Citation Nr: 21076466 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 12-35 672 DATE: December 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 21, 2009 is denied. Entitlement to a TDIU from July 21, 2009 through October 31, 2009 is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound prior to November 1, 2009 is denied. REMANDED Entitlement to a TDIU from November 1, 2009 is remanded. Entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound from November 1, 2009 is remanded. FINDINGS OF FACT 1. The evidence reflects that prior to July 21, 2009 the Veteran was engaged in substantially gainful employment, and therefore not unable to engage in substantially gainful employment due to his service-connected disabilities. 2. The evidence reflects that from July 21, 2009 through October 31, 2009 the Veteran was still engaged in substantially gainful employment, and therefore not unable to engage in substantially gainful employment due to his service-connected disabilities. 3. Prior to November 1, 2009 the Veteran was not blind, was not bedridden, and his service-connected depression, lumbosacral strain, diabetes mellitus, right and left upper and lower extremity peripheral neuropathy, headaches, spondylosis of the cervical spine, prostatitis, and cirrhosis of the liver did not render him unable to care for most of his daily personal needs or to protect himself from the hazards and dangers incident to his daily environment. The Veteran did not have a service-connected disability rated at 100 percent, the Veteran was gainfully employed, and his service-connected disabilities were not shown to be of such a nature as to have confined him to his home. CONCLUSIONS OF LAW 1. The criteria for a TDIU prior to July 21, 2009 have not been met. 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16. 2. The criteria for a TDIU from July 21, 2009 through October 31, 2009 have not been met. 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16. 3. Prior to November 1, 2009 the criteria for establishing entitlement to SMC based on the need for regular aid and attendance or at the housebound rate are not met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1967 to June 1969. He died in July 2015. The appellant is his surviving spouse. She has been substituted as the claimant in this matter. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision. In February 2013, August 2014, July 2015, and September 2018 the Board remanded the matter of a TDIU for additional development. A November 2020 Board decision denied entitlement to TDIU prior to July 21, 2009 and dismissed as moot the claim for TDIU since July 21, 2009. A September 2021 United States Court of Appeals for Veterans Claims (Court) joint motion for remand (JMR) vacated and remanded the November 2020 Board decision. The matter of SMC has been raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that SMC" benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). TDIU An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. §4.16. A TDIU is warranted when 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). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1Vet. App.356 (1991). The central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5Vet. App.524, 529 (1993). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to impairment owing to non-service-connected disabilities. See 38 C.F.R. §§3.341, 4.16, 4.19. In a May 2008 VA Form 21-8940 the Veteran stated he was employed by the United States Postal Service (USPS) from December 1969 until November 2007. He reported that his service-connected disabilities were getting worse. In a June 2009 private opinion, the clinician noted that physical limitations due to disability had affected the Veteran emotionally. The clinician noted the Veteran's back problems prevented him from tolerating prolonged sitting and standing positions. In a September 2009 VA Form 21-8940 the Veteran stated he was last employed full time by the USPS on July 17, 2009. He reported his year of highest wages earned was 2008. The Veteran indicated he wanted to continue working but was offered retirement and accepted it. He reported working for USPS from November 1969 to July 2009. In an August 2011 VA Form 21-8940 the Veteran stated he was last employed full time by the USPS in October 2009. He reported his year earnings occurred in 2008. He indicated his disability began to affect full time employment on October 31, 2009. In a September 2011 peripheral nerves examination, the clinician opined that the Veteran's neuropathy did not preclude him from employment but noted some decrease in manual dexterity. The clinician noted the Veteran was working full time until 2009 for the USPS and could perform sedentary kind of jobs. In an October 2012 liver conditions examination, the clinician opined that the Veteran's liver condition did not impact his ability to work. In an April 2013 medical examination, the clinician opined that the Veteran's cervical, lumbar and peripheral nerve conditions did not preclude the Veteran from obtaining and securing a financially rewarding job noting that the Veteran maintained a functional capacity compatible with sedentary type work with carrying, lifting, and back twisting restrictions. 1. Entitlement to a TDIU prior to July 21, 2009. In September 2007, the RO received the Veteran's claims for service connection for several disabilities and for an increased rating for lumbosacral spine strain. At that time, the Veteran had the following service-connected disabilities: lumbosacral strain, rated as 10 percent disabling; diabetes, rated as 20 percent disabling; degenerative disease of the cervical spine, rated as 20 percent disabling; peripheral neuropathy of right and left upper and lower extremities, each rated as 10 percent disabling each; prostatitis, rated as 10 percent disabling; and headaches, rated as noncompensable. The combined rating was 60 percent. Effective May 23, 2008, the RO granted service connection for major depressive disorder with anxiety and panic disorder, rated as 50 percent disabling and raising the combined rating to 80 percent. Therefore, from May 23, 2008, and prior to July 21, 2009 the Veteran met the schedular criteria for TDIU. See 38 C.F.R. § 4.16 (a). Additionally, the record reflects that the Veteran was engaged in substantially gainful employment until retirement in October 2009. The Board has reviewed the original May 2008 VA Form 21-8940 which indicated the Veteran was last employed in 2007 by the U.S. Postal Service (USPS). The Veteran cited his 60 percent combined rating and attributed his inability to work to all his service-connected disabilities. He reported completion of two years college education. The parties to the JMR call attention to VA outpatient records of a suicide attempt in November 2007 with other relevant notations in April and July 2008. I November 2007, the Veteran reported a family history of suicide and but no attempts or gestures but ideations and a plan for himself. There was some suggestion of a previous attempt to overdose with medication. He was admitted to a VA hospital for treatment and diagnosed with depression. After treatment, he was discharged to home in January 2008 with denials of any continuing thoughts or plans. His attending clinicians continued to monitor his status but no longer noted any thoughts or plans. The Veteran was not service-connected for a mental health disorder until May 2008. However, a review of the entire evidence of record establishes that the Veteran was employed by USPS until October 2009 and had even reported a highest earning year as 2008. This suggests that the Veteran returned to work after his hospitalization that ended in January 2008. Additionally, there is nothing to suggest that the employment was considered marginal, or that it was considered a protected environment. Accordingly, there is no basis upon which to grant a TDIU as the evidence establishes that the Veteran had been gainfully employed prior to July 21, 2009. See Faust v. West, 13 Vet. App. 342, 356 (2000). In summary, although the Veteran did meet the schedular criteria for TDIU starting in May 2008 and prior to July 21, 2009, the record did not show or suggest that the Veteran's service-connected disabilities rendered him unemployable (as demonstrated by the records indicated the Veteran did not retire from full time employment with USPS until October 2009). Accordingly, the Board finds that the preponderance of the evidence is against this claim, and entitlement to a TDIU prior to July 21, 2009 is not warranted. 2. Entitlement to a TDIU from July 21, 2009 through October 31, 2009. Initially, the Board notes that from July 21, 2009 the Veteran had a combined 100 percent schedular rating for his service-connected disabilities. The Board notes that the receipt of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). However, as noted above, the record reflects that the Veteran was engaged in substantially gainful employment until his retirement on October 31, 2009. As noted above, there is nothing to suggest that the employment was considered marginal, or that it was considered a protected environment. Accordingly, there is no basis upon which to grant a TDIU as the evidence establishes that the Veteran had been gainfully employed from July 21, 2009 through October 31, 2009. See Faust v. West, 13 Vet. App. 342, 356 (2000). In summary, although the Veteran had a combined 100 percent schedular rating beginning July 21, 2009, the record did not show or suggest that the Veteran's service-connected disabilities rendered him unemployable during this time period (as demonstrated by the records indicated the Veteran did not retire from full time employment with USPS until October 31, 2009). Accordingly, the Board finds that the preponderance of the evidence is against this claim, and entitlement to a TDIU from July 21, 2009 through October 31, 2009 is not warranted. 3. Entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound prior to November 1, 2009. SMC at the housebound rate is payable to a Veteran who has a single service-connected disability rated 100 percent disabling and either (a) has an additional service-connected disability, or disabilities, independently rated 60 percent, which (i) is/are separate and distinct from the service-connected disability rated 100 percent and (ii) involve(s) different anatomical or bodily symptoms; or (b) is permanently housebound by reason of a service-connected disability or disabilities. The latter requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises as a direct result of service-connected disabilities, and it is reasonably certain that the disabilities will continue throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The record shows that the Veteran does not have a single service-connected disability rated at 100 percent. Moreover, the above decision denies TDIU prior to November 1, 2009 as the record reflects that he was gainfully employed until October 31, 2009. Accordingly, entitlement to SMC at the housebound rate must be denied for lack of legal entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426. SMC at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or so helpless as to need regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the 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 of the claimant 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 the claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, requires that the claimant remain in bed. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The personal functions that the claimant is unable to perform should be considered in connection with his condition. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352 (a). Prior to November 1, 2009 the Veteran was service connected for depression at 50 percent, lumbosacral strain (10 percent until July 21, 2009 then 20 percent from that date), peripheral neuropathy of the right and left upper extremities (each at 10 percent until February 5, 2009 then 30 percent from that date), headaches (10 percent until June 30, 2009 then 30 percent from that date), diabetes mellitus at 20 percent, degenerative spondylosis at 20 percent, chronic prostatitis at 10 percent, and peripheral neuropathy of the left and right lower extremities each at 10 percent. The evidence does not show or suggest that prior to November 1, 2009 the Veteran was blind or had loss of use both feet or of a hand and a foot due to service-connected disability. Therefore, this matter turns on whether prior to November 1, 2009 he was bedridden or required aid and attendance due solely to his service-connected disabilities. As noted above, prior to November 1, 2009 the Veteran was employed full time at the USPS and retired from full time employment on October 31, 2009. The overall evidence prior to November 1, 2009 reflects that, considering the limitations due to his service-connected disabilities prior to November 1, 2009, the Veteran could tend to most activities of daily living and could function in his environment. While the Veteran was shown to have some functional limitations due to his service-connected disabilities prior to November 1, 2009, such functional limitations did not amount to requiring regular aid and attendance. Accordingly, the preponderance of the evidence is against the claim of entitlement to SMC based on the need for regular aid attendance or based on housebound criteria, prior to November 1, 2009, and the appeal in the matter must be denied. REASONS FOR REMAND 1. Entitlement to a TDIU from November 1, 2009 As noted above when addressing TDIU, in September 2011 and April 2013 examinations, the clinicians found that the Veteran's neuropathy, cervical, and lumbar spine disabilities did not preclude him from participating in sedentary employment. The September 2011 examiner noted that the Veteran retired because of an injury to his shoulder, a non-service-connected disorder. Each of these opinions did not consider the June 2009 private opinion which found the Veteran was precluded from prolonged sitting or standing due to his back problems. Notably the record does not contain a medical opinion as to whether the Veteran's depression alone caused the Veteran to be unemployable after his retirement in October 2009. See September 2021 CAVC JMR pg. 2. Additionally, an opinion which considers the total effects of the Veteran's various service-connected disabilities on the Veteran's ability to maintain substantially gainful employment was not provided. Accordingly, a medical opinion which considers the impact of the Veteran's service-connected depression alone, as well as the impact the Veteran's service-connected disabilities together had on his employability from November 2009 until his death in 2015 is necessary. 2. Entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound from November 1, 2009 Initially, the Board notes that when granted, a TDIU satisfies the total (100 percent) rating requirement if the TDIU was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to SMC for a housebound rate under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). See Bradley v. Peake, 22 Vet. App. 280 (2008). Here, analysis of the claim of SMC from November 1, 2009 is directly dependent on the development of the above issue of entitlement to TDIU from November 1, 2009. This matter is therefore inextricably intertwined with the claim of entitlement to TDIU from November 1, 2009. See Smith (Daniel) v. Gober, 236 F. 3d 1370, 1373 (Fed, Cir, 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, consideration of the appeal in this matter is deferred pending development of the claim of TDIU from November 1, 2009. The matters are REMANDED for the following action: 1. Arrange for the record to be forwarded to an appropriate clinician to address the claim of TDIU from the Veteran's retirement in October 2009. Upon review of the record, the clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected depression rendered him unable to obtain substantially gainful employment from November 2009 (the time of his retirement) until his death in 2015? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the cumulative effect of his various service-connected disabilities rendered the Veteran unable to obtain substantially gainful employment from November 2009 (the time of his retirement) until his death in 2015? The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Upon review of the record, and considering the determinations made on the issue of TDIU remanded, readjudicate the claim for SMC based on the need for regular aid and attendance or by reason of housebound from November 1, 2009. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.