Citation Nr: 21073838 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 10-34 870 DATE: December 10, 2021 ORDER Entitlement to a total disability rating based on unemployability (TDIU) prior to August 1, 2007 is denied. Entitlement to a TDIU from August 1, 2007 to July 20, 2009 is granted. Entitlement to special monthly compensation (SMC) based on regular need for aid and attendance or on account of being housebound, not including periods from December 10, 2007 to June 1, 2008 and from January 31, 2013 to April 1, 2013, is denied. FINDINGS OF FACT 1. Prior to August 1, 2007, the probative evidence of record demonstrates the Veteran was able to secure and maintain substantial gainful employment. 2. Since August 1, 2007, the probative evidence of record demonstrates the Veteran was unable to obtain gainful employment due to his service-connected disabilities. 3. For the periods other than December 10, 2007 to June 1, 2008 and from January 31, 2013 to April 1, 2013, the Veteran's service-connected disabilities alone did not render him in need of regular aid and attendance or confine him substantially to his home and immediate premises. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to August 1, 2007 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.1010, 4.3, 4.16. 2. The criteria for entitlement to a TDIU from August 1, 2007 to July 20, 2009 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.1010, 4.3, 4.16. 3. The criteria for entitlement to SMC based on regular need for aid and attendance or on account of being housebound, not including periods from December 10, 2007 to May 31, 2008 and from January 31, 2013 to April 1, 2013, have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy on active duty from July 1964 to September 1990. The issues come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the above claims in December 2015, June 2017, May 2018, and March 2021 for further development. The issues are again before the Board for appellate review. 1. Entitlement to a TDIU prior to August 1, 2007 2. Entitlement to a TDIU from August 1, 2007 to July 20, 2009 The Veteran contends that his service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. A total disability rating based on individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As an initial matter, the Veteran filed a claim for an increased disability rating for his service-connected shoulder condition in May 2007. In August 2007, the Veteran submitted a statement in support of his claim noting that he was unable to work or make a living. The Veteran continuously pursued his claim for a TDIU by submitting relevant private medical records prior to the expiration of the appeal period, "part and parcel" with the claim pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b); Rice, 22 Vet. App. at 453-54. In a September 2012 decision, the RO granted the Veteran's claim for TDIU effective July 20, 2009, noted as the date the Veteran met the schedular requirements for this benefit. As this represents the full grant in benefits, the Board will only consider the Veteran's claim for a TDIU prior to July 20, 2009. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2019, the Board granted an increased evaluation of 60 percent disabling for the Veteran's thoracolumbar spine disability, effective April 19, 2002. Accordingly, the Veteran meets the criteria for consideration of entitlement to TDIU on a schedular basis. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period on appeal prior to July 20, 2009, the Veteran has a 60 percent disability rating for degenerative joint disease of the thoracolumbar spine; a 30 percent rating for his service-connected PTSD; and a 20 percent rating for left shoulder disability. Therefore, the issue of entitlement to TDIU turns on whether the Veteran's service-connected disabilities barred him from securing and maintaining substantially gainful employment. The evidence of record shows that the Veteran graduated high school and completed some college level courses. The Veteran's January 2013 VA Vocational Rehabilitation and Employment (VR&E) program counseling-record noted the Veteran's job duties during active service were welding, pipefitting, firefighting, and company command instruction. The record reveals the Veteran worked after service as a forklift operator, truck driver, and part-time as a school bus driver and classroom monitor. Additionally, the record demonstrates the Veteran volunteered as a high school football coach and American Legion baseball coach. Resolving all reasonable doubt in favor of the Veteran, the record notes the Veteran's latest full-time employment ended in August 2007. The Veteran contends that he was unable to secure and maintain substantial employment due to his service-connected disabilities since that time. In October 2007, the Veteran underwent a VA examination to address his service-connected PTSD. The examination noted the Veteran was self employed as a truck driver. The Veteran noted that he worked as a truck driver since leaving the Navy so that he could work alone as much as possible. The VA examiner noted the Veteran's current PTSD diagnosis and stated that the Veteran had no significant cognitive problems and was able to interact with people well enough to work as a truck driver. The Veteran submitted a medical opinion from April 2008, written by the Veteran's private treating orthopedist. The private physician noted the Veteran underwent surgery in 2007 to address the Veteran's service-connected shoulder disability, and the Veteran was unable to return to his previous level of functional duty status and workload as a truck driver. The private orthopedist stated that the Veteran was medically disabled from his line of work as a truck driver. The private physician noted, however, that the Veteran was not completely disabled. The private doctor recommended that the Veteran should be considered for vocational rehabilitation for alternate employment, which could accommodate the Veteran to regular and occasional lifting of objects weighing five to ten pounds, with no overhead lifting or repetitive reaching. The Veteran underwent a VA examination in August 2009 to address his shoulder disability and degenerative joint disease of the thoracic spine. The VA examiner noted the Veteran's disabilities impaired the Veteran's ability to walk and stand. The Veteran noted an impairment in balance. The VA examination noted the Veteran could not lift heavy objects. The VA examination noted the Veteran's disabilities severely impacted the Veteran's occupation as a truck driver. The examination reported the Veteran could not perform the motions to steer his truck properly or sit or stand for any period of time needed to drive his truck. The record contains the Veteran's December 2010 private orthopedic treatment record. The Veteran's private physician noted the Veteran's December 2007 shoulder surgery and his ongoing limitations due to the impairment of his right arm. The treatment record noted the Veteran was not able to lift objects weighing ten pounds on any repetitive bases, or more than 20 pounds occasionally. The private treating orthopedist noted the Veteran's shoulder disability limited the Veteran's ability to hold his arm in an extended position, which incapacitated him for his previous activities as a truck driver. The private physician noted that the Veteran was still able to volunteer as a coach and perform duties as a substitute teacher, but the Veteran had not "returned to his industrial level position." Moreover, the private orthopedist stated that the Veteran was permanently disabled from his previous work capacity due to the substantive damage documented in the Veteran's December 2007 arthroscopic shoulder surgery. The record contains the Veteran's VR&E counseling assessment from January 2013. The VA employment counselor noted the Veteran had limited formal education. The counselor reported the Veteran could not return to any of his past employment due to his limitations. The counseling assessment reported the Veteran's service-connected disabilities and limitations placed the Veteran in a competitive disadvantage when competing for employment causing an impairment to his employability. The VR&E assessment noted that due to the Veteran's lack of training and education, the Veteran was not competitive with others who have marketable skills; and since the Veteran's service-connected disabilities would prevent him from his past work, the Veteran would require new skills training for suitable employment. The Board finds the evidence of record as a whole demonstrates the Veteran's service-connected disabilities prevented him from securing and maintaining substantial employment August 1, 2007 to July 20, 2009. The Veteran's VA and medical records revealed the Veteran's shoulder and spine disabilities barred the Veteran from performing physical occupational tasks for suitable positions. Additionally, the Veteran's VR&E counseling assessment, established the Veteran was physically unable to perform jobs for which he was qualified, and lacked the education and employment skills to secure and maintain substantial employment. The evidence of record reveals that, prior to August 1, 2007, the Veteran owned and operated his trucking business. Additionally, the Board acknowledges that evidence of record demonstrates the Veteran maintained part-time employment as a school bus driver and classroom monitor after he left his full-time job as a truck driver. As the Veteran worked in some capacity for the entire period on appeal, the Board must determine whether the Veteran had marginal employment due to his service-connected disabilities. As provided by 38 C.F.R. § 4.16(a), marginal employment is not considered substantially gainful employment. For purposes of TDIU, marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the poverty threshold established by the United States Department of Commerce, Bureau of the Census. Prior to August 1, 2007, the evidence demonstrates the Veteran's income earned from his full-time employment exceeded the poverty threshold established by the United States Department of Commerce, Bureau of the Census. Moreover, there is no evidence showing the Veteran was employed in a protected environment or sheltered workshop to support a determination of marginal employment on a facts-found basis. 38 C.F.R. § 4.16(a). Here, there is no evidence to suggest the Veteran's full-time employment was not substantially gainful prior to August 1, 2007, and an award for TDIU is not warranted. A review of the Veteran's employment history revealed that, from August 1, 2007 to July 20, 2009, the Veteran's part-time employment earned annual income did not exceed the poverty threshold for the years of 2007 to 2009. Thus, the Board establishes the Veteran's part-time employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a) Accordingly, the Board concludes that since August 1, 2007, the Veteran has been rendered unemployable due to his service-connected disabilities, and a grant of TDIU is warranted. 3. Entitlement to SMC based on regular need for aid and attendance or on account of being housebound, not including periods from December 10, 2007 to May 31, 2008 and from January 31, 2013 to April 1, 2013 VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011); AB, 6 Vet. App. at 38. The 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). Special monthly compensation at the aid and attendance rate is payable when a Veteran has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). A number of factors are to be accorded consideration in determining the need for regular aid and attendance, including: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b), 3.352(a). SMC at the rate provided under 38 U.S.C. § 1114(s) is payable when a veteran is permanently housebound by reason of service-connected disability. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 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. Id. The Veteran received SMC under 38 U.S.C. § 1114(s)(1) from December 10, 2007 to May 31, 2008 and from January 31, 2013 to April 1, 2013, upon receipt of temporary total disability ratings for convalescence following surgical procedures associated with the Veteran's left shoulder disability from December 1, 2007 to May 1, 2008 and from January 31, 2013 to March 31, 2013. See 38 C.F.R. § 4.30. The evidence shows that the Veteran's service-connected disabilities alone do not result in a need for regular aid and attendance. While the Board acknowledges the Veteran experiences severe impairment with activities of daily living due to his service-connected disabilities during the period on appeal, the evidence of record does not demonstrate the Veteran was bedridden, homebound, or in need of regular permanent aid and attendance. The evidence of record demonstrates the Veteran assisted with the care of his mother and father. Additionally, the evidence of record notes the Veteran helped with household chores. The Board acknowledges the Veteran's February 2016 VA treatment note, in which the Veteran's treating VA psychiatrist recommended the Veteran would benefit from a service dog for his service-connected PTSD. However, the Veteran's medical records do not indicate the recommended service dog would assist in activities of daily living. Although the Board notes the Veteran's service-connected disabilities presented severe impairment to the Veteran's mobility, here, the evidence of record shows that the Veteran was able to perform physical activities, including participation in a motorcycle club, as a baseball coach, and travel, throughout the period on appeal. Accordingly, the preponderance of the evidence weighs against entitlement to special monthly compensation due to the need for regular aid and attendance. See 38 C.F.R. § 3.352(a). The evidence also does not show that the Veteran was permanently bedridden or blind or with visual acuity of 5/200 or less in both eyes due to service-connected disabilities. Therefore, the criteria for SMC at the rate provided under 38 U.S.C. § 1114(l) are not satisfied. See 38 C.F.R. § 3.350(b). Further, the evidence of record does not show that the Veteran was substantially confined to his house and the immediate premises due solely to service-connected disabilities. See 38 C.F.R. § 3.350(i). The Veteran's April 2021 VA psychology note reported that the Veteran was able to leave home and travel to visit family and noted the Veteran was able to drive, although the Veteran stopped driving at night. Thus, as the criteria for SMC at the housebound rate under 38 U.S.C. § 1114(s) are not satisfied, the benefit-of-the-doubt rule does not apply, and entitlement to SMC due to the need for regular aid and attendance or housebound status is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SMC at the rate provided under 38 U.S.C. § 1114(s) is also compensable if a veteran has a single service-connected disability rated as 100 percent disabling, and 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. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Entitlement to a TDIU may serve as the "total" rating for the purposes of special monthly compensation under § 1114(s) rate if the TDIU is predicated upon a single disability. See Bradley, 22 Vet. App. at 293. However, TDIU based on multiple service-connected disabilities or disabilities that are considered as "one disability" under 38 C.F.R. § 4.16(a) (for example, disabilities affecting a single body system or common etiology) may not be used to establish "a service-connected disability rated as total" for SMC housebound eligibility pursuant to § 1114(s). See Youngblood v. Wilkie, 31 Vet. App. 412, 416-18 (2019). Compensation under § 1114(s)(1) is an ancillary benefit entitlement to which would be established as a matter of course if the above percentage requirements were satisfied. During the period on appeal excluding the Veteran's periods of temporary total disability ratings due to convalescence, the Veteran's disability ratings do not satisfy the percentage criteria. The Board's determination that the criteria for SMC are not satisfied at this juncture does not foreclose the award of SMC under 38 U.S.C. § 1114(s) if the criteria are eventually satisfied, and has no bearing on the effective date of such award, which is purely a matter of the effective date of the requisite percentages. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.