Citation Nr: 21072911 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 13-02 481 DATE: December 6, 2021 ORDER 1. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) rating, including on an extraschedular basis, prior to August 3, 2012, is denied. REMANDED 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. 3. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance (A&A) of another person, is remanded. FINDING OF FACT Prior to August 3, 2012, the Veteran's service-connected disabilities (right knee total knee replacement (TKR) (rated 30 percent), hypertension (rated 10 percent), tinnitus (rated 10 percent), lymphedema (rated 10 percent), and hearing loss (rated 0 percent)) had a combined rating of 40 percent from May 1, 2011 and a combined rating of 50 percent from August 23, 2011; the preponderance of the evidence is against a finding that prior to August 3, 2012, the service-connected disabilities, alone, were of a nature and severity sufficient to result in functional impairment that precluded substantially gainful employment. CONCLUSION OF LAW Prior to August 3, 2012, the schedular rating requirements for a TDIU rating were not met, and TDIU on an extraschedular basis was not warranted. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1969 to February 1973 and from January 1974 to January 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2014 and January 2019 rating decisions. An August 2017 Board decision, in part, found that entitlement to a TDIU rating was raised by the record in the context of the claim for increase, and remanded the claim. A May 2018 CAVC Joint Motion for Partial Remand (JMPR) notes that the Board remanded entitlement to a TDIU rating and that such claim was not encompassed by the motion. An April 2020 rating decision granted a TDIU rating effective August 16, 2017, and a September 2020 rating decision granted an earlier effective date of January 27, 2014 for the TDIU rating. A January 2021 Board decision granted entitlement to a TDIU rating from [the still earlier effective date of] August 3, 2012, and remanded the claims of entitlement to a rating in excess of 10 percent for bilateral hearing loss and entitlement to an extraschedular TDIU rating prior to August 3, 2012. Since the TDIU was raised as part of the post-TKR right knee disability claim for increase, the Board is required to address whether a TDIU rating was warranted throughout the period on appeal. As discussed in more detail below, the claim for increase was filed in December 2012, therefore the period for review begins one year prior, in December 2011. In an October 2021 statement, the Veteran's attorney raised a claim of SMC based on A&A (raised as part of the remaining bilateral hearing loss claim for increase) and submitted a September 2021 statement by the Veteran's wife in which she described the types of assistance that she provides to him on a daily basis. Such claim has been added to the title page and is addressed in more detail below. 1. Entitlement to a TDIU rating, including on an extraschedular basis, prior to August 3, 2012, is denied. The Veteran contends that his service-connected disabilities prevented him from engaging in substantially gainful employment before August 3, 2012. A TDIU may be assigned where 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 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). Prior to August 3, 2012, the Veteran's service-connected disabilities consisted of: right TKR (rated 30 percent), hypertension (10 percent), tinnitus (10 percent), lymphedema (10 percent), and hearing loss (0 percent)). Under 38 C.F.R. § 4.25, the combined rating was 40 percent from May 1, 2011 and 50 percent from August 23, 2011. Such ratings do not meet the threshold minimum schedular rating requirement for a TDIU rating under 38 C.F.R.§ 4.16(a); that is, he did not have a single service-connected disability rated 60 percent or more, and the combined schedular rating for service-connected disabilities was not 70 percent or more. Accordingly, prior to August 3, 2012, a schedular TDIU rating was not warranted. Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). If deemed warranted, the matter is referred to the Director, Compensation Service, for extraschedular consideration in the first instance. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See also Faust v. West, 13 Vet. App. 342, 356 (2000). Marginal employment (for purposes of 38 C.F.R. § 4.16) generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. 38 C.F.R. § 4.16(a). Substantially gainful employment contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). Whether service-connected disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care providers. For a veteran to prevail on a claim for TDIU, the record must reflect circumstances that place the veteran's case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, the Board finds that the preponderance of the evidence is against a finding that prior to August 3, 2012 the Veteran was unable to obtain and maintain a substantially gainful occupation due to his service-connected disabilities. As noted above, the relevant claim for increase was filed in December 2012, therefore the period for review begins one year prior, in December 2011. A November 2011 VA treatment record notes that the Veteran reported periodic pain, swelling, and instability, in his right knee, and pain in his osteoarthritic left knee. A March 2012 VA treatment record notes that the Veteran reported that he walks outside of his room at least twice a day and walks inside his room at least once every two hours. He related that he experienced pain of 8/10 (intensity) in both knees which was aggravated by prolonged standing, walking, and sitting. A May 2012 VA treatment record notes that the Veteran reported right knee pain and that he received two single point canes to use for ambulation. On examination, a well-healed right knee scar was noted, and there was no erythema or increased skin temperature. The provider noted that the right knee was a little loose, but the range of motion was smooth. Right knee X-rays showed no evidence of loosening or infection. A June 2012 VA treatment record notes that the Veteran reported chronic bilateral knee pain of 7/10, and that he used bilateral canes for ambulation. A July 2012 VA treatment record notes that there was no evidence of right knee loosening or infection, and X-rays looked normal. A rollator walker was ordered for use in addition to the two single point canes the Veteran recently began using for ambulation. On the Veteran's April 2018 TDIU application, he claimed his disabilities affected his full-time employment in 2012, that he last worked full time in 2013, and that he became too disabled to work in 2013. He reported that in 2011 he worked at Go Potty 40 hours a week and earned $13.50 per hour; in 2012 he worked at NAPA 40 hours a week and earned $10.00 per hour; and from late 2012 to early 2013 he worked at AC Supply 40 hours a week and earned $10.00 per hour. Specific months and dates were not included and subsequent attempts to identify such time periods were unsuccessful. However, in a later statement (noted below), the Veteran did approximate how many months he worked at each job. In an August 2018 statement, the Veteran reported that he worked for the postal service until 2004 and finally retired because the job was exacerbating his right knee disability. He related that in 2011, he worked for a while at Go Potty, but it hurt his knee to load and unload items, and that he worked at NAPA, also as a driver, but using the clutch on the manual-drive truck, aggravated his knee. He reported that he also worked as a local delivery driver but was eventually unable to unload heavy items, and that he was periodically called "deaf man," due to his hearing loss and tinnitus. He stopped attempting to work in 2013. On August 2018 private vocational assessment, the Veteran reported current right knee pain, periodic wooziness due to hypertension, and communication difficulties due to hearing loss and tinnitus. It was noted that he obtained an Associate's Degree in business in the late 1970's and, after leaving the postal service, worked several short-term jobs until late 2012. He related that while working as a delivery driver from 2011 to late 2012, he had difficulty keeping up with his tasks, and that while working at NAPA, he was allowed to take breaks in the shop, but not on delivery routes, and that the demands of driving any distance were taxing on his right knee disability. He reported that he experienced increased pain while maintaining his right knee in a flexed posture while driving, and that climbing into and out from the truck also caused increased knee pain, which ultimately led to his quitting that job after a couple of months. He related that while working with Go Potty, he utilized a forklift to load products, and in between delivery sites took several unscheduled breaks. He also indicated that if he drove over 20-30 minutes, he required a break to stand and stretch his right leg. [The Board notes that the Veteran reported the working conditions at AC Supply; however, he worked at this company after August 2012, and a TDIU has been awarded for that period.] He also reported difficulty communicating with others in these jobs due to his hearing loss and tinnitus, sometimes being called "deaf man" because he had to ask others to repeat themselves. He ceased seeking employment in 2013. The provider opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment since 2004, when he last worked on a consistent, substantially gainful basis due to his service-connected disabilities. She referenced various treatment records from 2004 to 2018, but the Board notes that none of the cited records are from the period on appeal (i.e., from December 2011 to August 3, 2012). The provider further opined that the Veteran's employment from 2005 to 2013 was not representative of substantially gainful employment. She explained that he only earned marginal income during those years and was unable to maintain the positions due to his service-connected disabilities, and indicated that he often performed the job in a way that employers in the competitive labor market would not generally tolerate (i.e., frequent unscheduled breaks and not meeting performance standards). The Veteran's Social Security Administration (SSA) earnings record, received in October 2018, notes that in 2011 he earned $7819.24, in 2012 he earned $9833.92, and in 2013 he earned $7415.00. The U.S. Census Bureau Poverty threshold for 2012 for one person is $11945. In January 2021, the Board remanded the case to the AOJ for referral of the TDIU claim for extraschedular consideration. In March 2021, the AOJ referred the case to the Director, Compensation Service, for extraschedular consideration for the period prior to August 3, 2012, and in a March 2021 advisory opinion, the Executive Director found that the overall evidence failed to support the claim for a TDIU on an extraschedular basis. Referral is made where a veteran, who is unemployable by reason of service-connected disabilities, fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Board had not previously made any factual findings as to whether the Veteran was unemployable due to service-connected disability prior to August 3, 2012. (In its January 2021 remand, the Board stated there was evidence "suggesting" the Veteran's service-connected disabilities interfered with his occupational functioning prior to August 3, 2012, so on that basis it directed the case to be referred for extraschedular consideration.) As such, it is not incumbent upon the Board to "explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage." See Ray v. Wilkie, 31 Vet. App. 58 (2019). Moreover, the Board is not obliged to defer to the findings of the Director (see Wages v. McDonald, 27 Vet. App. 233 (2015)), who here determined not to grant an extraschedular TDIU. In an April 2021 statement, the Veteran provided more information regarding his employment from 2011 to 2013. He related that in 2011 he worked as a driver for Go Potty for about six months, that the employer did not make any concessions for him, and that he felt compelled to leave because he could not keep up with the physical demands of the job. He reported that he was unable to sit for prolonged periods, which made working as a driver difficult, and that he was required to load and unload port-o-potties, which stressed his (right) knee. He related that in 2012 he worked between six and seven months as a delivery driver for NAPA, and although his employer did not make any specific concessions for him, he was given some extra time to make deliveries. He reported that he left because he was unable to sit for prolonged periods or lift deliveries. He also reported that from late 2012 to early 2013 (a period for which a TDIU has been granted) he worked as a delivery driver for AC Supply for about 5-6 months. His employer made no concessions for him, and he left because he was unable to sit for prolonged periods or lift deliveries. As noted above, prior to August 3, 2012, the Veteran's service-connected disabilities included a right TKR, hypertension, tinnitus, lymphedema, and hearing loss. The medical records for the period on appeal reflect that the hypertension, tinnitus, lymphedema, and hearing loss caused minimal, if any, functional effects while the right TKR resulted in much more functional impairment. November 2011 to July 2012 VA treatment records note the Veteran's report of the use of canes for ambulation and that he experienced bilateral knee pain that was aggravated by prolonged standing, walking, and sitting. Also, in lay statements, he reported difficulty communicating with co-workers due to his tinnitus and hearing loss. In his TDIU application, he stated that all of his service-connected disabilities prevented him from engaging in gainful employment. As such, the employability inquiry will include his service-connected disabilities, with the acknowledgment that the right TKR was much more disabling. Normally a TDIU analysis includes whether or not the Veteran is considered unemployable during the period under consideration. Here, the Veteran has reported working during the period on appeal, therefore, the analysis shifts to determine whether his employment would be considered substantially gainful employment. The Board has considered the August 2018 private vocational assessment, wherein the provider concluded that the Veteran's employment from 2005 to 2013 was not representative of substantially gainful employment. She explained that he only earned marginal income during those years and was unable to maintain the positions due to his service-connected disabilities. The Board acknowledges that the Veteran had difficulty working between 2011 and 2013, particularly due to his right knee disability, and to a lesser extent his hearing loss disability and tinnitus, however, his statements show that for most (if not all) of the period on appeal, he was able be gainfully employed. He related that he worked 6-7 months in 2012 (presumably around the first of the year forward), and that during this period he worked 40 hours per week and earned $10.00 per hour. [The Board notes that an August 2018 provider notes that the Veteran quit his job with NAPA in 2012 after a couple of months, which is not accurate.] SSA records show that he earned $9833.92, and when compared to the amount needed for one person to exceed the poverty threshold (in 2012) was $11945.00, and considering the Board is determining entitlement for a TDIU only prior to August 3, 2012 (approximately 7 months), the amount earned (when average monthly is projected over a year) exceeded the poverty threshold. In summary, the totality of the evidence, including the descriptions of the Veteran's functional capabilities in the contemporaneous VA records, the August 2018 vocational assessment, and his various lay statements, is against the Veteran's claim for an extraschedular TDIU prior to August 3, 2012 in that he is shown to have been employed in substantial gainful employment. The Board is not suggesting that the Veteran's service-connected disabilities for that period did not have present difficulty in obtaining and maintaining substantially gainful employment. Being evaluated at 30 percent disabling, His right TKR symptoms and impairment (rated 30 percent disabling and significant) and his hearing loss (albeit rated 0 percent during this period) did appear to have caused him some difficulty as a delivery driver. Nevertheless, the Board is persuaded that the functional loss from the Veteran's service-connected disabilities did not preclude his participation in a substantially gainful employment prior to August 3, 2012. Accordingly, it is the Board's judgment that the preponderance of the evidence is against the claim for a TDIU rating prior August 3, 2012, and that the appeal in this matter must be denied. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss. In January 2021, the Board directed that a record of a copy of the October 2019 complete VA audiometry report (including puretone audiometry reported in numerical values) was to be secured, and that if such evidence was unavailable, a VA audiological examination was to be arranged to ascertain the current severity of the Veteran's hearing loss. The October 2019 VA audiometry results (completed, in part, for hearing aid evaluation) were received and show puretone threshold averages of 53 in the right ear and 48 in the left ear. However, this audiological evaluation noted that CIDW-22 material was used for speech audiometry testing, rather than Maryland CNC word lists. Hence, the speech discrimination testing to evaluate the level of the Veteran's hearing loss, as regulation requires speech discrimination testing be completed using Maryland CNC word lists. 38 C.F.R. § 4.85(a). Considering the lengthy duration intervening period since his last VA examination and the Veteran's ongoing allegation of worsening hearing acuity, a contemporaneous examination to assess the disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to SMC based on A&A. In an October 2021 statement, the Veteran's attorney raised a claim of SMC based on A&A and submitted a September 2021 statement by the Veteran's wife describing the types of assistance that she provides him on a daily basis. She related that due to his service-connected disabilities she has been assisting him with daily activities for at least the last year. She reported that she helped the Veteran get dressed and shower because he has difficulty with balance and bending, and that she does all of the cooking because he can only stand for approximately 5 minutes. She related that she does all of the driving because he is unable to drive due to his bilateral knee pain, and that due to his hearing loss and tinnitus she has to clarify the speech for him whenever he is on the phone or trying to engage in conversation when there is background noise. The Board notes that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Accordingly, the issue of entitlement to SMC based on the need for A&A is inextricably intertwined with the claim for an increased rating for bilateral hearing loss, and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Arrange for a VA audiological examination of the Veteran (with audiometric studies) to ascertain the current severity of his bilateral hearing loss. The Veteran's record must be reviewed by the examiner in conjunction with the examination. In addition to reporting audiometry findings, the examiner should elicit from the Veteran an account of the impact his hearing loss has on daily activity functioning, and should comment regarding whether the account is consistent with the findings on audiometry, as well as on the impact the level of hearing impairment shown by audiometry would be expected to have on occupational functioning. The examiner must include rationale with all opinions. 2. Also arrange for an A&A examination of the Veteran. His entire record must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review the 38 C.F.R. §§ 3.350(b), 3.352(a) criteria for determining need for A&A. Any tests or studies indicated should be completed. The examiner should opine whether it is it at least as likely as not (a 50% or better probability) that the Veteran requires the regular A&A of another individual due to his service-connected disabilities alone. The criteria in the cited regulations should be addressed, in particular whether due to service-connected disabilities he is unable to dress or undress, keep himself ordinarily clean and presentable, needs frequent adjustment of special prosthetic or orthopedic appliances which cannot be done without aid, is unable to attend to the wants of nature; or has incapacity, physical or mental, which requires regular care or assistance for protection from hazards or dangers in the daily environment. The examiner must include rationale with all opinions, citing to supporting factual data as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.