Citation Nr: 21071386 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-18 570 DATE: November 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to special monthly compensation (SMC) on the basis of aid and attendance is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities render him unable to engage and retain substantially gainful employment. 2. The Veteran is not permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). 2. The criteria for SMC based on the need for regular aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1970 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 and August 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in July 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU 1. Entitlement to TDIU. VA will grant a total 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). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2020). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. The Veteran submitted a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in February 2015. The Veteran indicated that he had a college education and stopped working as an administrative officer on September 30, 2003; the Veteran also indicated that his employment ended on November 25, 2003. The Veteran indicated that he stopped working due to his service-connected disabilities. The Veteran also indicated that he has not sought additional training since becoming too disabled to work, and that he unsuccessfully sought employment in 2003 and 2006. A June 2015 correspondence from the Veteran's former employer indicates that Veteran worked as a local mental health coordinator from October 1986 to July 1996 and from August 1998 to November 2003; the Veteran's former employer stated that the Veteran filed for retirement in 2003, and that the Veteran did not request any accommodations by reason of disability. The Veteran is in receipt of a 30 percent disability evaluation for PTSD, effective November 2, 2019, and a 50 percent disability evaluation from July 31, 2009 through November 1, 2019; a 50 percent disability evaluation for obstructive sleep apnea, effective July 31, 2009; a 30 percent disability evaluation for irritable bowel syndrome, effective July 31, 2009; a 20 percent disability evaluation for left shoulder strain, effective July 31, 2009; a 20 percent disability evaluation for cervical spinal stenosis, effective July 31, 2009; a 20 percent disability evaluation for thoracolumbar spine degenerative disc disease with lumbar spine spondylosis, effective July 31, 2009; a 20 percent disability evaluation for hemorrhoids, effective November 29, 2015; a 10 percent disability evaluation for right hip traumatic arthritis, effective April 16, 1976; a 10 percent disability evaluation for residuals of a fracture of the right tibia and fibula with right knee arthritis and chondromalacia patella, effective April 16, 1976; a 10 percent disability evaluation for right ankle strain with osteoarthritis, effective July 6, 2009; a 10 percent disability evaluation for left hip strain with bursitis, effective July 31, 2009; a 10 percent disability evaluation for left knee strain, effective July 31, 2009; and a 10 percent disability evaluation for left ankle strain, effective July 31, 2009. The Veteran is also in receipt of noncompensable disability evaluations for erectile dysfunction, surgical scar, limitation of flexion of the right hip, limitation of flexion of the left hip, limitation of rotation of the right hip, and limitation of rotation of the left hip. The Veteran has a combined disability evaluation of 100 percent, effective July 31, 2009. See 38 C.F.R. § 4.25. Given that disabilities of both lower extremities are considered one disability under 38 C.F.R. § 4.16(a)(1), the Veteran met the schedular criteria for TDIU under section 4.16(a) effective July 31, 2009. The Board notes that the Veteran is also in receipt of special monthly compensation for loss of use of a creative organ pursuant to 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a). VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities render the Veteran unable to obtain or sustain substantially gainful employment for the rating period on appeal. The Board acknowledges that the June 2021 VA examination reports did not address whether the Veteran's service-connected disabilities rendered him unemployable. Nevertheless, VA examination reports of record reflect that the Veteran is unable to sustain a gainful occupation even with reasonable accommodations; the June 2021 VA PTSD examiner found that the Veteran's PTSD caused difficulty in establishing and maintaining effective work and social relationships, as well as difficulty adapting to stressful circumstances, including work or a work like setting, and the Veteran's VA obstructive sleep apnea examination indicated that the Veteran experienced daytime hypersomnolence. The Veteran's VA intestinal examination report indicates that the Veteran experiences frequent episodes of bowel disturbance with abdominal distress. Other VA examination reports reflect evidence of back pain affects his ability to engage in heavy lifting and prolonged sitting and standing. Likewise, a review of the Veteran's treatment records, and additional VA examination reports indicates that the Veteran's service-connected disabilities, in combination, are productive of symptomatology that contribute to his difficulty performing occupational tasks. As such, the Board finds that the evidence of record reflects symptomatology that supports the Veteran's contentions that he is unable to perform the physical and mental acts required to be employable. See Van Hoose, supra. As a result, the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment. SMC 2. Entitlement to special monthly compensation on the basis of aid and attendance. Under 38 U.S.C. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will considered in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. All of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) do not have to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. The evidence should establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). Determinations that the veteran is so helpless as to need regular aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). The Veteran contends that he is entitled to special monthly compensation based on need for aid and attendance, as he needs assistance with activities of daily living and cannot leave his home unattended. As detailed above, the Veteran is service-connected for PTSD, obstructive sleep apnea, irritable bowel syndrome, left shoulder strain, cervical spine stenosis, thoracolumbar spine degenerative disc disease with lumbar spine spondylosis, hemorrhoids, right hip traumatic arthritis, residuals of a fracture of the right tibia and fibula with right knee arthritis and chondromalacia patella, right ankle strain, degenerative joint disease of the left hip, left hip strain with bursitis, left knee strain, left ankle strain, erectile dysfunction, surgical scar, limitation of flexion of the left and right hips, and limitation of rotation of the left and right hips. The Veteran was awarded TDIU on the basis of these disabilities herein. In a June 2021 VA aid and attendance examination report, the VA examiner noted that the Veteran was able to feed himself and prepare his own meals. In addition, the VA examiner found that the Veteran did not need assistance in caring for the needs of nature and hygiene, medication management, or financial management. The treating provider noted that the Veteran did not require nursing home care; the treating provider also noted that he was not legally blind. The VA examiner stated that the Veteran had some chronic issues but appeared to be in good health; he had a steady gate with use of a rolling walker and good posture while sitting and standing. The Veteran was able to use the restroom and perform all tasks independently, and could rise from the seated position without the use of his hands. The Veteran was able to wash, dress, groom, and shave himself. He can put on his braces and shoes, but requires assistance from his wife for any buttons or fine motor needs that may be slightly difficult. The VA examiner noted that the Veteran has some limitation of the right hip, right knee, left ankle, and right shoulder, but that the Veteran did not have atrophy, contractures, or problems with weight-bearing. The examiner noted that the Veteran takes frequent rest periods and cannot stand, sit, or walk for any prolonged period of time. Based on the foregoing, the Board finds that special monthly compensation based on the need for aid and attendance is not warranted The evidence of record demonstrates that, as the result of his service-connected disabilities, the Veteran did not have anatomical loss or loss of use of both feet, or of one hand and one foot, or that he had blindness in both eyes with visual acuity of 5/200 or less; he was not blind due to a service-connected disability. In addition, the record reflects that the Veteran was not bedridden due to a service-connected disability. The Veteran's treatment records do not reflect that the Veteran had to stay in bed due to his service-connected disabilities; these records do not reflect any (voluntary or required) bed rest due to a service-connected disability. Moreover, the record does not reflect that the Veteran, as a result of his service-connected disabilities, was so helpless as to be in need of regular aid and attendance of another person. The Board reviewed the assertions of the Veteran and the statements of the Veteran's wife, a former registered nurse, attesting to his need for aid and attendance. In this regard, the Veteran's wife asserts that the Veteran should be entitled to SMC on the basis of aid and attendance because his use of hand braces due to nonservice-connected hand and finger arthritis causes the Veteran to need for assistance in hygiene needs; she also asserts that the Veteran requires aid and assistance because the removal of the Veteran's gallbladder and the symptoms of his cardiovascular disease. However, the Veteran is not service-connected for any hand or finger disabilities, removal of his gallbladder, or cardiovascular disease; SMC on the basis of aid and attendance must be based on the Veteran's inability to care for himself due to service-connected disabilities. Moreover, her assertions that the Veteran should receive SMC on the basis of aid and attendance because the Veteran does not have full control of his bowels due to his service-connected irritable bowel syndrome does not provide a sufficient basis for an award of aid and attendance. The June 2021 VA examiner noted that the Veteran's irritable bowel syndrome does not impact the Veteran's ability to care for himself and protect himself from hazards in his daily environment. Likewise, the Board observes that the Veteran's VA and private treatment records, as well as his VA examination reports, reflect that the Veteran does not experience incontinence of the bowels or bladder. In this regard, the Board acknowledges that the Veteran needed assistance with cooking for himself and requires a walker for ambulation, but the objective medical evidence of record does not show that he required a home health aide. The June 2021 VA examiner clearly indicated that the Veteran could perform his activities of daily living independently, feed himself, use the restroom without assistance, and that he had a steady gait with his walker; the VA examiner also acknowledged that the Veteran had pain due to his service-connected physical disabilities, but none were so severe as to require the assistance of another person and the Veteran is not in danger if left alone. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities cause him to be so helpless as to require regular aid and attendance of another person. There is nothing in the record which establishes that the Veteran needed aid and attendance due to his service-connected disabilities. As such, the Board concludes that special monthly compensation based upon need for aid and attendance is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.