Citation Nr: 21005761 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-32 507 DATE: February 2, 2021 ORDER An evaluation greater than 10 percent for residuals of a head concussion (traumatic brain injury (TBI)) is denied. An increased evaluation for a right nephrectomy due to trauma (kidney disorder), greater than 30 percent prior to June 23, 2010, and greater than 60 percent from June 23, 2010, is denied. An evaluation greater than 30 percent for migraines associated with residuals of a head concussion is denied. A total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. A special monthly compensation based on the need for aid and attendance or housebound status is denied. FINDINGS OF FACT 1. The Veteran’s TBI manifested in mild loss of memory, attention, concentration, or executive functions but without objective evidence on testing. There was evidence of normal judgment; routinely appropriate social interaction; always being oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; subjective symptoms not interfering with work, instrumental activities of daily living, or close relationships; neurobehavioral effects not interfering with workplace or social interaction; and ability to communicate by spoken and written language. 2. Prior to June 23, 2010, the Veteran’s right nephrectomy due to trauma (kidney disorder) did not cause nephritis, infection, or pathology of the other. 3. From June 23, 2010, the Veteran’s right nephrectomy due to trauma (kidney disorder) did not manifest in persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 4. The Veteran’s migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 5. The Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. 6. The evidence does not demonstrate that the Veteran was housebound or in need of aid and attendance as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for residuals of a head concussion (traumatic brain injury (TBI)) have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.16, 4.124a, Diagnostic Code 8045. 2. The criteria for an increased evaluation for a right nephrectomy due to trauma (kidney disorder), greater than 30 percent prior to June 23, 2010, and greater than 60 percent from June 23, 2010, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7500. 3. The criteria for a disability rating in excess of 30 percent for migraines associated with residuals of a head concussion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 5. The criteria for a grant of special monthly pension based on aid and attendance or housebound status is denied. 38 U.S.C. §§ 1502, 1521, 5107(b); 38 C.F.R. §§ 3.102, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1964 to May 1967. The Veteran died in March 2017. The appellant is the Veteran’s surviving spouse and has been substituted for the Veteran. These issues were previously before the Board. In November 2019, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to (1) obtain all outstanding VA Medical Center treatment records on and after December 1, 2012, VA vocational rehabilitation file, and to document non-existence or unavailability of such records; (2) obtain private medical records and to document efforts to obtain such records; (3) obtain VA medical opinion on the Veteran’s right nephrectomy due to trauma prior to his death; (4) obtain VA medical opinion on the Veteran’s TBI prior to his death; (5) obtain VA medical opinion on the Veteran’s migraine headaches prior to his death; (6) obtain VA medical opinion to ascertain the Veteran’s functional impairment due to the Veteran’s service-connected disabilities; and (7) obtain VA medical opinion to determine entitlement to SMC based on the need for aid and attendance. The Veteran’s VA Medical Center treatment records from January 2009 to April 2015 were added in January 2020. The Veteran’s VA rehabilitation file was destroyed although records show that the Veteran was in the program in 1991 and that the file was closed in 1993 as the Veteran did not “pursue services.” The appellant was notified of the November 2019 Board decision and asked to identify relevant private medical records in January 2020. In February 2020, the appellant stated that the providers discussed in the prior Board decision were VA doctors. In March 2020, the AOJ obtained VA medical opinions for the Veteran’s TBI, and in April 2020, VA medical opinions for the Veteran’s nephroma and TDIU were obtained. A VA medical opinion for the Veteran’s migraines was obtained in May 2020. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in October 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 1. An evaluation greater than 10 percent for residuals of a head concussion (traumatic brain injury (TBI)) The appellant contended that the Veteran was entitled to an evaluation greater than 10 percent for TBI. Specifically, the appellant contends that the symptoms of advanced dementia cannot be differentiated from the symptoms of TBI. The Veteran is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045, Residuals of traumatic brain injury (TBI). 38 C.F.R. § 4.124a, Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. Cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified, “which contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total, “since any level of impaired consciousness would be totally disabling. If no facet is evaluated as “total,” a percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. A 100 percent rating is assigned if “total” is the level of evaluation for one or more facets. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table, which provides that subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships are associated with a Level 0 impairment. Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships are associated with a Level 1impairment. Examples of findings that might be seen at this level of impairment are the following: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships are associated with a Level 2 impairment. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, and headaches requiring rest periods during most days. See 38 C.F.R. § 4.124 a. Under Code 8045, any residual of traumatic brain injury with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache, is to be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Factual Background On July 6, 2009, the Veteran stated that his TBI worsened since it was last evaluated and that it prevented him from maintaining gainful employment. Prior to the claim, the Veteran had been examined on May 1, 2009. The examiner found that the Veteran’s cognitive-intellectual level of functioning was estimated to be within the Average range based upon his education and occupational history, with scores ranging from Borderline to Average. In the area of attention processes, the Veteran’s Working Memory Index score was within the Borderline Impairment range, Processing Speed Index score was within the Low Average range, and Color Trails was within the Impairment Range. The Veteran’s language skills were within the Average range. In memory and learning, the Veteran’s logical memory subtest score was within the Low Average range and his visual memory was in the Average range. The Veteran’s executive functions fell with the Average range suggesting that his basic logical thinking was reasonably intact. Overall, the examiner found that there was “cogent evidence to suggest a considerable decline in his premorbid level of functioning” but that the Veteran had the cognitive capacity to function safely and in a relatively independent manner with decision making regarding personal affairs and managing daily activities of living. In a September 2009 VA examination, the Veteran reported that his disabilities affected some usual daily activities. Specifically, his ability to do chores, exercise, participate in recreation, and travel were affected moderately. He also reported that his disabilities severely affected his ability to participate in sports and mildly affected his ability to shop. In an October 2009 rating decision, the Veteran’s service connected TBI was increased to 10 percent effective July 6, 2009. The AOJ assigned a severity level of “1” for the Memory, attention, concentration, and executive functions facet, as a level of “2” was not warranted without objective evidence on testing resulting in mild functional impairment. Severity levels of “0” were assigned for the Judgment facet, Social interaction facet, Orientation facet, Motor activity facet, Visual spatial orientation facet, Subjective symptoms facet, Neurobehavioral effects facet, and Communication facet as there was no evidence warranting the assignment of level “1” in any of the above facets. The Veteran submitted a Notice of Disagreement (NOD) in April 2010. In May 2011, the Veteran had a stroke and was confused and unable to speak. The Veteran’s spouse reported a focal convulsion in September 2011. A VA Medical Center neuropsychologist noted that the Veteran’s most recent MRI showed widespread cerebral ischemia involving the left middle cerebral artery and left posterior cerebral artery distributions. The Veteran was unable to name even common personal care items such as a comb or a toothbrush and phonemic cuing did not significantly improve his responses. The Veteran was afforded a VA examination on October 13, 2011. The Veteran reported problems with headaches, memory, ambulation, carrying out functions and “just not feeling right since falling off of truck while in the military in 1979.” Objective evidence on testing showed moderate functional impairment in memory, attention, concentration and executive functions; moderately severely impaired judgment; frequently inappropriate social interaction; occasional disorientation to two of the four aspects; moderately severely impaired visual spatial orientation; moderately decreased motor activity due to apraxia; one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others; inability to communicate either by spoken language, written language, or both at least half of the time but not all of the time; and normal consciousness. The examiner found, however, that the Veteran had normal or near normal recovery from his service connected TBI based on his education and employment after discharge, and that his current symptoms were most likely from several strokes. In June 2012, the Veteran reported a possible seizure, but the provider concluded that the Veteran was “being manipulative.” The VA Medical Center primary care provider noted that she was unable to do a complete visit with the Veteran due to the Veteran’s spouse becoming irate and swinging the Veteran’s cane at the provider. The provider noted that the Veteran had aphasia and that he was unable to perform a visual field test after a stroke. In an August 2012 VA examination, the examiner noted that the Veteran was diagnosed as having thrombosis, TIA or cerebral infarction in 2008. The examiner stated that the Veteran did not have depression, cognitive impairment or dementia, or any other mental health conditions attributable to a central nervous system disease and/or its treatment and that all of the symptoms or neurologic effects were attributable to the cerebrovascular accident (CVA) in 2010. The Veteran was found to have right hemiplegia which limits all physical activities. The examiner opined that there was no objective evidence that the Veteran’s service-connected disabilities led to the CVA or peripheral arterial disease. In September 2012, the AOJ issued a Statement of the Case (SOC) denying a rating greater than 10 percent for the Veteran’s TBI. The Veteran submitted a VA Form 9 in November 2012. In December 2012, the Veteran was admitted to a VA Medical Center with chief complaint of seizure. A couple days after, the Veteran was admitted with the same complaint. In October 2015, the Veteran contended that the Veteran’s severe cognitive impairments were caused by the Veteran’s vascular disease, and that the vascular disease was caused by a service-connected disability citing a private medical opinion. The private practitioner did not comment on the etiology of the Veteran’s symptoms. In February 2016, the Board remanded the Veteran’s claim as the Veteran contended that his TBI worsened since the last VA examination. The Veteran passed away on March 19, 2017. Causes of death cited were pneumonia, urinary tract infection, and decubitus ulcers. Acute renal failure and advanced dementia were cited as significant conditions contributing to death. At the time of the Veteran’s death, his service-connected disabilities were right nephrectomy due to trauma, migraines associated with residuals of TBI, two separate scars status post nephrectomy, right knee chondromalacia, instability of the right knee, and residuals of TBI. The Veteran’s claims were dismissed by the Board in an August 2017 decision, and the appellant submitted a request for substitution in the same month. Substitution was granted in January 2018, and the common law marriage was found valid in November 2018. In November 2019, the Board remanded the appellant’s claim as discussed above. In January 2020, VA Medical Center records from June 1991 to April 2015 were added to the Veteran’s record. In February 2020, the appellant stated that the providers discussed in the November 2019 Board remand were VA Medical Center practitioners. In March 2020, a VA examiner opined that the Veteran’s advanced dementia prior to his death was not likely associated with TBI as the Veteran was able to obtain a bachelor’s degree and work in the computer field after his injury. The examiner also opined that the TBI was unlikely to have contributed to any need for aid and attendance prior to his death. With regards to the Veteran being permanently bedridden, the examiner also opined that the records did not show a plausible permanent condition due to the combination of service-connected disabilities alone. Analysis Applying the criteria set forth above to the facts in this case, the preponderance of the evidence is against the assignment of a rating greater than 10 percent for TBI. There is no competent medical opinion of record that attributes the Veteran’s cognitive symptoms to TBI suffered in 1979. The May 2009 VA examination, nearly 30 years after his TBI, shows that the Veteran’s TBI residuals warranted a 10 percent rating as discussed above. After his strokes in 2008 and 2011, the October 2012 VA examiner opined that the Veteran’s worsened symptoms were due to the stroke and cited the Veteran’s medical evidence of record to support his opinion. The private medical opinion from September 2015 did not discuss the severity of the Veteran’s TBI residuals but instead contended that the CVA was caused by the Veteran’s service-connected right nephrectomy. In March 2020, another VA medical practitioner opined that the Veteran’s TBI had not caused the worsened cognitive symptoms. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 10 percent for the Veteran’s service connected TBI, have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. An increased evaluation for a right nephrectomy due to trauma (kidney disorder), greater than 30 percent prior to June 23, 2010, and greater than 60 percent from June 23, 2010 The appellant contends that the Veteran was entitled to a rating greater than 30 percent prior to June 23, 2010, and greater than 60 percent from June 23, 2010 for service-connected right nephrectomy due to trauma (“right nephrectomy”). The Veteran was in receipt of two separate ratings for scars caused by right nephrectomy prior to his death. The Veteran’s right nephrectomy was rated under 38 C.F.R. § 4.115b, Diagnostic Code 7500, Kidney, removal of one. The minimum evaluation is 30 percent under Diagnostic Code (DC) 7500 and will be rated as renal dysfunction if there is nephritis, infection, or pathology of the other. After June 23, 2010, the Veteran’s right nephrectomy was rated under 38 C.F.R. § 4.115a, Renal dysfunction. A 60 percent rating requires constant albuminuria with some edema; or, definite increase in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating requires persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 38 C.F.R. § 4.104, DC 7101, Hypertensive vascular disease (hypertension and isolated systolic hypertension) requires diastolic pressure predominantly 120 or more for a 40 percent rating, and diastolic pressure predominantly 130 or more for a 60 percent rating. Factual Background In July 2008, the Veteran filed a claim for a greater rating for right nephrectomy to “protect [his] filing date.” Although he stated that he would submit additional evidence, no additional evidence was submitted and the AOJ continued the 30 percent rating in a September 2008 rating decision. The Veteran was afforded a VA examination in August 2009 for his right nephrectomy. The examiner noted that the Veteran’s right kidney had to be removed in the summer of 1979 and that the Veteran’s condition since onset was stable. There was no history of neoplasm, no general systemic symptoms due to genitourinary disease, no urinary symptoms, no urinary leakage, no history of recurrent urinary tract infections (UTI), no history of obstructed voiding or urinary retention, no history of renal dysfunction or renal failure, no history of acute nephritis, no history of hydronephrosis, and no cardiovascular symptoms. The Veteran’s ejaculation was also normal. Physical examination results were also normal and there were no infections or other pathologies. The Veteran’s claim was denied in an October 2009 rating decision. The AOJ found that a higher rating was not warranted as there was no constant albuminuria with some edema, definite decrease in kidney function, or hypertension with diastolic pressure predominantly 120 or more and moderately severe symptoms. The Veteran submitted an NOD in April 2010. VA Medical Center treatment records show that, in pertinent part, the Veteran complained of hypertension and renal insufficiency on March 2, 2010. The Veteran reported that his systolic blood pressure was usually in the 120s and that his diastolic blood pressure was in the 80s. The Veteran also reported no longer taking tizanidine or ensure, and that he continued to smoke a pack per day with no interest in quitting. The Veteran also did not take or refill his hypertension medication. Treatment records showed renal insufficiency and proteinuria. On June 23, 2010, the Veteran’s creatinine level was measured to be beyond the normal range. BUN readings were never measured to be above 40mg% and creatinine never above 4mg%. In a June 2012 rating decision, the AOJ granted an increased rating of 60 percent effective June 23, 2010, when the Veteran’s creatinine level was above the established normal range. In September 2012, the AOJ issued an SOC denying entitlement to an evaluation greater than 60 percent disabling prior to June 23, 2010 for right nephrectomy. In November 2012, the Veteran submitted a VA Form 9. In February 2016, the Board remanded the Veteran’s claim as the evidence of record did not include VA Medical Center treatment records beyond December 2012, and since the Veteran contended that his symptoms worsened last VA examination for his right nephrectomy was in August 2009. As discussed in detail above, the Veteran died in March 2017, and the Board remanded the appellant’s claim in November 2019. VA Medical Center treatment records beyond December 2012 were added in January 2020, and a VA medical opinion was obtained in April 2020. The examiner observed that the Veteran underwent nephrectomy in 1980 due to an injury in service in 1979, and that the Veteran’s renal functions had remained relatively stable. Based on the medical records, the examiner opined that the Veteran had very little lethargy, edema, weakness, anorexia, weight loss, or other issues. The examiner also noted that the Veteran’s renal functions were within normal limits when he was admitted to the hospital in January 2017, two months prior to his death, and that the acute renal failure was due to infection and sepsis. The examiner also attributed the infection to ulcers or urinary tract infection rather than the service-connected chronic renal dysfunction. Analysis–rating greater than 30 percent prior to June 23, 2010 Applying the criteria set forth above to the facts in this case, the preponderance of the evidence is against the assignment of a rating greater than 30 percent prior to June 23, 2010. As discussed in detail above, there is no medical evidence of constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101 prior to June 23, 2010. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 30 percent for the Veteran’s service-connected right nephrectomy prior to June 23, 2010 have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Analysis–rating greater than 60 percent from June 23, 2010 Applying the criteria set forth above to the facts in this case, the preponderance of the evidence is against the assignment of a rating greater than 60 percent from June 23, 2010. As discussed in detail above, there is no medical evidence of constant albuminuria with some edema; or, definite decrease in kidney function; or, persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 60 percent for the Veteran’s service-connected right nephrectomy from June 23, 2010 have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. An evaluation greater than 30 percent for migraines associated with residuals of a head concussion The appellant contends that the Veteran was entitled to a rating greater than 30 percent for migraines associated with residuals of a head concussion (“migraines”). The Veteran was in receipt of a 30 percent evaluation for his headaches since March 24, 2003. The Veteran’s migraines were rated under 38 C.F.R. § 4.124a, DC 8100, Migraine. Under DC 8100, a 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Factual Background On July 6, 2009, the Veteran submitted a claim for an increased rating for his service-connected TBI residuals. VA Medical Center treatment records show that the Veteran reported headaches occurring 2-3 times a week with each episode lasting for hours. The Veteran denied having headaches in March 2009. On August 28, 2009, the Veteran was afforded a VA examination for his headaches. The Veteran reported that he did not take continuous medication for his headaches and that most of his weekly headaches were prostrating, lasting hours. The examiner opined that the Veteran had 2 headaches per week that are prostrating, but that he should be able to do sedentary work. In an October 2009 rating decision, the AOJ continued the Veteran’s 30 percent rating for his migraines. The Veteran submitted an NOD in April 2010. VA Medical Center treatment records show that the Veteran reported no change in intensity of his headaches in June 2010. In May 2011, the Veteran reported having “some” headaches, and in September 2011, he reported biweekly headaches but did not comment on the severity of the headaches. In October 2011, he denied having headaches. There was no complaint of headaches resulting in severe economic inadaptability. As discussed in detail above, the Veteran died in March 2017, and following a Board reman in November 2019, a VA opinion was obtained in May 2020. The examiner noted that the Veteran’s residual headaches did not preclude the Veteran from obtaining a bachelor’s degree and work after discharge, but that it was not possible to determine the severity of the headaches after death. The examiner stated that the severity of the Veteran’s headaches could only be reliably provided by the Veteran or someone living in the same household at the time of death. In October 2020, another VA examiner opined that there was no data specifically describing the frequency, duration, or intensity of the Veteran’s migraines. Analysis Applying the criteria set forth above to the facts in this case, the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the Veteran’s service-connected migraines. Although the Veteran reported very frequent prostrating attacks, there is no evidence of record, lay or medical, that the headaches were productive of severe economic inadaptability. In August 2009, the VA examiner specifically opined that the Veteran was able to do sedentary work, and there is no evidence of record that the Veteran’s work in computers after discharge was not sedentary. In November 2019, the VA opinion stated that the severity could only be reliably provided by the Veteran or someone living in the same household at the time of death, and the Veteran did not report his headaches causing economic inadaptability. To the contrary, the Veteran consistently reported that he did not take headache medications continuously, and often reported no headaches during VA Medical Center appointments or that the intensity of the headaches had not changed since the August 2009 VA examination. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 30 percent for the Veteran’s service-connected migraines have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. A total rating based on individual unemployability due to service-connected disabilities (TDIU) The appellant contends that the Veteran’s service-connected disabilities precluded him from obtaining and maintaining gainful employment. Prior to his death in March 2017, the Veteran was in receipt of a combined 70 percent rating from July 6, 2009, and a combined 80 percent rating from June 23, 2010. His service-connected disabilities were right nephrectomy, migraines, two scars, right knee chondromalacia, right knee instability, and residuals of TBI. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). As discussed above, the Veteran met the schedular criteria for TDIU. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to (1) the veteran’s history, education, skill, and training; (2) 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, considering factors that may be relevant that 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 (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). A total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Factual Background In December 1991, the Veteran was examined by a licensed psychologist. The Veteran reported that he taught as a preschool instructor for 11 years, concurrently served in the Army Reserve Green Beret units, and after retraining in computers in 1984, he worked in the national defense industry until he was laid off in 1990. He then opened up his own business which was unsuccessful. The Veteran reported that he was able to work through back pain until he experienced an increase of pain during 1990 which he “never recovered from” and felt that he was incapable of sedentary employment due to his pain levels, concentration loss, and diminished capacities from former functioning. In October 1997, the Veteran reported that he worked as an instructor, security officer, floorman, and consultant from February 1979 to November 1991. He described his security work as “computer programming, moving or setting-up computers.” He reported that he continued to work since his injury although he did have a “bad back pain” since the injury. In October 1991, the Social Security Administration (SSA) found that the Veteran’s condition was not severe enough to keep him from working, but in October 1992, the SSA found that the Veteran’s disability began in January 1, 1991, due to a primary diagnosis of “severe low back pain with radiculopathy.” Secondary diagnoses included depression, spondylosis, nephrectomy and headaches. In May 2009, a VA medical practitioner found that there was cogent evidence to suggest considerable decline in his premorbid level of functioning. The examiner, however, found that the Veteran had the cognitive capacity to function safely and in a relatively independent manner with decision making regarding personal affairs and managing daily activities of living. In July 2009, the Veteran contended that his TBI worsened and that it prevented him from maintaining gainful employment. In September 2009, a VA examiner opined that the Veteran should be able to sedentary work “from the standpoint of” his service-connected right nephrectomy and migraines. The Veteran also reported that he had not been employed for 10 to 20 years and stated that it was his back pain, not service-connected disabilities, that prevented him from working. In an October 2009 rating decision, the AOJ denied a TDIU and found the Veteran capable of gainful employment. The Veteran submitted an NOD in April 2010. In August 2011, the Veteran submitted a VA Form 21-8940 and stated that he worked 40 hours per week from September 1984 to January 1990. He stated that it was his TBI that prevented him from working and that he worked in security. In August 2012, the Veteran submitted another VA Form 21-8940, this time attributing his inability to find gainful employment to “bad knees, HP, diabetics, traumatic brain injury.” The Veteran’s diabetes mellitus is not connected to service. In October 2011, the Veteran reported that in “computers” and that he was a “head start” teacher for a period of time. He was qualified for Social Security disability income benefits in the 1990s. In August 2012, the Veteran was afforded a VA examination and the examiner opined that the Veteran suffered CVAs since 2008 that were not related to his service. The examiner also opined that the causes of the Veteran’s symptoms could be differentiated and that his neurological symptoms were all caused by his CVA in 2011. The AOJ again denied the Veteran’s claim in a September 2012 SOC, and the Veteran submitted a VA Form 9 in November 2012. In May 2014, the Veteran submitted another VA Form 21-8940. He attributed his inability to obtain gainful occupation to TBI, kidney, migraines, and orthopedics. In February 2016, the Board remanded the Veteran’s claim as it was inextricably intertwined with the other claims that were remanded. The Veteran passed away in March 2017, and in November 2019, the Board again remanded the claim. In January 2020, the AOJ was notified that the Veteran’s VRE file was destroyed in 1993 as the Veteran did not pursue VRE services. In March 2020, a VA examiner opined that the Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining gainful employment as the Veteran was able to obtain a bachelor’s degree and work in the computer field after his injury. Analysis Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a TDIU. As discussed above, in July 2009, the Veteran contended that he could not find work due to his TBI. He had been in receipt of a 10 percent rating since July 6, 2009. In August 2012, he added that his bad knees, “HP,” and diabetes prevented him from working, and in May 2014, he attributed his inability to find work to right nephrectomy, migraines, and orthopedics. Between July 2009 and May 2014, only his rating for right nephrectomy changed, from 30 percent to 60 percent effective June 23, 2010. As an initial matter, of the reasons cited in his claims, the Veteran was not service connected for “HP,” diabetes, and orthopedics, and therefore those contentions are not relevant to the claim. The Veteran also consistently named back pain as the reason he quit working, for which he was also not service-connected. Regarding the Veteran’s contention in July 2009 that he was unable to find work due to his TBI, the October 2012 VA examiner found that the Veteran’s worsening cognitive functions were due to his CVAs in 2008 and 2011, and opined that the symptoms from CVA and TBI could be differentiated. There is no medical evidence to the contrary. Turning to the Veteran’s contentions of his bad knees affecting his ability to obtain and maintain gainful employment, there is no evidence of record that they would have affected the Veteran’s ability to work in the fields he had worked prior to quitting due to back pain. The Veteran’s migraines, as discussed above, did not preclude the Veteran from working sedentary jobs. Lastly, although the Veteran’s right nephrectomy worsened significantly from June 23, 2010, there is no medical evidence of record that it would have, on its own or in combination with his other service-connected disabilities, precluded the Veteran from obtaining and maintaining gainful employment. As discussed in the right nephrectomy section above, the 60 percent rating was warranted due to an increase in creatinine levels that went beyond the normal range on June 23, 2010, but remained controlled. It did not result in symptoms that affected the Veteran’s ability to obtain and maintain gainful employment. A higher rating of 80 percent was not warranted, in relevant part, as it did not result in generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion that would have affected his ability to find gainful employment. Again, a high rating is recognition that the impairment makes it difficult to obtain or maintain employment. Van Hoose, 4 Vet. App. at 363. In sum, the Board finds that the totality of the evidence demonstrates that the Veteran was not unable to obtain and retain substantially gainful employment, based solely on service-connected disabilities. But for his back pain that forced him to quit working in 1991 and his strokes since 2008 affecting his cognitive functions, the Veteran would have been able to obtain and maintain gainful employment. Therefore, although the Veteran met the schedular requirement for TDIU, the Veteran was not entitled to TDIU. Accordingly, the Board finds that the preponderance of the evidence is against the claim of TDIU, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. Therefore, the appeal is denied. 5. A special monthly compensation based on the need for aid and attendance or housebound status The appellant contends that the Veteran was entitled to a special monthly compensation based on the need for aid and attendance or housebound status (“SMC”). “SMC is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). Section 1114(l) provides five distinct ways for a veteran, “as the result of service-connected disability,” to qualify for this rate of SMC—(1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having “such significant disabilities as to be in need of regular aid and attendance.” 38 U.S.C. § 1114(l). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the veteran to dress or undress him or herself, or to keep him or herself 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself 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 hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. It is not required that all of 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 a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. “Bedridden” will be a proper basis for the determination for the need for aid and attendance. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a 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). In Turco v. Brown, 9 Vet. App. 222, 224-25 (1996), the United States Court of Appeals for Veterans Claims (Court) held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The evidence of record does not demonstrate that the Veteran’s service-connected disabilities render him unable to feed himself, attend to the wants of nature, keep himself ordinarily clean and presentable, or that he has a physical or mental disorder which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. As discussed in detail above, the Veteran’s CVAs in 2008 and 2011 were the cause of his inability to perform some acts of daily living. Thus, SMC based on the need for aid and attendance is therefore not warranted. If a veteran does not qualify for increased benefits for aid and attendance, increased compensation benefits may still be payable if the veteran is able to establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s). Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he or she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. Id. In Bradley v. Peake, the Court held that if the evidence supports a finding of TDIU based solely upon a single service-connected disability, then such a TDIU rating may serve as the factual predicate for an award of SMC pursuant to 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Veteran did not have a service-connected disability rated at 100 percent; nor was he in receipt of a 100 percent rating based on TDIU as discussed above. Thus, the criteria for SMC based on statutory housebound status have not been met. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board further finds that the weight of the competent and probative evidence is against finding that the Veteran was substantially confined to his home due to his service-connected disabilities. The Veteran contends that he is housebound because of his TBI; however, as discussed above, it was his CVA that caused the increased symptoms for which he was claiming SMC. The Board finds that service-connected disabilities did not render the Veteran housebound for purposes of SMC. SMC based on housebound status is therefore not warranted. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.