Citation Nr: 21071859 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-08 573 DATE: December 1, 2021 ORDER The claims for special monthly compensation based on aid and attendance (SMC), increased rating for idiopathic partial simple seizure disorder, and service connection for hypertension, low back disorder, and a bilateral eye disorder are dismissed. Effective July 1, 2015, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. Effective January 20, 2017, a TDIU due to the service-connected seizure disorder is granted. Effective January 20, 2017, entitlement to SMC pursuant to 38 U.S.C. § 1114(s) is granted. REMANDED The claim for a rating in excess of 10 percent for a right knee disability is remanded. The claim for a rating in excess of 10 percent for a left knee disability is remanded. The claim for a compensable rating for hemorrhoids is remanded. A TDIU based on service-connected disabilities prior to July 1, 2015, is remanded. FINDINGS OF FACT 1. The Veteran has withdrawn the appeal regarding the claims for SMC, increased rating for idiopathic partial simple seizure disorder, and service connection for hypertension, low back disorder, and a bilateral eye disorder. 2. The Veteran's service-connected disabilities resulted in unemployability as of July 1, 2015, 3. The seizure disorder alone resulted in unemployability from January 20, 2017. 4. Since January 20, 2017, service connection is in effect for other service-connected disabilities that are independently rated as at least 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims for SMC, increased rating for idiopathic partial simple seizure disorder, and service connection for hypertension, low back disorder, and a bilateral eye disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a TDIU based on service-connected disabilities have been met from July 1, 2015. 3. The criteria for a TDIU due to seizure disorder alone from January 20, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 4. The criteria for special monthly compensation at the housebound rate, effective January 20, 2017, have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1985 to January 1990 In July 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In a December 2019 statement, the Veteran's representative withdrew the appeal regarding the claims for SMC, increased rating for idiopathic partial simple seizure disorder, and service connection for hypertension, low back disorder, and a bilateral eye disorder. The withdrawal request was confirmed at the hearing in July 2021. Hence, there remain no allegations of errors of fact or law for appellate consideration for these issues and they are dismissed. TDIU A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected 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 a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Gelb v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). From July 1, 2015, service connection is in effect for seizure disorder, unspecified mood disorder, right and left knee disabilities, fistula in ano, tinnitus, hemorrhoids, and headaches. The Veteran meets the schedular criteria from this date. The record includes the Veteran's histories that he stopped working on May 9, 2014. He has reported that he believes he was terminated because of his seizure disorder, though he has reported that a different reason was cited for the termination. A June 2015 vocational rehabilitation and education record reveals the determination that the Veteran lacked the education to obtain or maintain employment compatible with his service-connected conditions and that the Veteran had serious employment handicap from circumstances including severity of disabling conditions and withdrawal from society. The record also indicates that the seizure and psychiatric disorders have significantly affected occupational functioning, and the record indicates that the seizure disorder was determined to have significantly worsened as of January 20, 2017. Resolving all doubt in favor of the Veteran, the Board finds the collect Veteran's service-connected disabilities collectively rendered him unemployable as of July 1, 2015, and his seizure disorder alone as of January 20, 2017. SMC at the housebound rate The Court determined that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim. Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, 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. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her 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 or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court has held that although a TDIU may satisfy the "rated as total" element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this case, effective January 20, 2017, the Board notes that the Veteran was assigned a TDIU based solely due to his seizure disorder. Although his seizure disorder was not rated as 100 percent, for SMC purposes this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e. his seizure disorder), and has an additional service-connected disability that is independently rated at 60 percent, the criteria for SMC at the housebound rate were met as of January 20, 2017. Thus, in light of the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted, effective January 20, 2017. REASONS FOR REMAND Based on the Veteran's testimony that his hemorrhoids have increased in severity since the most recent VA examination, the Board finds the Veteran should be afforded a VA examination to determine the current severity of the hemorrhoid disorder. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board finds the Veteran should be afforded a VA examination to determine the extent and severity of the knee disabilities, including the impact of repeated use over time and whether they are associated with neurological impairment. Additionally, the record reports that the Veteran receives disability benefits from the Social Security Administration (SSA). These records could be relevant. Further development to obtain the records is in order. Finally, the Board finds the record would benefit if a VA form 21-4192 were requested from the Veteran's final employer. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain a copy of any disability determination(s) for the Veteran and a copy of the records associated with any such determination(s), notably those associated with the application for SSA benefits. 2. Undertake appropriate development to obtain a VA form 21-4192 from the Veteran's final employer. 3. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected hemorrhoid disability. Ensure that the examiner provides all information required for rating purposes. 4. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected knee disabilities. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Ensure that the examiner provides all information required for rating purposes, including ranges of active and passive motion and with and without weight-bearing and including pursuant to the "new" rating criteria (effective February 7, 2021). The examiner must describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.