Citation Nr: 21076418 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 12-20 815A DATE: December 23, 2021 ORDER A rating in excess of 20 percent for right shoulder impingement is denied. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 5, 2020 is denied. From July 1, 2020, entitlement to a TDIU due solely to service-connected major depressive disorder (MDD) is ¬¬¬¬granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right (major) shoulder impingement did not manifest as motion of the major arm limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees), ankylosis, or impairment of the humerus. 2. The evidence does not demonstrate that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment for the period on appeal prior to March 5, 2020. 3. From July 1, 2020, the evidence of record demonstrates that the Veteran was unable to secure or follow substantially gainful employment solely due to his service-connected major depressive disorder (MDD). CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a right clavicle fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59. 4.71a, Diagnostic Codes 5003-5201. 2. The criteria for a TDIU have not been met for the period on appeal prior to March 5, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19, 4.25. 3. From July 1, 2020, the criteria for a TDIU based on one disability have been met. 38 U.S.C. § 1114(s); Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the United States Marine Corps from November 1998 to February 2003. This appeal comes before the Board of Veterans' Appeals (Board) from May 2010 and March 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2010 rating decision, the RO continued a 10 percent rating for the Veteran's service-connected right shoulder impingement. VA received the Veteran's notice of disagreement (NOD) in August 2010. In the March 2011 rating decision, the RO denied entitlement to TDIU. The Veteran's NOD was received in March 2011. The RO issued the statement of the case (SOC) in June 2012, and the Veteran's VA Form 9, substantive appeal, was received in August 2012. The Veteran requested a hearing before the Board at a local VA office in his August 2012 VA Form 9; however, the hearing request was subsequently withdrawn in a September 2015 written statement from the Veteran. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). In August 2017, April 2019, and October 2020, the Board remanded the case to the RO for further development and adjudicative action. During the pendency of the appeal, the RO issued a rating decision in July 2018 granting an increased rating for the service-connected right shoulder impingement to 20 percent, effective from December 21, 2009. In September 2021, via phone, the Veteran indicated that he no longer wanted to pursue his claim and asked that all pending VA examinations be canceled. See September 2021 VA Form 27-0820 Report of General Information. In September 2021, VA sent correspondence to the Veteran indicating how to withdraw his appeals and notifying him a withdrawal must be done in writing. At the present time no communication has been associated with the Veteran's file indicating an intention to withdraw the Veteran's claims, as such the claims are still before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Saunders v. Wilkie, Apr 3, 2018, 886 F. 3d 1356 (Fed. Cir. 2018). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, the regulations governing disability ratings for musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, although not all of the diagnostic criteria were affected. Any changes to the criteria that are applicable to the claims on appeal are indicated below 1. Entitlement to a rating in excess of 20 percent for right shoulder impingement. The RO has rated the Veteran's right shoulder impingement under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Id. The Board observes that in the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. In this case, the hyphenated diagnostic code indicates degenerative arthritis rated under Diagnostic Code 5003 is the service-connected disorder and that the symptoms of degenerative arthritis are rated under Diagnostic Code 5201, which evaluates limitation of motion of the arm. Since ratings in excess of 20 percent are not available under Diagnostic Code 5003, analysis under this rating criteria is not relevant and will not be discussed further. The rating criteria pertaining to Diagnostic Code 5201 was revised effective February 7, 2021. Prior to the regulatory change, Diagnostic Code 5201 provides the following criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level (flexion and/or abduction limited to 90 degrees). 38 C.F.R. § 4.71a. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when its motion is limited to 25 degrees from the side. Id. As of February 7, 2021, under the amended criteria, Diagnostic Code 5201 provides criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level. 38 C.F.R. § 4.71a. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level. Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when flexion and/or abduction is limited to 25 degrees from the side. Id. For VA compensation purposes, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. Discussion Initially, the Board notes that VA examinations to evaluate the Veteran's service-connected right shoulder impingement were scheduled for January 2021, April 2021, and June 2021 but the Veteran did not report for these examinations. See LHI appointments list dated in August 2021. In September 2021 correspondence, the Veteran requested that all pending VA examinations be canceled, with only a nuanced indication as to why. See September 2021 VA Form 27-0820 Report of General Information. Applicants for benefits, such as the Veteran, are obligated to cooperate and assist VA in developing evidence. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). When entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, action shall be taken in accordance with 38 C.F.R. § 3.655. When the examination was scheduled in connection with a claim for increase, the regulation states that the claim shall be denied. 38 C.F.R. § 3.655(b). Nevertheless, the Board proceeds with adjudication of this increased rating claim based upon the existing evidence of record and additional VA examinations are not in order. In April 2010, the Veteran underwent a VA right shoulder examination. The Veteran reported experiencing pain, stiffness and weakness affecting his right shoulder but no deformity, giving way, instability, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, or effusion. The clinician noted that the Veteran was right-handed. The Veteran denied flare-ups. The VA clinician indicated that there were no limitations on standing or walking due to the right shoulder disability and that the Veteran did not use any assistive devices. The examiner found no evidence of recurrent shoulder dislocation or inflammatory arthritis but did find that there was guarding of movement. The Veteran had flexion to 160 degrees; abduction to 145 degrees; external rotation to 80 degrees; and internal rotation to 80 degrees. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions in ranges of motion. There was no evidence of joint ankylosis. Active range of motion testing revealed that pain on flexion began at 145 degrees. The clinician stated that the Veteran's right shoulder impingement would have significant effects on his usual occupation as a Department of Defense (DOD) civil service employee as he would have problems with lifting and carrying, difficulty reaching, and pain. The clinician further noted that the Veteran's right shoulder would have anywhere from moderate to no effect on his various daily life activities. The Veteran underwent another VA right shoulder examination in February 2011. The Veteran reported "horrible morning pain" in his right shoulder. He stated that he cannot lay on his right shoulder due to the pain and uses a body pillow. He reported experiencing burning sensations and constant pain when he raises his arm above shoulder level. He stated that his shoulder pain is worse with cold weather. The Veteran stated that he had been more absent from work due to his right shoulder pain. He reported taking Tylenol and ibuprofen approximately 3 times a week (which proved effective in alleviating pain). He reported dizziness due to these medications and reported using a small shoulder brace at work which he described as "fairly effective." The clinician noted that the Veteran was right-handed. The Veteran denied flare-ups. The VA clinician indicated that there were no limitations on standing or walking due to the right shoulder disability. The examiner found no evidence of recurrent shoulder dislocation or inflammatory arthritis but did find that there was tenderness and guarding of movement. The clinician noted that the Veteran used a shoulder brace occasionally. The Veteran had flexion to 160 degrees with pain beginning at 0 degrees; abduction to 110 degrees with pain beginning at 100 degrees; external rotation to 80 degrees with pain beginning at 0 degrees; and internal rotation to 90 degrees with no pain. There was no additional limitation of motion after repetitive use. There was no evidence of joint ankylosis. The clinician stated that the Veteran's right shoulder impingement would have significant effects on his usual occupation of data entry as he would have decreased concentration, problems with lifting and carrying, decreased strength, and upper extremity pain. The Veteran reported losing 231 hours from work in the past 12 months due to both his right shoulder and migraine disabilities. He reported working part time for the past one-to-two years. The clinician further noted that the Veteran's service-connected disabilities would have a severe effect on his usual daily activities and would prevent the Veteran from engaging in sports activities. The Veteran underwent another VA right shoulder examination in December 2015. The VA examiner provided diagnoses of right shoulder degenerative arthritis and residuals of cortical irregularity of the surgical neck of the right humerus. The Veteran reported receiving all of his care for his right shoulder from the VA. He stated that he takes pain pills as needed, has not had any further right shoulder injury and has never had or been required to undergo right shoulder surgery. He reported daily right shoulder pain which makes it difficult to play with his children, decorate the Christmas tree, and perform any activity above his head. He denied flare-ups. The Veteran had flexion to 150 degrees; abduction to 110 degrees; external rotation to 70 degrees; and internal rotation to 90 degrees. The clinician indicated that the Veteran's endorsement of pain appeared out of proportion when compared to objective examination findings. The clinician noted that, although the Veteran held his right upper extremity close to his body, he uses his phone with his right hand and moved his entire right upper extremity with ease in the waiting area and as he came down the hallway to the examination room. Thus, the examiner found that the Veteran displayed poor effort during the examination. And the clinician opined that range of motion itself did not contribute to functional loss; there was no pain upon examination or with weight bearing; there was no objective evidence of localized tenderness or pain on palpation; and there was no objective evidence of crepitus. The clinician stated that the Veteran was not able to perform repetitive use testing with at least three repetitions and was not examined after repetitive use over time because he refused further testing. The clinician found the examination medically inconsistent with the Veteran's statements regarding functional loss with repetitive use over time. Muscle strength testing was normal. There was no muscle atrophy and no joint ankylosis. Hawkin's impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis test were all negative. There was no right shoulder instability, or dislocation or labral pathology suspected. There were neither clavicle, scapula, AC nor a sternoclavicular joint condition suspected. There was no loss of flail shoulder, nonunion, or fibrous union of the humerus. The Veteran did not use any assistive devices. The Veteran underwent a VA examination for his right shoulder disability in February 2020. The Veteran reported his pain is characterized as constant and aching. The Veteran reported functional limitations due to pain in his right shoulder. The Veteran did not endorse flare-ups. The VA clinician noted the Veteran had abnormal range of motion and reported flexion to 80 degrees, abduction to 60 degrees, internal rotation to 80 degrees, and external rotation to 70 degrees. The VA clinician estimated the range of motion following repeated usage over time to be 75 degrees flexion, 55 degrees abduction, 75 degrees internal rotation, and 65 degrees external rotation. The clinician noted that the Veteran had pain that causes functional loss and during the examination, the Veteran exhibited pain during testing of flexion, abduction, external rotation, and internal rotation. While the Veteran had a prior history of recurrent right shoulder dislocation, it has since resolved. Here, the clinician underscored that follow-up imaging in 2004, 2009, and 2016 did not show that the Veteran had further evidence of shoulder dislocation. The Veteran reported functional limitations regarding pulling, pushing, lifting more than one-to-two pounds, and lifting his right arm above his head. Additionally, a review of VA treatment records dated during the appeal period shows ongoing reports and treatment for right shoulder pain, including at least two injections. In fact, while a December 2009 VA treatment record documented pain on movement of the right shoulder, this assessment was not documented in terms of degrees of motion for either flexion or abduction. Nevertheless, review of these records does not disclose clinical findings or worsening symptoms of the Veteran's right shoulder disability to warrant a higher rating than the currently assigned 20 percent evaluation. The Board acknowledges that an April 2020 VA treatment record reflects that the Veteran reported radicular symptoms of numbness, tingling in the right arm, and mild weakness that the VA physician associated with his right shoulder disability. The VA physician also noted that the Veteran has "pretty severely limited" range of motion of the right shoulder upon extension, abduction, internal, and external rotation. However, previous reports of numbness and radicular symptoms affecting the right upper extremity have been attributed to the Veteran's cervicalgia and not his right shoulder impingement. See VA treatment records dated in October 2010 and January 2017. And, as articulated above, while the RO scheduled VA examinations to assess the current nature and severity of the Veteran's right shoulder impingement, including whether it manifested in any radicular symptoms, the Veteran did appear for the examinations and requested that they be canceled. The Veteran contends that his right shoulder impingement is more severe than that contemplated by a 20 percent rating. The Veteran is competent to report discernable symptoms, such as pain and numbness. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Board assigns a measure of probative weight to the Veteran's lay contention. However, the evidence of record fails to disclose that the Veteran has the medical training or orthopedic expertise to assess the severity of a complex orthopedic disability. As such, the Veteran's lay contentions do not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board finds that the symptomatology, as discussed above, more nearly approximates the currently assigned 20 percent disability rating during the appeal period. In fact, while the Veteran reported pain and difficulty performing activities of daily living due to his right shoulder disability, his range of motion, at worst, was to 55 degrees abduction, which is contemplated in the currently assigned 20 percent disability rating. To meet the criteria for next-higher 30 percent rating criteria for the major side, there would need to be a showing of motion limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). 38 C.F.R. § 4.71a, Diagnostic Code 5201. Such is not disclosed. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Saunders v. Wilkie, Apr 3, 2018, 886 F. 3d 1356 (Fed. Cir. 2018). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). After a review of the evidence discussed above, the Board finds that the functional equivalent of motion limited to midway between side and shoulder level has not been shown at any time during the appeal period. Such findings are not evinced, even when considering the Veteran's reported symptomatology for the service-connected right shoulder disability, including limited motion, at worst, to 55 degrees abduction due to pain after repeated use over time (as in the 2020 VA examination report. The Veteran's reported symptomatology does not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 20 for the service-connected right shoulder disability at any time during the appeal under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and the holdings in DeLuca and Saunders. Diagnostic Code 5200 provides ratings higher than 20 for ankylosis of the major arm. See 38 C.F.R. § 4.71a. Ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable. Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint"). Review of the evidentiary record in this case does not indicate the service-connected right shoulder impingement was manifested by or demonstrated the functional equivalent of ankylosis to warrant a rating in excess of 20 percent at any time during the appeal period. Diagnostic Code 5202 also provides ratings higher than 20 percent for impairment of the humerus for the major arm under both the old and new criteria. See 38 C.F.R. § 4.71a. Review of the evidentiary record in this case does not indicate the service-connected right shoulder impingement was manifested by or demonstrated the functional equivalent of impairment of the humerus to warrant a rating in excess of 20 percent at any time during the appeal period. Lastly, the Board has considered other potentially applicable Diagnostic Codes to warrant a rating higher than the currently assigned 20 percent evaluation, as discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In this case, the evidence does not reflect that there are any other musculoskeletal disorders or muscle injuries of the shoulder that the Veteran's right shoulder impingement is more properly rated under another Diagnostic Code. Accordingly, a higher rating under alternate Diagnostic Codes is not warranted. Consequently, the Board finds that a rating in excess of 20 percent for the Veteran's service-connected right shoulder impingement is not warranted at any point during the period on appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. Entitlement to a TDIU prior to March 5, 2020. The Veteran contends that his service-connected disabilities prevent him from securing or following any substantial gainful employment. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. §§ 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Disabilities which are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Discussion The Veteran is in receipt of service connection for major depressive disorder (MDD) rated at 70 percent for the period on appeal prior to March 5, 2020; migraine headaches rated at 50 percent for the entire period on appeal; and right shoulder impingement rated at 20 percent disabling for the entire period on appeal. Therefore, the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration to entitlement to a TDIU prior to March 5, 2020. The next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. For the reasons set forth below, the Board finds that the evidence of record does not substantiate that the Veteran was unemployable by reason of his service-connected disabilities alone. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). The evidence of record indicates that the Veteran was either gainfully employed full-time or in school and working part-time, throughout a majority of the period on appeal prior to March 5, 2020, including from at least February 2019 to March 5, 2020. The Veteran has also provided inconsistent responses regarding his employment history and on several occasions was diagnosed with likely malingering due to significantly elevated responses on the SIMS test as well as subjective complaints during examination being out of proportion to objective findings on examination. See February 2011 and December 2015 VA examinations. A December 2009 letter from the Veteran's employer indicated that the Veteran missed approximately one week of work each month from September 2008 to October 2009 due to migraines. The employer also stated that the Veteran had periodically been put on light duty because of his right shoulder. In January 2011, the Veteran reported being gainfully employed as an aircraft mechanic from August 2005 to January 22, 2010. See January 2011 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran reported that his service-connected disabilities caused him to lose employment and that he had become too disabled to work. He stated that he suffers from migraines, anxiety and a right shoulder disability which make it difficult to perform everyday tasks, including normal job duties. The Veteran stated that he had an associate degree in information technology. He reported several attempts to obtain employment in aircraft maintenance and information technology since becoming too disabled to work. However, during an April 2010 VA psychiatric examination, the Veteran reported that he could not continue his civil service job because it conflicted with school and spending time with his daughter. During a February 2011 VA psychiatric examination, the Veteran reported that he was currently going to school for a career in computer information technology and was working part-time. See VA treatment notes dated in April 2010, November 2010 and January 2011. In a September 2015 VA treatment note, a clinician indicated that the Veteran reported that he was recently fired from his job as a quality inspector for an insulation company which he had held for three months. He stated that he was terminated due to missing work. He also reported that he worked as a civil service employee from 2008 to 2012 but was unable to maintain employment due to missing work. During a December 2015 VA examination, the Veteran reported that he had been working for Boeing taking care of logbooks until a month ago when he was let go for not keeping required hours as a full-time employee. The Veteran attributed this to his frequent migraines. He also reported that he was attending an online university pursuing a bachelor's degree in information technology. The Veteran submitted a VA Form 28-1902 Rehabilitation Needs Inventory in February 2021, wherein he reported gainful full-time employment as a telecom supervisor from February 2019 to August 2019 and gainful full-time employment maintaining aircraft logbooks and records from August 2019 to July 2020. The Veteran reported leaving his job as a telecom supervisor due to not having required certification for a new contract and stated that he was terminated from his most recent employment due to absences. Notably, the Veteran stated that he believed it would be possible for him to return to work in a former occupation or for a former employer. Several VA examiners provided opinions as to the Veteran's service-connected disabilities' functional impact on his ability to work. Regarding MDD, in April 2010, a VA psychologist indicated that the Veteran reported experiencing mild depression at least every other day and mild anxiety every day. The Veteran reported chronic sleep impairment and a history of passive suicidal ideation. The Veteran's memory was assessed as normal, and the VA psychologist found that the Veteran had no problems with activities of daily living. The psychologist stated that the Veteran's psychiatric symptoms are not severe enough to interfere with occupational and social functioning. During a February 2011 VA examination, the Veteran reported worsening psychiatric symptoms. He stated that he was not receiving mental health treatment because he was required to undergo a drug screen. He denied any alcohol or drug use. He reported doing activities with his family such as eating out at restaurants and playing putt-putt golf. The Veteran's recent memory was moderately impaired due to difficulty concentrating on task. He reported sleeping only 2 hours a night and experiencing daily panic attacks of moderate severity. As noted above, the VA psychologist diagnosed the Veteran with likely malingering due to significantly elevated responses on the SIMS test. The psychologist found that the degree of impairment in social and occupational functioning could not be stated as the examination yielded unreliable/inconsistent results based on a structured assessment used to detect malingering. Nevertheless, the psychologist stated that the Veteran's service-connected psychiatric disorder should not preclude employment. In a December 2015 VA psychiatric examination report. A psychologist indicated that the Veteran's MDD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The psychologist stated that while the Veteran reported that his migraines were the main cause of his missed work time, his avoidant personality may also be contributing to his unreliability in keeping a work schedule. Regarding service-connected migraines, a January 2008 VA neurological clinician indicated that the Veteran reported missing two-to-three days of work a month due to his migraines. The clinician noted that the Veteran reported worsening migraine symptoms and must take medications at least once a week to relieve his migraine headaches. In April 2010, a VA clinician indicated that the Veteran's migraine headaches have significant effects on his usual occupation due to decreased concentration and pain and have resulted in him being assigned different duties and increased absenteeism. In February 2011, a VA clinician reported that the Veteran endorsed almost daily prostrating migraine attacks. This clinician found that the Veteran experienced decreased concentration and mobility, problems with lifting and carrying, weakness, fatigue and pain due to his service-connected disabilities. The clinician concluded that the Veteran's service-connected migraine should not preclude employment. Regarding the service-connected right shoulder impingement, VA examiners and treating physicians have indicated that the Veteran's right shoulder would have anywhere from no effect to a severe effect on his usual daily activities. Cf., April 2010 VA examination with February 2011 VA examination. However, the February 2011 VA report that indicated a severe effect on daily activities appears inconsistent with the other evidence of record, including the Veteran's lay statements and his occupational history, which indicates a lesser degree of impairment. During the December 2015 VA right shoulder examination, the Veteran reported daily right shoulder pain which makes it difficult to play with his children, decorate the Christmas tree, and perform any activity above his head. However, the December 2015 VA examiner suspected malingering and determined that the Veteran showed poor effort during the examination. During the February 2020 VA right shoulder examination, the Veteran reported functional limitations regarding pulling, pushing, lifting more than 1-2 pounds, and lifting the right arm above the head. Notably, no competent VA clinician or other competent medical provider has made the determination that the Veteran's service-connected disabilities would preclude all forms of obtaining and sustaining gainful employment during the period under consideration. In accordance with the Court's holding in Ray, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. Ray, 31 Vet. App. 58. Collectively, the Board finds that this combination of education and work experiences are more than sufficient for the Veteran to obtain and maintain substantial employment considering his specific education and specific work experiences, to include supervisory work. See Withers v. Wilkie, 30 Vet. App. 139 (2018). In October 2019 and October 2020, the RO sent a letter to the Veteran and asked him to complete an updated formal application for a TDIU and to report his education and employment history and earnings. A copy of the appropriate form (VA Form 21-8940) was included with the letter. The Veteran failed to respond to the letter and has not submitted a completed VA Form 21-8940 since 2011. The failure to complete an updated VA Form 21-8940 deprives the Board of information as to the Veteran's full employment history, educational history and training, and income information necessary to properly address a claim for TDIU. Here, the Veteran did not respond to a request for relevant information regarding his full employment and education history. Although the Board can piece together some of his employment information from various treatment records and other evidence found in the claims file, the Veteran has not provided VA with specific information regarding his employment, education, and training since January 2011 except for a vocational rehabilitation form indicating that he was gainfully employed from February 2019 to July 2020. The Board recognizes that the Veteran's service-connected disabilities present challenges. However, they do not preclude occupations performed in an office setting where there is an opportunity for breaks to gain composure and limitations on physical activities. The Veteran has skills that could be employed in diverse settings which rely upon expertise in computer skills. His physical limitations do not rise to the level of rendering the Veteran totally impaired occupationally. Many employers offer reasonable accommodations pursuant to the Americans with Disabilities Act as amended (ADAAA), to allow for downtime due to disabilities. In the Veteran's case, it would be quite feasible for an employer to provide breaks in quiet settings where the Veteran could rest during periods/bouts of symptoms associated with his service-connected disabilities. The evidence of record prior to March 5, 2020 fails to reveal that exceptional circumstances exist which warrant consideration under 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, the grant of a TDIU prior to March 5, 2020 is denied. Entitlement to TDIU from March 5, 2020. While the Veteran is in receipt of a 100 percent schedular rating for MDD from March 5, 2020 onward, the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). See id. Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to SMC under 38 U.S.C. § 1114(s) is established whenever a Veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC). The Veteran underwent a VA examination for his MDD in August 2020. During the examination, the Veteran reported that he forgets people's names and struggles to talk to others. He reported that he cannot hold a job and is not a good husband. He stated that he showers infrequently and rarely changes clothes. The psychologist found that the Veteran displayed symptoms such as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, persistent delusions or hallucinations and neglect of personal appearance and hygiene. Based upon this vast inventory of psycho-social symptoms, the psychologist opined that the Veteran presented with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Based on the foregoing, the overall evidence of record indicates that the Veteran has been unable to maintain gainful employment due solely to his service-connected MDD since July 1, 2020. Specifically, the Veteran's depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, persistent delusions or hallucinations and neglect of personal appearance and hygiene make it extremely difficult for him to maintain substantially gainful employment. Notably, the Veteran reported being gainfully employed full time from July 2020. See February 2021 VA Form 28-1902 Rehabilitation Needs Inventory. Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience by his service-connected MDD from July 1, 2020. Resolving all reasonable doubt in favor of the Veteran, entitlement to TDIU based solely on service-connected MDD is warranted from July 1, 2020. Enhanced SMC While the Veteran is in receipt of special monthly compensation (SMC) under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) from March 5, 2020, the Board has also considered whether the Veteran is entitled to additional special monthly compensation as a result of the grant of TDIU based solely on service-connected MDD from July 1, 2020. Under 38 U.S.C. § 1114(1), SMC 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(1); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid attendance of another person. 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration 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. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found 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. It is only necessary that the evidence 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 § 3.352(a) must be present for a grant of SMC based on need for aid and attendance). 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 the 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). (Continued on the next page) Here, the Veteran does not contend, and the evidence does not suggest, that he is bedridden due to service-connected disabilities. While the Veteran has reported that he is no longer able to work, VA treatment records show that he nevertheless reported working in some capacity and was able to attend VA appointments and ambulate independently without the use of assistive devices. Cf., VA treatment records dated in April 2021, May 2021, and October 2021. As such, entitlement to SMC based on Aid and Attendance is not warranted and is therefore denied. B. J. KOMINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victor Modesto 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.