Citation Nr: 21008126 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-16 705 DATE: February 11, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. Special monthly compensation (SMC) based on the need for aid and attendance is denied. FINDINGS OF FACT 1. The Veteran had active service from August 1960 to November 1964. 2. The Veteran is service connected for a low back disability at 20 percent and residual scarring at 0 percent; he has not been unable to secure or maintain a substantially gainful occupation solely as the result of his service-connected disabilities. 3. The Veteran is not in need of aid and attendance due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2020). 2. The criteria for SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1502, 1521 (2012); 38 C.F.R. §§ 3.350, 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2019, the Board remanded the Veteran’s claims for additional development, to include referral to the Director of Compensation Service and a VA examination. The case has now come back to the Board for further appellate action. TDIU TDIU ratings 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 a result or two or more disabilities, provided at least one disability is ratable at 40 percent or more and there are sufficient additional service-connected disability ratings to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level or education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16, 4.19. The mere fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. § 4.16(a). For the entire period on appeal, the Veteran has been service connected for multilevel degenerative findings in the lumbar spine at 20 percent. Additionally, a noncompensable rating has been granted for a residual scar associated with the lumbar disorder. The combined rating for the entire period on appeal is 20 percent. Therefore, the schedular criteria for a TDIU were not met under 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In this case, the Veteran’s claim for TDIU was considered under 38 C.F.R. § 4.16(b) in a November 2020 Administrative Decision in which the Director of Compensation Service denied entitlement to TDIU on an extraschedular basis. Notwithstanding the opinion provided by the Director of Compensation Service, the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015). In assessing whether extraschedular TDIU is warranted, the determination must be supported by “a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.” 38 C.F.R. § 4.16(b). Moreover, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient. Rather, the Board must determine whether a veteran’s combined service-connected disabilities, despite failing to meet the schedular criteria, inhibited his or her capacity to perform the physical and mental acts required for employment. The Veteran reported that he was last able to work in October 2017, at which time he became too disabled to maintain a substantially gainful occupation at a level consistent with prior experience. A review of the record reveals that he had experience working in manufacturing and as a machinist. The record further shows that he completed three years of high school, as well as additional training as a machinist. In an October 2017 VA examination, the Veteran reported constant, low-grade, dull pain in his lumbar spine. He noted that he had incapacitating episodes that lasted 3 to 5 days but said that he was employed as a machinist. The examiner diagnosed degenerative arthritis of the lumbar spine but offered that the low back disorder did not impact the Veteran’s ability to work. In a subsequent February 2018 statement, the Veteran reported that he worked as a machinist until October 26, 2017. He noted that he was service connected for a back injury but explained that shortly after he was diagnosed with prostate cancer, it became increasingly difficult for him to complete his work responsibilities. He said that he had no stamina after standing for approximately three hours. In a subsequent March 2018 statement, the Veteran’s employer described the Veteran as a reliable employee until his July 2017 cancer diagnosis, saying that he was always on time and enjoyed his job. Ultimately, an October 2018 medical treatment note reinforced that he retired followed a year of radiation treatment due to prostate cancer. In a February 2019 VA examination, the examiner again diagnosed degenerative arthritis of the lumbar spine. The examiner found that the disorder impacted the Veteran’s ability to work, explaining that it left him unable to sit or walk for long periods of time without difficulty. However, the examiner did not opine as to the Veteran’s capacity to obtain or maintain substantially gainful employment. In March 2019, the Veteran elaborated on the impact of his service-connected lumbar spine disorder, explaining in a statement that he lost work and was unable to walk many times since over the time since his separation from service. Later, in October 2020, he reported left knee pain that was severe and affected his ability to perform activities of daily living, to include walking and exercise. However, while a subsequent December 2020 VA examination revealed that his lumbar spine disorder resulted in pain and problems with lifting and carrying, it did not examine the impact of his lumbar spine disorder on his ability to obtain and maintain substantially gainful employment. Based on the above, a TDIU is not warranted. In this regard, the February 2019 and December 2020 examiners opined that the Veteran’s lumbar spine disorder affected his ability to work through pain, problems with lifting and carrying, and an inability to stand or walk for extended periods of time without difficulty. However, the examiners did not find that he was unable to obtain or maintain substantially gainful employment. Additionally, assignment of a TDIU requires that a veteran’s inability to maintain employment be due solely to service-connected disabilities. In a February 2018 statement, the Veteran asserted that his unemployability was the product of prostate cancer. As noted above, the determinative issue when evaluating eligibility for TDIU is whether a veteran is rendered unable to secure or follow a substantially gainful occupation solely as the result of service-connected disabilities. The Veteran is not presently and has not previously been service-connected for prostate cancer. Therefore, the medical evidence does not establish that his unemployment was the product of service-connected disabilities alone; as such, the medical and lay evidence do not support entitlement to a TDIU. SMC Based on the Need for Aid and Attendance SMC may be granted based on the need for aid and attendance if a veteran, as a result of service-connected disabilities, 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 is so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of regular aid and attendance: (1) an inability 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, or lacing at the back); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremes 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 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. §§ 3.350(b)(4), 3.352(a). In a June 2017 medical treatment note, a clinician determined that the Veteran received no assistance with bathing, getting his clothes, dressing, toileting, transferring, and feeding. The clinician additionally noted that the Veteran controlled urination and bowel movement completely by himself. However, the clinician did not opine as to either the Veteran’s need for aid and assistance or any underlying disabilities. In a subsequent October 2017 VA examination, the examiner diagnosed degenerative arthritis in his low back. The examiner noted that the Veteran experienced incapacitating flares but offered that his functional capacity, as well as his ability to sit, stand, and walk, were otherwise unlimited. The examiner found that his day-to-day activities were not limited but that he functioned better with the ability to move, sit, or change positions at will. The examiner finally determined that the Veteran did not have intervertebral disc syndrome (IVDS) requiring bed rest. In a November 2017 lay statement the Veteran asserted that he was in constant pain, for which he had to compensate, was unable to perform basic daily tasks, and was bedridden. However, the contemporary medical evidence, including November and December 2017 medical treatment notes, did not support his assertions, finding instead that he was independent as to mobility and his ability to perform ADLs and instrumental activities of daily living (IADLs). In subsequent medical treatment notes between December 2017 and February 2019, clinicians noted that the Veteran was dependent in continence-related tasks and needed somebody else to do his laundry, but again found that he was independent in bathing, dressing, toileting, transferring, feeding, and mobility. The clinicians further found that the Veteran was able to operate the telephone, shop independently for small purchases, prepare adequate meals when supplied with ingredients, perform light daily tasks, travel independently via public transit or in his own car, take the correct dosages of medication at the correct times, and manage financial matters independently. The clinicians finally determined that he was not bed or wheelchair bound. In a February 2019 VA examination, the Veteran reported that a lumbar spine disorder resulted in an inability to sit or walk for long periods of time without difficulty. He further asserted in a May 2019 statement that he was bed-ridden and unable to walk as a result of the disorder. However, medical treatment notes from April 2019 to December 2020 found that, while he continued to be dependent in continence-related tasks, he remained independent in bathing, dressing, toileting, transferring, and feeding. Clinicians determined that he continued to be able to operate the telephone, take care of shopping needs, plan, prepare and serve adequate meals, use public transit, drive his own car, and manage his financial matters independently. They further reported that he maintained his house alone or with occasional assistance and was able to do his personal laundry and take medications in the correct doses at the correct times. They finally reinforced that he was neither bed nor wheelchair ridden. In a December 2020 VA examination, the Veteran reported flare-ups of his lumbar arthritis. He said that while he was not specifically bedridden or instructed to stay in bed by a physician, he generally stayed in bed during his flare-ups because his back felt better when he did so. He said that during his flare-ups, he was able to go to the bathroom and eat meals. In a separate December 2020 VA examination, the examiner found that the Veteran was not permanently bedridden, able to travel beyond his current domicile, able to perform all functions required for self-care skills, and capable of managing his own financial affairs. While mild memory loss was noted, the Veteran was never dizzy and had no other impairments that affected his ability to protect himself from his daily environment. The examiner determined that the Veteran was able to walk without assistance for up to a few hundred yards and did not need aids to ambulate. The examiner reported that he demonstrated limited motion in his lumbar spine, abnormal functioning in his lower extremity functioning and weightbearing and propulsion that, as a result of a nonservice-connected left knee disorder, favored his left side. The examiner finally offered that the Veteran’s ability to leave his home was unrestricted. Based on the above, SMC based on a need for aid and attendance is not warranted. In this regard, the medical treatment notes and VA examinations reflect, at worst, that the Veteran was dependent on others when performing continence-related tasks and doing his laundry. The medical record further determined that he had impaired motion in his lumbar spine and abnormal functioning in his left lower extremity. Finally, in multiple lay statements, he described himself as bed-ridden and noted that his lumbar spine disorder left him unable to stand or walk for extended periods of time without difficulty. However, the medical evidence established that he was able to feed himself, bathe himself, dress himself, attend to the wants of nature, and transfer. The medical treatment notes and lay statements further reveal that he did not require the use of any assistive or mechanical aid for ambulation, was able to ambulate independently and protect himself against normal or environmental hazards. Furthermore, the record did not reinforce the Veteran’s description of himself as bedridden; rather, clinicians in multiple medical treatment notes determined that he was neither bed-ridden nor wheelchair-ridden. Finally, while functional limitations, to include difficulty standing and walking for extended periods of time, were identified as a result of his service-connected lumbar spine disability, the medical evidence did not establish that his functional limitations left him in need of regular aid and attendance. As such, neither the medical nor the lay evidence supports entitlement to SMC based on a need for aid and attendance and there is no doubt to be otherwise resolved. The Board has considered the statements and testimony submitted by the Veteran regarding his capacity to work and need for aid and attendance throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. §§ 3.350, 3.352, and 4.16. Such competent evidence concerning the nature and extent of the Veteran’s employability and need for aid and attendance have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability and need for aid and attendance are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by his service-connected disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the subjective evidence of complaints of increased symptomatology submitted by the Veteran. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.