Citation Nr: A21019574 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 210920-186216 DATE: December 8, 2021 ORDER An initial 20 percent rating for service-connected right hip degenerative arthritis is granted. An initial compensable rating for limitation of extension of the right hip is denied. An initial compensable rating for limitation of flexion of the right hip is denied. From September 25, 2017, a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to education benefits under Chapter 35, Title 38 U.S.C., also known as the Dependents' Educational Assistance (DEA), is granted. Entitlement to special monthly compensation (SMC) on the basis of Aid and Attendance is denied. REMANDED Service connection for a low back disability, to include as secondary to service-connected total right knee arthroplasty and right hip degenerative arthritis. Entitlement to a TDIU prior to September 25, 2017. FINDINGS OF FACT 1. The Veteran's right hip degenerative arthritis manifests by limitation of abduction with motion lost beyond 10 degrees and limitation of adduction such as an inability to cross his legs. 2. The Veteran's right hip disability manifests as limitation of extension to 5 degrees or less. 3. The Veteran's right hip disability does not manifest as limitation of flexion of 45 degrees or less. 4. The Veteran's service-connected disabilities have precluded him from securing or following substantially gainful employment. 5. The Veteran has been found to have a permanent and total evaluation due to service-connected disabilities. 6. The Veteran does not require regular aid and attendance from another person to perform activities of daily living (ADLs). CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for service-connected right hip degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5253. 2. The criteria for an initial compensable rating for limitation of extension of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5251. 3. The criteria for an initial compensable rating for limitation of flexion of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5252. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 20.302. 5. The criteria for entitlement to DEA benefits under Chapter 35 have been met. 38 U.S.C. §§ 3500, 3501, 3510, 5113; 38 C.F.R. § 3.807. 6. The criteria for SMC based upon aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision of the Department of Veterans Affairs (VA). Following the April 2020 rating decision, the Veteran filed a notice of disagreement (NOD) requesting a Direct Lane Review by a Veterans' Law Judge pursuant to the Appeals Modernization Act (AMA). 38 C.F.R. §§ 3.2500(c)(1), 19.2(d). Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. With respect to the claim of service connection for a low back disability, while a December 2002 VA Form 21-526 (Application for Compensation and Pension) lists a lumbar spine disability, at that time the Veteran specifically sought pension and not compensation benefits. As such, the August 2018 claim for service connection for a low back disability is the initial claim seeking compensation benefits for such disability. In January 2020, the Veteran filed a claim for a TDIU. Nonetheless, evidence associated with the Veteran's claims file prior to the January 2020 TDIU claim reflects that the Veteran attributes his inability to work, in pertinent part, to his service-connected right hip disabilities. As such, the issue of the TDIU is part and parcel of the initial increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that the issue of SMC on the basis of aid and attendance has been raised by the record. To that effect, in a January 2020 affidavit, the Veteran indicated that he needs assistance with standing and requires the help of others with additional activities of daily living. A separate claim is not needed for this type of ancillary benefits when raised by the claimant or reasonably raised by the record as part of the underlying claim for benefits. Payne v. Wilkie, 31 Vet. App. 373, 381, 385-87 (2019). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F. 3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. An initial rating in excess of 10 percent for service-connected right hip degenerative arthritis. 2. An initial compensable rating for limitation of extension of the right hip. 3. An initial compensable rating for limitation of flexion of the right hip. Specific Legal Criteria The Veteran's right hip disabilities are evaluated under. 38 C.F.R. § 4.71a, DC 5251 for limitation of extension, under DC 5252 for limitation of flexion, and under DC 5253 for limitation of abduction and/or adduction. First, the Board notes VA revised the rating criteria for evaluating hip disorders, effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). However, the amendments specifically affected the rating criteria for DC 5254 (hip replacement), and DC 5255 (impairment of femur), which neither apply to the Veteran's right hip disabilities. Under DC 5251 for limitation of extension of the thigh, a maximum 10 percent rating is assigned for extension limited to five degrees. Under DC 5252, limitation of flexion of the thigh to 45 degrees is assigned a 10 percent rating. Flexion limited to 30 degrees is assigned a 20 percent rating. Flexion limited to 20 degrees is assigned a 30 percent rating. Flexion limited to 10 degrees is assigned the maximum 40 percent rating. Normally, extension is to zero degrees and flexion is to 125 degrees. 38 C.F.R. § 4.71, Plate II. Under DC 5253 is for impairment of the thigh. Limitation of rotation with the inability to toe-out more than 15 degrees on the affected leg warrants a 10 percent rating. A 10 percent rating is also assigned for limitation of adduction with the inability to cross legs. The maximum rating of 20 percent requires limitation of abduction with motion lost beyond 10 degrees. Normally, abduction is from zero degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Analysis In an October 2018 rating decision, the RO granted service connection for a right hip disability as secondary to service-connected right knee arthroplasty. The RO assigned separate ratings under 38 C.F.R. § 4.71a as follows: A 10 percent evaluation for right hip degenerative arthritis for limitation of adduction; a noncompensable rating for limitation of extension; and a noncompensable rating for limitation of flexion. The Veteran contends that higher ratings are warranted for the three awards listed above. He argues that the currently assigned ratings do not compensate for the severity of his disability. See January 2020 sworn affidavit; see also September 2021 Appellate Brief. The Board will address the issues separately for simplicity's sake. a. An initial rating in excess of 10 percent for right hip degenerative arthritis. VA treatment records reflect that the Veteran began reported right hip pain in May 2016. Radiographies revealed mild degenerative changes as evidence by periarticular sclerosis involving the acetabulum. See May 11, 2016 physical therapy progress notes. The Veteran was initially afforded a VA hip and thigh examination in connection with his service connection claim in April 2017. The Veteran denied flare-ups. He described his functional impairment as right hip pain which limits his standing, squatting and prolonged walking. The examination report reflects, in pertinent part, that his abduction was reduced to 30 degrees (normal being 0 to 45 degrees), and his adduction to degrees (normal being 0 to 25 degrees). The examiner further noted that his adduction is limited such that the Veteran cannot cross his legs. The report also shows objective evidence of pain in flexion, abduction, adduction, and external and internal rotation. The report also shows that the Veteran was not able to perform repetitive use testing as it was too painful to do. The examiner noted weakened movement due to muscle peripheral nerve injury, which interferes with standing. The report indicates that the Veteran right hip condition impacts his functionality as he is limited to stand for prolonged times, walk, or climb stairs. There was no ankylosis. The Veteran was afforded a subsequent VA examination in October 2018. This time the Veteran reported flare-ups which he described as dull pain on the right leg from his knee, up to the hip and back. The Veteran also indicated he cannot lift his right leg and drags it when walking. Motion testing revealed that his abduction was maintained at 30 degrees (normal being 0 to 45), and his adduction was reduced to 15 degrees (normal being 0 to 25 degrees). The examiner again noted that his adduction is limited such that the Veteran cannot cross his legs. The report also shows objective evidence of pain in flexion, extension, abduction, adduction, and external and internal rotation with objective evidence of moderately severe pain on the right groin area secondary to his right hip disability and which causes functional loss. The Veteran was able to perform repetitive use testing without additional loss of motion. While the Veteran was not examined immediately after repetitive use over time or during a flare up, the VA examiner was able to estimate his abduction to 30 degrees and adduction to 15 degrees for both scenarios, to include that his adduction remains limited such that the Veteran cannot cross his legs. There was no ankylosis. Most recently, the Veteran was afforded a third VA examination in connection with this claim in February 2020. The Veteran denied flare-ups and described his functional impairment as limited ability to stand, walk, and climbing stairs. Motion testing revealed his abduction reduced to 20 degrees (normal being 0 to 45), and his adduction at 20 degrees (normal being 0 to 25). Again, it was noted that his adduction is limited such that the Veteran cannot cross his legs. Testing continued to reveal objective evidence of pain in flexion, extension, abduction, adduction, and external and internal rotation. The Veteran was not able to perform repetitive use testing as his right hip pain limits his ability to perform repetitive movements. The Board determines, for purposes of this particular issue, that the Veteran's right hip degenerative arthritis warrants an initial 20 percent disability rating as it has manifested by limitation of abduction with motion lost beyond 10 degrees. In that regard, the April 2017 and October 2018 VA examinations indisputably show that the Veteran's abduction was reduced by 15 degrees, and the most recent February 2020 VA examination shows that his abduction was reduced by 25 degrees. The foregoing is sufficient evidence to determine that for the entire appeal period his lost motion on abduction has been beyond 10 degrees. See DC 5253. The Board also notes that the Veteran's adduction is limited such that the Veteran cannot cross his legs. In fact, the Veteran has been in receipt of a 10 percent rating on such basis pursuant to DC 5253. See October 2018 rating decision. The Veteran's representative attorney argues that both his limitations of abduction and adduction must be rated separately. In essence, the Veteran's attorney contends that a 10 percent rating for his limitation on adduction, and a separate 20 percent rating for motion lost beyond 10 degrees on abduction are warranted. See September 2021 Appellate Brief. First, the Board notes that all disabilities, including those arising from a single disease entity, are to be rated separately, unless doing so would compensate the Veteran twice for the same symptoms. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); see 38 C.F.R. § 4.25 (b). One exception provided for this is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. It is the veteran's overall disability that is relevant, not the name of the causative disorder or disorders. Here, the question turns as to whether the Veteran's limitation of abduction and adduction under DC 5253 should be rated separately. The Board finds that the Veteran's right hip disability manifests, in pertinent part, by limitation of abduction and adduction as noted above. In other words, here, the same manifestation to be avoided under 38 C.F.R. § 4.14 is the limitation of motion for which the Veteran is herein granted a 20 percent rating for the entire appeal period as the Board finds that his disability picture more nearly approximates the criteria for the higher rating. See 38 C.F.R. § 4.7. For the reasons set forth above, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that a maximum 20 percent rating is warranted for the Veteran's right hip degenerative arthritis, which manifests by limitation of adduction such as not being able to cross his legs, and limitation of abduction with motion lost beyond 10 degrees. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. b. An initial compensable rating for limitation of extension due to right hip degenerative arthritis. During his April 2017 initial VA examination, the VA examiner indicated that the Veteran's extension was reduced to 25 degrees (normal being 0 to 30 degrees). The report shows objective evidence of pain in extension with objective evidence of pain on all motions. The report also shows that the Veteran was not able to perform repetitive use testing as it was too painful to do. The examiner noted weakened movement due to muscle peripheral nerve injury, which interferes with standing. The report indicates that the Veteran right hip condition impacts his functionality as he is limited to stand for prolonged times, walk, or climb stairs. The Veteran was afforded a second VA examination in October 2018. The examiner indicated that his right hip extension was reduced to 20 degrees (normal being 0 to 30 degrees). The Veteran also indicated he cannot lift his right leg and drags it when walking. The report also shows objective evidence of pain in extension with objective evidence of moderately severe pain on the right groin area secondary to his right hip disability and which causes functional loss. The Veteran was able to perform repetitive use testing without additional loss of motion. While the Veteran was not examined immediately after repetitive use over time or during a flare up, the VA examiner was able to estimate his extension to 20 degrees for both scenarios. The examiner acknowledged disturbance of locomotion and interference with sitting and standing. The Veteran was most recently afforded a VA examination in February 2020. The Veteran denied flare-ups and described his functional impairment as limited ability to stand, walk, and climbing stairs. Motion testing revealed his extension remained at 20 degrees (normal being 0 to 30 degrees). The report shows objective evidence of pain in extension. The Veteran was not able to perform repetitive use testing as he indicated that his right hip pain limits his ability to perform repetitive movements. VA treatment records corresponding to the period on appeal does not show that range of motion has been tested, besides the VA examinations referenced above. The medical evidence of record, which includes three VA examination reports, indicate that the Veteran's extension of the right hip has never been less than 20 degrees throughout the appeal period. The Board determines that an initial compensable rating for the Veteran's right hip disability, on the basis of limitation of extension, is not warranted during the appeal period. While there is evidence of pain and functional limitation, there is no limitation of extension to 5 degrees or less as required for a higher rating per DC 5251. The Board has further considered the Veteran's lay reports of symptoms of functional loss due to pain, disturbance with locomotion, and interference with prolonged sitting and standing. See October 2018 VA examination report. However, the 20 percent increased rating under DC 5253 for his right hip disability fully contemplates all functional loss, including during flare-ups of pain, weakness, fatigability, lack of endurance, or incoordination in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. In sum, the Board finds an initial compensable rating for limitation of extension of a right hip disability is not warranted. The preponderance of the evidence is against an increased rating and the benefit of the doubt is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. c. An initial compensable rating for limitation of flexion due to right hip degenerative arthritis. During his April 2017 initial VA hip and thigh examination, the VA examiner indicated that the Veteran's flexion was reduced to 115 degrees (normal being 0 to 125 degrees). The report shows objective evidence of pain in flexion with objective evidence of pain on all motions. The Veteran was not able to perform repetitive use testing as it was too painful to do. The examiner noted weakened movement due to muscle peripheral nerve injury, which interferes with standing. The report indicates that the Veteran right hip condition impacts his functionality as he is limited to stand for prolonged times, walk, or climb stairs. The Veteran was afforded a second VA examination in October 2018. The examiner indicated that his right hip flexion was reduced to 80 degrees (normal being 0 to 125 degrees). The Veteran also indicated he cannot lift his right leg and drags it when walking. The report also shows objective evidence of pain in flexion with objective evidence of moderately severe pain on the right groin area secondary to his right hip disability and which causes functional loss. The Veteran was able to perform repetitive use testing without additional loss of motion. While the Veteran was not examined immediately after repetitive use over time or during a flare up, the VA examiner was able to estimate his flexion to 80 degrees for both scenarios. The examiner acknowledged disturbance of locomotion and interference with sitting and standing. The Veteran was most recently afforded a VA examination in February 2020. The Veteran denied flare-ups and described his functional impairment as limited ability to stand, walk, and climbing stairs. Motion testing revealed his flexion to 85 degrees (normal being 0 to 125 degrees). The report shows objective evidence of pain in flexion. The Veteran was not able to perform repetitive use testing as he indicated that his right hip pain limits his ability to perform repetitive movements. Similarly, VA treatment records corresponding to the period on appeal does not show that range of motion has been tested, besides the VA examinations referenced above. The medical evidence of record, which includes three VA examination reports showed that the Veteran's flexion of the right hip is not limited to less than 80 degrees at any time throughout the appeal period. The Board determines that an initial compensable rating for the Veteran's right hip disability, on the basis of limitation of extension, is not warranted. While there is evidence of pain and functional limitation, there is no limitation of flexion of 45 degrees or less as required for a higher rating per DC 5252. The Board has further considered the Veteran's lay reports of symptoms of functional loss due to pain, disturbance with locomotion, and interference with prolonged sitting and standing. See October 2018 VA examination report. Again, the 20 percent increased rating under DC 5253 for his right hip disability fully contemplates all functional loss, including during flare-ups of pain, weakness, fatigability, lack of endurance, or incoordination in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. In sum, the Board finds an initial compensable rating for limitation of flexion of a right hip disability is not warranted. The preponderance of the evidence is against an increased rating and the benefit of the doubt is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 4. Entitlement to a TDIU. Legal Criteria In TDIU claims, a total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training. Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). For purposes of this decision, the Board uses the term "sedentary" to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). Analysis As previously noted, the issue of a TDIU stems from the Veteran's initial claim for increase for right hip disabilities, which in turn stems from a March 10, 2017 claim for service connection. See Rice v. Shinseki, 22 Vet. App. 447. During the pendency of the appeal, the Veteran and his representative attorney have contended that the complications and effects resulting from the Veteran's right hip disabilities, right lower extremity varicose veins, and right knee total arthroplasty preclude him from maintaining substantially gainful employment. See January 2020 TDIU claim and sworn affidavit; see also April 2020 Appellate Brief. Initially, the Board notes that a combined 70 percent rating is in effect since September 25, 2017, with at least one disability rated at 40 percent. Thus, from that date, the Veteran is service connected for residuals of right knee contusion, meniscus tear and total arthroplasty rated at 60 percent; right lower extremity varicose veins rated at 10 percent; right lower degenerative arthritis now rated at 20 percent; and noncompensable ratings for a right knee scar, right knee limitation of extension and flexion respectively. Accordingly, the criteria for a TDIU on a schedular basis is met but only from September 25, 2017. See 38 C.F.R. § 4.16a. In a January 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability), the Veteran listed his service-connected right knee disability, right hip conditions, and right lower extremity varicose veins as conditions preventing him from securing or following any substantial gainful employment. The Veteran reported that he was employed as a mail room clerk and that he last worked full-time in January 2000, as he became too disabled to work. The Veteran further noted that he tried to pursue one year of college education following high school. He did not pursue any additional education or training prior to became too disabled to work. In a January 2020 sworn affidavit, the Veteran indicated that is right knee disability interferes with his standing as he can only stand for 2 to 3 minutes, for a maximum of 5 minutes at times, and can only sit for 10 to 15 minutes before he is in too much pain and have to get up. He further noted that his muscle weakness during standing position makes him stagger and stumble, that his right leg gives out on him all the time, and that he is need of a rotator walker [sic] and a cane to ambulate. In his March 2020 Appellate Brief, the Veteran's attorney reiterated that the combined effect of the Veteran's service-connected disabilities renders the Veteran unable to work and that the record contains sufficient evidence in support of a TDIU, to include that the Veteran has a combined 70 percent rating, which in turn meets the schedular criteria. First, the Board notes that a TDIU requires evidence that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The Board has reviewed the evidence of record and finds that the Veteran's service-connected right knee disability and right hip disabilities and associated symptoms, in addition to his right lower extremity varicose veins have precluded him from securing or following substantially gainful employment from September 25, 2017. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). (In adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history). With respect to the effect of the Veteran right knee disability over his employability, during an April 2014 VA examination, the VA examiner indicated that his right knee condition prevents the Veteran from performing heavy or light physical work, though he can perform sedentary work with reasonable accommodations. The report shows that at the time, the Veteran required a cane and a brace for ambulation in connection with his right knee disability. During a subsequent July 2015 VA examination, the VA examiner described the Veteran's functional impact as limited prolonged walking and standing due to right knee pain. The examiner noted that the Veteran retired in 2000 from an administrative position (mail room clerk) at an insurance company and made reference to his limited prolonged walking and standing due to right knee pain. The Veteran was afforded another VA examination in connection with his right knee in October 2018. Per the Veteran's report, the examiner noted that his disability impacts his ambulation, ascending and descending stairs, kneeling, crawling, bending, rising from a seated position, squatting, and lifting and that the condition has gotten worse. The examiner described the functional impact as intolerance with walking, bending, lifting, kneeling, crawling, and squatting. In a most recent February 2020 VA examination, the VA examiner indicated that the Veteran can only walk slowly for one block using a cane, can only stand for five minutes, and has knee pain with walking up and down stairs or walking for more than a few minutes. With respect to his right lower extremity varicose veins, a June 2016 VA examination shows that the vascular conditions impact his ability to work by limiting his tolerance of prolonged standing and walking. As to his right hip disabilities, an April 2017 VA examination shows that his disability results in weakened movement due to muscle or peripheral nerve injury which directly interferes with his standing. In sum, the examiner noted that the Veteran is limited to prolonged standing, walking, and climbing stairs. A subsequent VA right hip examination was afforded in October 2018. The examiner noted that the Veteran has intolerance with bending which impact his ability to lift, wash his lower extremities and groom himself. The examiner indicated that his disability causes disturbance of locomotion, interference with sitting, standing, lifting, bending, squatting, and grooming himself from the waist down. A most recent February 2020 VA examination shows that the Veteran is limited in his ability to stand and walking up and down stairs. The examiner noted that the Veteran retired as a mailroom employee in 2001 and that he can only walk slowly for one block using a cane, can stand for five minutes, and that he experiences right hip pain with walking up and down stairs or walking for more than a few minutes. Private treatment records from Novacare Rehabilitation shows that the Veteran has difficulty walking; decreased positional tolerance; trouble with transitional activities; limited ambulatory capacity; and interrupted sleep patterns which are likely related, in pertinent part, to objective findings significant right knee loss of motion and impaired gait pattern. See November 21, 2017 progress notes. The Board notes that the Veteran has been in receipt of disability insurance benefits (SSDI) from the Social Security Administration (SSA) since December 2000. In January 2020, the RO attempted to obtain the Veteran's SSA records. However, in a February 2020 reply from the SSA National Records Center, it was informed that the records are no longer available as they have been destroyed. Here, while the record does not show the Veteran's work history following service, or prior to 1991, it shows that the Veteran's last work history and experience from 1991 appears to be limited to employment as a mail room clerk for an insurance company, which suggests a sedentary job (i.e., to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment). See Withers, 30 Vet. App. 147. There is no other indication in the record that the Veteran has any experience in, or the potential for, any other non-physical job. The record further reflects that the Veteran service-connected right lower extremity's symptoms continued to progress and interfere with his ambulation, ascending and descending stairs, kneeling, crawling, bending, rising from a seated position, squatting, and lifting as noted by the October 2018 VA examiner. The foregoing is supported by the February 2020 VA examiner who indicated that his right knee and right hip disabilities render him unable to walk with a cane more than one block (slowly) and cannot stand for longer than 5 minutes. While the April 2014 VA examiner noted that the Veteran is capable of performing sedentary type employment with reasonable accommodations, the July 2015 VA examiner acknowledged that the Veteran in fact retired in 2000 from an administrative position (mail room clerk) at an insurance company, to include due to his limited prolonged walking and standing associated with his right knee disability. The Board notes that the Veteran's inability to walk for longer than one block with assistance of a cane, and his inability to stand for longer than five minutes, and much less bend, lift, kneel, crawl, or squat, all in light of his education and work history, is against an indication that he could work in an unskilled or semi-skilled sedentary position that allows him to train on-the-job, while adapting his limitations to the position, including with reasonable accommodations. See Ray, 31 Vet. App. 73; see also Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). In conclusion, the Board notes that the overall impact of the Veteran's service-connected disabilities could reasonably result in poor focus and poor task completion in any type of work environment. The Board finds that the April 2014, July 2015, October 2018, and February 2020 VA examinations and opinions as to the effect of his service-connected right lower extremity disabilities on his employment, when considered as a whole, are sufficient and probative to determine that their aggregate effect render him unable to work. In sum, the issue of employability is not a medical issue but a legal one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, and after consideration of the Veteran's individual circumstances, to include his education, training, and work history, the Board finds that the evidence has reached a level of equipoise to support the Veteran's eligibility for a TDIU on a schedular basis from September 25, 2017, as provided in 38 C.F.R. § 4.16; see also Ray, 31 Vet. App. 73. The severity of the Veteran's right hip disabilities, right knee disability, and right lower extremity varicose veins preclude him from securing or following a substantially gainful occupation. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, from September 25, 2017, a TDIU is warranted. The Board will address the issue of a TDIU prior to September 25, 2017 in the remand portion of this decision. 5. DEA benefits. Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. The Veteran contends that entitlement to DEA benefits under Chapter 35 is warranted. As the Board has determined that the Veteran is warranted a permanent and total evaluation on the basis of a TDIU, entitlement to DEA benefits is warranted as well. Accordingly, DEA benefits are granted. 6. SMC on the Basis of Aid and Attendance. Legal Criteria SMC based on the need for aid and attendance of another 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, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). As directed by 38 C.F.R. § 3.352 (a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. "Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. §§ 3.350 (b)(4), 3.352(a). It is not required that all of the disabling conditions enumerated in this paragraph 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 or her 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 be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present"). Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (c). Analysis As previously noted, in a January 2020 sworn affidavit in connection with his increase rating claim for his right hip disabilities, the Veteran indicated that he needs assistance with activities of daily living (ADLs) he could not perform on his own. As such, the issue of entitlement to SMC essentially arises from the initial claim for increase for right hip disabilities. See Payne, 31 Vet. App. at 373. In this case, the Board finds that SMC at the aid and attendance rate is not warranted. In his January 2020 sworn affidavit, the Veteran specifically indicated that his right knee and right hip hurt constantly and bothers him to the point that sometimes he is unable to even stand to brush his teeth. He further indicated that he has trouble getting on his feet from a seated position and when he does stand up, it takes him a few minutes to balance, feels weak and stumbled. The Veteran further noted that he requires a shower chair to bathe himself but needs help getting in and out the shower. He further noted that there are rails installed all around his apartment; however, has fallen on several occasions. The Veteran further noted that he has trouble drying himself after shower as he cannot move very well and that he cannot bend to put on his socks and shoes. The Veteran endorsed fear of falling. In sum, he indicated that symptoms associated with his right leg, knee, and hip are so extreme that he cannot take care of himself anymore and needs someone to be there to help him. Notwithstanding the above, VA treatment records for the appeal period in question reflect that during an April 2018 primary care functional assessment, the Veteran stated he does not require assistance with bathing, dressing, goes to the toilet room, cleans himself, and arrange clothes without assistance, moves in and out of bed without assistance, and feeds himself without assistance. The Veteran reported some occasional accidents regarding continence. With respect to instrumental activities of daily living, the Veteran acknowledge ability to look up numbers and dial-receive-make calls without help, able to drive own car or travel alone in a bus or a taxi, is able to take care of his shopping with transportation provided, and is able to take his medications, to include the right dose at the right time. The Veteran however, stated that while he is able to prepare light foods and do some housework, he needs help with full meals and heavy tasks at home. See April 4, 2018 progress notes. Thereafter, in June 2018, the Veteran applied for VA Homemaker and Home Health Aide Care (VA HHA) benefits by reason of non-service-connected disabilities. The Veteran specifically indicated that due to his nonservice-connected heart disorder, he blacked out. As a result, an Implantable Cardioverter Defibrillator (ICD) was placed that caused him difficulty using his left arm, which in turn interfered with performing ADLs on his own. See June 13, 2018 progress notes. Thereafter, in September 2019, during a subsequent functional assessment the Veteran denied needing assistance with bathing, dressing, toileting, transferring, feeding, or continence. As to instrumental ADLs, the Veteran denied requiring aid or assistance with telephone matters, traveling, shopping, preparing meals, medications, or money. While the Veteran stated that he could prepare light foods and is able do some housework, he reiterated his inability to cook full meals or do heavy housework. See September 12, 219 progress notes. In November 2019, the Veteran began receiving VA-HHA benefits for the reasons noted during his initial June 2018 request. See November 8, 2019 progress notes. The Board notes that the evidence of record at the time of the September 2020 rating decision does not support an award of SMC on the basis of aid and attendance. While the Veteran's service-connected disabilities, collectively, have resulted in severe limitations on his functionality and ambulation, the competent medical evidence of record fails to demonstrate that he is unable to dress himself or to keep himself ordinarily clean and presentable; the he is unable to feed himself through the loss of coordination of the upper extremities or through extreme weakness; that he is unable to attend to the wants of nature; or that his physical incapacity requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. As noted by the VA medical evidence discussed above, besides the complications due to his nonservice-connected heart disability that warranted him VA HHA benefits, the Veteran has been able to perform most of his instrumental ADLs without the need or assistance from another person. Besides the Veteran's self-statements, there is no indication in the record that at least one of the enumerated factors to warrant an award of SMC on the basis of regular aid and attendance is present. See 38 C.F.R. § 3.352 (a); see also Turco, 9 Vet. App. 224. In sum, the Veteran acknowledgement that he is able to leave his home independently, independently manage his medications, and bathe, dress, and feed himself cannot serve as the basis for finding that one is in regular need of aid and attendance by another person. While the Veteran has expressed difficulty wearing his socks and shoes as he cannot bend without potentially falling down, there is no indication that he has indeed been restricted from bathing, dressing, or feeding himself, attend the wants of nature, or protecting himself from the dangers of his daily environment. Thus, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 C.F.R. §§ 3.102. Accordingly, SMC on the basis of the need for regular aid and attendance of another person is not warranted. REASONS FOR REMAND 1. Service connection for a low back disability, to include as secondary to service-connected total right knee arthroplasty and right hip degenerative arthritis. The Veteran contends that service connection for a low back disability is warranted as it is either proximately due to, or aggravated by, his service-connected right lower extremity disabilities. See August 2018 attorney's statement; see also April 2020 Appellate Brief. The Veteran alternatively contends that low back pain symptoms began during his time in the military. See October 2018 VA examination report. The Veteran has been afforded VA examinations in connection with this claim in October 2018 and February 2020. The Board notes that while the opinions seem adequate with respect to the direct nexus theory and causation prong of secondary service connection, both VA examiners failed to address the aggravation prong of secondary service connection, another type of relationship. The aggravation prong of secondary service connection requires a worsening of the claimed disorder, not a permanent worsening, and an increase will be shown by an additional impairment of earning capacity above the degree of the nonservice-connected disability existing before the increase (baseline level) that results from the service-connected disability. See 38 C.F.R. § 3.310. In his April 2020 Brief, the Veteran's attorney argued that the disturbance of locomotion stemming from the Veteran's right knee and right hip disabilities have aggravated his back disability. Review of the medical evidence of record seems the suggest that the Veteran's low back disability manifests on the right side. See November 14, 2017 progress notes from NovaCare Rehabilitation. The Veteran's attorney argues, and the Board agrees, that VA's failed to address the aggravation prong of secondary service connection. Failure to address that theory of entitlement constitutes a pre-decisional duty to assist error under AMA. For the reasons set forth above, a remand is warranted for a VA examination and opinion by a qualified medical professional to assess this aspect of the claim. 2. A TDIU prior to September 25, 2017. As previously noted, the Veteran has been unemployed since 2000-2001, when he had to restored from his 9-year employment as a mail room clerk by reason of his service-connected right lower extremity disabilities and associated symptoms. The Board notes that while the awards of service connection for right knee arthroplasty, right hip degenerative arthritis with limitation of flexion and extension, and right lower extremity varicose veins have been in effect since at least March 10, 2017 (date of claim from which the TDIU claim stem from), prior to September 25, 2017, the Veteran did not meet the required criteria for a TDIU on a schedular basis. A such, consideration of whether an extraschedular TDIU is warranted prior to September 25, 2017, must be made pursuant to 38 C.F.R. § 4.16(b). While the Board does not have the authority to assign an extraschedular TDIU in the first instance, it can decide whether a claim should be referred to the Director, Compensation Service. See Wages v. McDonald, 27 Vet. App. 233 (2015); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As previously discussed, during an April 2014 VA examination, the VA examiner indicated that his right knee condition prevents the Veteran from performing heavy or light physical work and that the Veteran required a cane and a brace for ambulation in connection with his right knee disability. Thereafter, a subsequent July 2015 VA examiner described the Veteran's functional impact as limited prolonged walking and standing due to right knee pain. The examiner noted that the Veteran retired in 2000 from an administrative position (mail room clerk) at an insurance company and made reference to his limited prolonged walking and standing due to right knee pain. The Veteran underwent a right knee total arthroplasty in January 2016. During a November 2017 rehabilitation assessment, the Veteran's private provider noted that while the Veteran could climb slower and sit independently without difficulty, he had been experiencing difficulties as he could only stand for one to two minutes, had significant difficulty with sit to stand transfer and could only walk five ten minutes depending on the day. In sum, the provider found evident that there was difficulty walking, decreased positional tolerance, trouble with transitional activities, limited ambulatory capacity all likely related, in pertinent part, to objective findings of significant right knee loss of motion and impaired gait pattern. See November 21, 2017 progress notes. For the reasons set forth above, the Board finds that the claim should be submitted to the Director, Compensation Service, for extraschedular consideration for a TDIU for the period prior to September 25, 2017. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a qualified medical professional with respect to his claim of secondary service connection for a low back disability. The examiner should first identify any low back condition(s). The examiner is then asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified low back condition was caused, or otherwise aggravated by the service-connected right knee disability, to include a total right knee arthroplasty, and service-connected right hip disabilities. Aggravation is an increase in disability beyond the natural progress of the condition or temporary flare-up. Consideration should be given to private treatment records from NovaCare Rehabilitation indicating the Veteran's complains of back pain concentrated on his right side, and the Veteran's statements that his right lower extremity disabilities impact his ambulation as he has disturbance of locomotion. A complete rationale should be expressed for any opinions provided. 2. Thereafter, refer the issue of a TDIU prior to September 25, 2017, to the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b) and in compliance with the Reasons for Remand set forth above. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.