restricted in her ability to wash and blow dry her hair. She was found capable of feeding herself and preparing her own meals. She did not need assistance for bathing or tending to other hygiene needs. She did require medication management, described as "need[ing] help with placing medication in pill box." The Veteran was able to manage her own financial affairs. Movement restrictions were described as pain with weight bearing to shoulder, neck, and back on the left side. She lacked balance when walking over 100 feet without a walker and demonstrated decreased range of motion in the spine and neck. The examiner found that the Veteran was able to perform self-care and ambulate. The Veteran reported that she leaves home once or twice a week for grocery shopping and to attend to medical needs but requires a driver for appointments, due to receiving injections to her neck, shoulders, upper back, and wrists at her appointments. She uses an assistive device to ambulate. While the evidence suggests that the Veteran certainly benefits from assistance regarding some activities of daily living, it does not support a finding that she is so helpless as to need regular aid and attendance. Rather, she has consistently been found functional in her ADLs, and even took on a role of helping her mother with some of her chores, such as grocery shopping. Although the August 2021 A&A examination appears to focus primarily on the functional limitations caused by the cervical and upper extremity impairments, there is ample evidence in the file indicating that she remains functionally capable when considering the combined effects of her service-connected disabilities. Accordingly, the Board finds that the criteria for entitlement to SMC based on a need for regular aid and attendance have not been met. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.