Citation Nr: 21025507 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-15 298 DATE: April 28, 2021 ORDER 1. Entitlement to special monthly compensation (SMC) based on need of aid and attendance of another is denied. 2. Entitlement to referral for extraschedular consideration for a total disability rating for compensation due to individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran is blind, or nearly blind, or institutionalized in a nursing home due solely to her service-connected disabilities; additionally, the Veteran's service-connected disabilities did not render her unable to care for most of her daily personal needs without the regular aid and attendance of another person for any period on appeal due to her service-connected disabilities. 2. The preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation for any period on appeal by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for aid and attendance have not been met for any period on appeal. 38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.350(b), 3.352(a). 2. The criteria for referral for extraschedular consideration of TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1992 to March 1999. The Department of Veterans Affairs is grateful for her service. 1. Entitlement to special monthly compensation (SMC) based on need of aid and attendance of another 2. Entitlement to referral for extraschedular consideration for total disability rating for compensation due to individual unemployability (TDIU) The Veteran is service connected for fibromyalgia, currently rated 40 percent disabling; asthma, currently rated 30 percent disabling; and disabilities of each knee, each rated zero percent disabling. Regarding the SMC claim, an increased rate of compensation in the form of SMC is provided under certain circumstances, including when a Veteran is permanently bedridden, blind or with visual acuity of 5/200 or less in both eyes, or in need of regular aid and attendance due to service-connected disability. See 38 C.F.R. §§ 3.350(b), 3.352(a). In this case, the Veteran has not alleged, and the evidence does not otherwise show, that she is permanently bedridden or blind or institutionalized in a care facility, and hence her claim is not considered on these bases. Rather, she contends that she is entitled to SMC based on regular need of aid and attendance of another due to service-connected disabilities. The following factors will be considered in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress herself, or to keep herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed herself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with the condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. Regarding the TDIU claim, total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to obtain or to maintain a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to obtain or to maintain a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran’s service-connected disabilities have not met the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) at any time during the claim period. Fibromyalgia, her highest rated disability, is rated 40 precent disabling, and her service-connected disabilities have a combined rating of 60 percent. 38 C.F.R. § 4.25. As discussed below, the Veteran has several non-service-connected disabilities, but these cannot be considered for purposes of the Veteran’s TDIU claim. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to obtain or maintain a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to obtain or maintain a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (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 required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board here discusses the relevant evidence for both appealed claims, due to their substantial overlap of facts. The Veteran contends, in effect, that she requires the regular assistance of another for self-care and that she is incapable of obtaining or sustaining substantially gainful work due to her service-connected disabilities. The Veteran is service connected for fibromyalgia, currently rated 40 percent disabling; asthma, currently rated 30 percent disabling; and disabilities of each knee, each rated zero percent disabling. At the July 2018 hearing before the undersigned, the Veteran testified to her partner assisting her with activities of daily living, including getting dressed, preparing meals, and bathing. She also reported that she used a walker and a wheelchair, using a walker in her home because the doorways in her home were not wide enough for a wheelchair. Regarding education, the Veteran testified to attending three years of college, studying graphic design, film production, and electronic engineering. She reported attending three years of college but not finishing her degree in electronic engineering. She testified that she last worked full time in 2005. Elsewhere in the record, at different treatments and examinations, the Veteran has variously reported being substantially wheelchair bound or being limited in her standing due to service-connected disabilities including her fibromyalgia and her knees, or that she is limited in lifting and moving objects due to becoming short of breath from her asthma. The Board here concludes that the Veteran’s reports of incapacities due to service-connected disabilities are not credible, and contrary statements by the Veteran and contrary findings by examiners lead to the Board to conclude that the Veteran is not precluded from performing self-care or activities of daily living or protecting herself from hazards of everyday life and is not precluded from obtaining and sustaining substantially gainful work by her service-connected disabilities, with the preponderance of the evidence against both of these claims and contentions. In a submitted December 2010 private examination report addressing need for aid and attendance of another or housebound status, a physician concluded that the Veteran could feed herself but could not prepare her own meals and needed assistance of another in bathing and tending to other hygiene needs. The physician assessed that the Veteran was comfortable in a wheelchair, but that she transferred with assistance. The physician found that pain, muscle weakness in the bilateral upper and lower extremities in the proximal and distal muscle groups, and intermittent paresis of the right lower extremity resulted in restrictions. The physician also identified decreased range of motion of the spine due to pain and dizziness as a result of chronic eustachian tube dysfunction. The Veteran reportedly left her home for medical appointments. At a December 2010 VA examination addressing the Veteran’s fibromyalgia with a focus on whether her service-connected conditions rendered her unemployable, the examiner noted that the Veteran’s primary complaints were uncontrolled pain, profound fatigue, poor sleep, stiffness, headaches, and depression. The examiner documented the Veteran had no Raynaud’s syndrome and no irritable bowel syndrome. The examiner also observed that the Veteran had no history of treatment with trigger point injections for fibromyalgia. The Veteran reported not being able to work since 2010, adding that she had been a full-time student in computer engineering at ITT until she quit, and she had not looked for work since that time. She also reported falling in July due to right-side weakness. However, the examiner noted that the right-side weakness had been investigated by rheumatology and neurology, with brain scans and nerve conduction studies, and an explanation for this reported weakness had not been found. The examiner also noted that unilateral weakness was atypical for fibromyalgia. The Veteran reported being in a wheelchair for the past two to three months and unable to work, prepare meals, or bathe herself, and that her partner helped her with activities of daily living. The Veteran denied having any asthma attacks in the past year, and reported that she primarily had exercise-induced asthma and since she could not exercise she no longer had problems associated with her asthma and it had not been disabling for her, with no effect on her occupational status. Relevantly, at this December 2010 examination, the Veteran reported that she was unable to stand or walk. The examiner found no edema or contractures in the extremities. The examiner noted as a remarkable finding that the Veteran had painful range of motion in the right shoulder and right hip, with the Veteran tending to resist motion while claiming to be weak. The Veteran also reported tenderness everywhere the examiner touched. However, lymphatic examination was negative. The Veteran’s mental status was clear, with no confusion or disorientation, and neurological functioning was intact with intact reflexes despite subjective weakness in the right side of her body in both her arm and leg. She also refused to raise her right arm but offered resistance when the arm was raised. She also claimed to be too tender to use the right side of her body. The examiner concluded as follows: The diagnosis of fibromyalgia is not in question. It is my medical opinion that the Veteran does indeed have fibromyalgia, but I side with the rheumatologist and the neurologist in that unilateral weakness is not typical for fibromyalgia. Another diagnosis has been unable to be made up to this point. The Veteran is in a wheelchair and claims to have a right-side weakness. This is atypical for fibromyalgia, although she does have fibromyalgia and is 40% service connected. Her asthma, for which she is 10% service connected, is not an issue at this time and would not prevent gainful employment whether physical or sedentary. If one assumes that her present unilateral weakness is a result of fibromyalgia, then she is unable to do physical or physical (sic) or sedentary employment at this time. Thus, the examiner, in so many words, expressed doubt in ascribing the Veteran’s reported right-side weakness and associated inability to walk or stand to her service-connected fibromyalgia, but concluded that if the Veteran had this condition due to her fibromyalgia then she would be unable to perform physical or sedentary work due to fibromyalgia. However, treatment records both prior to and shortly after this December 2010 examination undermine the Veteran’s credibility at the examination regarding her symptoms and impairments in functioning. Of primary relevance at the December 2010 examination were the Veteran’s self-reports of incapacity including due to pain and weakness, with reported incapacity to walk or stand. However, upon a November 2010 VA treatment, when the Veteran reported that her symptoms were getting worse, with worsening generalized pain and inability to walk due to severe weakness after any strenuous activity, though she could walk around her house if she “just sits around and watches TV.” Only months later, at a VA woman’s clinic visit in April 2011, the Veteran did not report any change in her condition, yet the examiner observed her to stand without assistance, though she needed to pop her joints when she stood up. She also reported walking a dog for exercise. Thus, the April 2011 visit undermines the Veteran’s report at the December 2010 examination of inability to stand or walk, and thus undermines her credibility for reported incapacities including due to her fibromyalgia, asthma, and knee disabilities. The December 2010 examiner’s conclusions, dependent as they are on the Veteran’s non-credible self-reports of limitations, are not probative. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). Similarly, the submitted December 2010 private examination report addressing the need for aid and attendance of another or being housebound is also not probative based on its reliance, for its conclusions that the Veteran was unable to perform self-care activities and needing assistance to transfer, on the Veteran’s self-reports or demonstrations which are not credible, as amply demonstrated by the Veteran’s contentions of inability to walk at the December 2010 VA examination being undermined by her self-report in April 2011 of walking a dog for exercise. Id. The April 2011 women’s health visit also noted several other non-service-connected conditions, including obesity, plantar fasciitis, occasional migraine headaches, carpal tunnel syndrome, eustachian tube dysfunction, temporomandibular joint disorder, essential tremor, PTSD, and anxiety. A treatment record in July 2010 informs of the Veteran’s fall seven days earlier and increased difficulties since that fall, with weakness/tremors and dizziness/lightheadedness that made walking difficult and driving impossible. A head MRI and lumbar spine MRI were obtained, and these were both normal. Subsequently in July 2010 the Veteran was evaluated for symptoms of loss of hip flexion and some foot drop. However, upon neurological evaluation in July 2010, the examiner found variable effort in strength testing with full strength ultimately found in both lower extremities. Coarse erratic tremors, which were easily interrupted with complex thinking or motor tasks. The Veteran also exhibited variable foot drag, with the Veteran presenting a left foot drag despite a history of right foot drag, and when queried, she reported that it changed sometimes. The Veteran initially held the wall to walk but then walked quite well when forced to, and she demonstrated very good lower extremities reflexes throughout when distracted. The neurology examiner assessed that the Veteran’s presenting condition was “variable and nonphysiologic,” thus implicating a false presentation or a psychological cause. Subsequently in July 2010 the Veteran was evaluated for symptoms of loss of hip flexion and some foot drop and continuous fatigue; the clinician could not arrive at a diagnosis. Also in 2010, the Veteran complained of new onset problems with bilateral hip pain. The varied disabilities and symptoms as reflected in 2010 and 2011 treatment records and other treatment records implicate other disabilities causing difficulties with ambulation and self-care, consistent with the conclusion that the Veteran’s fibromyalgia, asthma, and knee disabilities are not primarily productive of what difficulties the Veteran may have with some activities. The documented conclusions well-supported by objective observations including when the Veteran is distracted or based on the Veteran’s inconsistent self-reports or demonstrations, are that the Veteran’s demonstrated or complained-of impairments are substantially if not entirely “nonphysiologic.” Implications of false presentation or psychological causes support conclusions both of non-credibility of the Veteran and of absence of reported incapacities for work or self-care due to service-connected disabilities. Upon VA examinations addressing the Veteran’s knees and fibromyalgia in May 2014, the examiner found some limitation of motion and recognized both diagnosed femopatellar syndrome, bilaterally, and fibromyalgia affecting the knees, informing that the examiner could not differentiate impairment due to the fibromyalgia from that due to discrete knee disabilities. The examiner found bilateral effects of fibromyalgia and/or knee disabilities including less movement than normal, weakened movement, excess fatigability, and pain on movement. The Veteran reportedly used a wheelchair on a constant basis and braces occasionally, but the examiner noted that the use of a wheelchair was reportedly due to the Veteran’s fibromyalgia and increased right side weakness and not due to the bilateral knee conditions. Despite reporting constant use of a wheelchair, the Veteran also reported that she could stand for no more than 15 to 20 minutes due to knee pain and thus required assistance with household chores. The Veteran provided no explanation for this contradiction. Besides the Veteran’s fibromyalgia with diffuse joint pain, the examiner noted the Veteran’s morbid obesity played a role in limiting the Veteran’s functioning. At the May 2014 examination addressing fibromyalgia, the Veteran reported progressive, slowly worsening pain symptoms throughout her body. She was treated with Tizanidine for both depression and her fibromyalgia. Symptoms were noted to include diffuse musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbance, and depression. Her symptoms were noted to be present more than one-third of the time, both episodically and with exacerbations. However, the examiner did not attribute a significant portion of her impairment to service-connected disability, finding that the Veteran’s presentation of limitations in functioning of her hips, back, and knees were due to “morbid obesity versus posttraumatic stress disorder (PTSD) versus depression versus arthralgia.” Thus, the Veteran’s fibromyalgia, asthma, and disabilities of each knee were not found to play the predominant role even in impairments of her joints, much less in her overall capacity for work or for self-care. The May 2014 fibromyalgia examiner also noted the Veteran’s reports of increasing right-sided weakness in the upper and lower extremities. However, the examiner commented that right-side weakness was “not consistent with usual findings of fibromyalgia.” Upon VA respiratory examination in May 2014, the Veteran reported that beginning in service her asthma had resulted in shortness of breath and wheezing with lifting and moving objects, and that recently her asthma prevented her from performing exertional work such as doing the dishes or cleaning, while currently she an unspecified acute illness that resulted in her being more limited. She treated her asthma daily with an Albuterol inhaler. She used antibiotics for treatment of respiratory infection less frequently than monthly. Pulmonary function tests were performed in November 2013, and pre-bronchodilator results were normal. The Veteran reported having no asthma attacks with episodes of respiratory failure in the past 12 months. In a March 2015 addendum to the May 2014 examinations, addressing work capacity, the VA examiner concluded that the Veteran could not perform standing work due to physical problems including fibromyalgia, but concluded that the Veteran could perform work seated with “repeated rest breaks.” He observed that when the Veteran conversed with him over a 30-minute period she appeared “very comfortable” and “very conversant.” The examiner also concluded that the Veteran would be limited in her walking to 5 to 10 minutes, but that this was due to a combination of conditions including her psychological problems, morbid obesity, fibromyalgia, and knee problems. The examiner also concluded that the Veteran’s asthma was not a limiting factor for such activity. Upon VA examination in April 2015 to address fibromyalgia, the examiner noted that the Veteran was pushed in a wheelchair by her partner and that she demonstrated significant limitation in functioning. However, the examiner concluded that other factors contributed to the Veteran’s presentation, including morbid obesity and PTSD associated with childhood trauma, and found that the greater portion of the Veteran’s impairment presentation was due to psychological issues rather than her knees, fibromyalgia, or her other physical disabilities including those of her back and hips. Upon VA records-based respiratory examination in May 2020, the examiner found that the Veteran’s asthma was exercise-induced and was manifested by shortness of breath with lifting and moving objects. She used an Albuterol inhaler as needed. The examiner found no clinical evidence or complaints of symptoms reflecting an increase in severity since the Veteran was last examined in 2014. The examiner noted the condition did not require oral or parenteral corticosteroids or oral bronchodilators or antibiotics or oxygen therapy, but it did require intermittent inhalational bronchodilator therapy. The Veteran had no asthma attacks with respiratory failure in the past 12 months, and she had no physician visits in the past 12 months required for care of exacerbations. No other symptoms or associated impairments were noted. The examiner concluded that the Veteran’s asthma did not impair her ability to work. The Board’s conclusions regarding the non-probity of VA and private examinations in December 2010 due to prior and subsequent treatment records undermining the Veteran’s self-reports and presentations at those examinations and hence rendering those examinations non-probative based on their reliance on the Veteran’s non-credible self-reports and demonstrations of incapacity, also substantially apply to the findings and conclusions of subsequent VA examiners to the extent these examiners have relied on the Veteran’s self-reports of incapacities of demonstrations of incapacities. However, the subsequent VA examiners also substantially concluded that the Veteran’s reported or demonstrated incapacities were primarily due to non-service-connected causes. VA treatment records unrelated to physical disabilities also provide strong evidence of absence of need for aid and attendance of another, absence of being homebound, and absence of work incapacity. At an April 2017 VA social work visit, the Veteran reported that she would be taking her whole family on a vacation for a couple of months when she got her back pay. At an August 2017 VA mental health treatment visit, the Veteran informed that she was a kindergarten volunteer where her granddaughter goes to school, adding that this gets her out of bed each day and results in her feeling she has accomplished something. A January 2019 psychological evaluation informed that she was currently home schooling her son. These self-reports undermine her statements and demonstrations regarding physical infirmities and incapacities to perform work or work-like activities by documenting the Veteran’s beliefs in her capacities in engaging in activities such as vacationing for multiple months and her demonstrations of capacities by volunteering at a school and home-schooling her son. At a February 2019 VA social worker visit the Veteran expressed frustration waiting on VA for her claims, explaining that she would like to buy land where she would be able to build things because she really loves woodworking. She added that this would allow her to “get out and build stuff that would be handicap accessible.” These statements inform that the Veteran does not perceive herself to be physically incapable of working, undermining such a portrayal at her June 2018 hearing before the undersigned. At that social worker visit, the Veteran expressed that she had significant difficulties with depression and poor sleep habits, including principally sleeping late, and that these interfered with her engaging in tasks. She did not then express such limitations in performing tasks related to her service-connected fibromyalgia, knee disabilities, or asthma. Also at that February 2019 social worker visit, the Veteran reported that she was waiting on her aid and attendance claim to be able to get help with housework. This undermines her statements in support of claim to the effect that she required aid and attendance to assist with activities of daily living. Assistance with housework is not a valid basis for an aid and attendance claim. The Board has carefully reviewed the record and finds the weight of the evidence against the Veteran needing the regular aid of another for activities of daily living due or to protect herself from the hazards of her everyday environment. VA examination findings reflect that other disabilities and not the Veteran’s service-connected disabilities are implicated in difficulties the Veteran may have in performing some activities of daily living such as cleaning herself. The May 2014 VA examiner’s finding that the Veteran’s right-side weakness in the upper and lower extremities was inconsistent with usual findings of fibromyalgia points to an unidentified physical condition or a psychological condition unrelated to the Veteran’s service-connected fibromyalgia, knee conditions, and asthma. The Veteran’s morbid obesity, depression, PTSD, and insomnia also contribute to impairment that is not related to the Veteran’s service-connected disabilities. Predominant roles in the Veteran’s impairment played by the Veteran’s psychological conditions and morbid obesity were found by the May 2014 and April 2015 VA examiners. Inconsistent reporting and demonstration of incapacities by the Veteran also weigh against the Veteran having the debilitating level of impairment she reports, and thus weigh heavily against the Veteran needing regular aid of attendance of another due to service-connected disabilities. In a February 2019 VA treatment record, the examiner wrote that the Veteran was capable of independence and had good hygiene. The May 2020 VA respiratory examiner did not find the Veteran’s exercise-induced asthma to limit her work functioning, and hence her asthma would also be unlikely to result in her needing aid and attendance of another. The Veteran’s statement at an August 2017 mental health treatment that she volunteers at her granddaughter’s school informs that she is not housebound and that she engages in work-like activity. Similarly, the Veteran’s report at a January 2019 psychological evaluation that she is home schooling her son reflects her engaging in a vocational activity, albeit an unpaid one. The Veteran’s report at a May 2020 respiratory examination of developing shortness of breath with lifting and moving objects informs that her other disabilities do not preclude her from lifting and moving objects, informing that she is neither wheelchair bound nor otherwise significantly physically incapacitated by her fibromyalgia and knee disabilities. At the May 2014 VA knees examination, despite reporting constant use of a wheelchair, the Veteran reported that she could stand for no more than 15 to 20 minutes due to knee pain and thus required assistance with household chores. This reporting of standing limitation associated with the knees is clearly inconsistent with and contradictory of her report of requiring constant use of a wheelchair. The reported need for a wheelchair thus is most likely associated with psychological issues, as already identified, rather than due to her fibromyalgia, knees, or asthma. Accordingly, the Board finds more credible and hence entitled to greater weight, the conclusions of the examiner in a March 2015 addendum, that the Veteran is limited in her ability to walk to 5 to 10 minutes, and that such limitation is due to multiple issues including her morbid obesity and psychological issues. An ability to stand for 15 to 20 minutes at a time and to walk for 10 to 15 minutes informs of ability to perform activities of daily living and protect herself from hazards of her daily environment, without preclusion of such activities by her service-connected fibromyalgia, knee disabilities, and asthma. Upon careful review of the evidence of record, the Board finds the weight of the evidence to be consistent with findings of the May 2014 and April 2015 VA examiners to the effect that the Veteran’s predominant disabilities are psychological, and a significant physical limitation is her morbid obesity and not her fibromyalgia, her knees, and/or her exercise-induced asthma. The Board finds the contrary statements by the Veteran and her partner not credible, as substantially contradicted by the Veteran’s statements of her walking a dog for exercise, her volunteering at her granddaughter’s school and home-schooling her son, and her becoming short of breath when lifting and moving objects. The Board finds the weight of competent and credible evidence against the Veteran being wheelchair-bound or otherwise in regular need of aid and attendance of another to perform activities of daily living or to protect herself from the hazards of her everyday environment. More specifically, the Board finds the weight of the evidence against the Veteran’s service-connected fibromyalgia, asthma, and disabilities of each knee causing her to be unable to dress or undress herself, or keep herself ordinarily clean and presentable; to be unable to adjust any prosthetic or orthopedic appliances she may have (no such need has been alleged); to be unable to feed herself; to be unable to attend to the wants of nature; or to be unable to protect herself from the hazards or dangers incident to her daily environment. Hence, the Board finds the weight of the evidence against the Veteran needing the regular aid of another for these purposes due to her service-connected disabilities, and the weight of the evidence is thus against her claim of entitlement to SMC. Regarding work capacity, in an April 2010 Social Security Administration form reporting past work history, added to the record in August 2014, the Veteran reported performing administrative/office work in the military as well as in two subsequently held positions. A VA vocational rehabilitation case manager in August 2011 found that achievement of a vocational goal was not currently reasonably feasible but identified as reasons for this not only multiple disabling conditions but also negative attitudes and withdrawal from society, which are not part of the Veteran’s service-connected disabilities. The disabling conditions identified included not only the Veteran’s asthma and fibromyalgia, but also arthritis affecting multiple joints and depression. In short, the case manager’s findings and conclusions do not support work incapacity due solely to service-connected disabilities. Regarding the Veteran’s education, training, skills, and work history, the Veteran has completed three years of college, studying graphic design, film production, and electronic engineering. She reported performing administrative/office work in the military as well as in two subsequently held positions. The ability to attend three years of college demonstrates a capacity for learning, training, and adaptation that is not hindered by her service-connected disabilities and which would facilitate a return to substantially gainful employment. As to the Veteran’s physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences chronic pain associated with her fibromyalgia and bilateral knee disability and shortness of breath associated with her asthma, which would cause difficulty performing prolonged standing and walking, and the Veteran would not be able to perform postural maneuvers such as kneeling, crawling, or repetitive bending. However, credible clinical findings reflect the Veteran’s ability to perform work, as she has been able to volunteer at school and home-school her son. VA treatment records document that the Veteran’s gait was stable in September 2016, February 2018, and February 2020. The totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level. The Department of Labor’s Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT’s definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering the definition for purposes of deciding this claim. The Veteran’s treatment records and the limitations ascribed by VA examiners indicate that the Veteran is capable of sedentary work with the ability to periodically switch positions for comfort. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran’s mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran’s volunteering at her grandchild’s school and homeschooling her son demonstrate her ability to interact and communicate appropriately with others, and she has been consistently described as cooperative and pleasant in VA treatment records throughout the appeal period. The Veteran has recorded generally normal findings on mental status examination with normal behavior and cognitive functioning, including full orientation, good insight and judgment, a coherent, logical, and goal-oriented thought process, and no evidence of psychosis, delusions, or perceptual disturbances. As the Veteran’s service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence shows that the Veteran was mentally capable of performing substantially gainful employment during the relevant period. The Board also finds the weight of the evidence against the Veteran being incapable of obtaining or sustaining desk work due to her service-connected disabilities, inclusive of work she has done in the past, such as telephone work or other administrative work performed seated or with some associated ambulation. The weight of the evidence is against the Veteran’s service-connected disabilities precluding such work, which is a substantially gainful form of work and which she has performed in the past during active duty and outside of active duty. The Veteran can converse well and easily, and her reported or demonstrated physical limitations due to service-connected disabilities have been substantially undermined by observed actions and her self-reports in other contexts, as already discussed. This is consistent with conclusions in the March 2015 addendum to the May 2014 examination, when the Veteran was observed to be very comfortable and conversant with the examiner over the course of examination and the examiner concluded that the Veteran’s impairments in total, not merely her service-connected disabilities, would not preclude such office-type work. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of her education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, the Veteran’s service-connected disabilities would not preclude her from jobs that involve data entry, and the Veteran has reported past work in computers. With data entry, the Veteran is primarily responsible for entering data into a system. These jobs can usually be done from home without significant training or experience. This occupation requires very little exertional effort and would allow the Veteran to change positions as needed. Additionally, there are jobs that can be performed at home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, would require minimal exertional activity, and would allow the Veteran to change positions as needed. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to her service-connected disabilities during the relevant period. The Board finds no exceptional or unusual circumstances related to the Veteran’s service-connected disabilities which would result in her being incapable of securing or performing substantially gainful employment, and hence referral for extraschedular consideration is not warranted. The Board has considered interval grants of the claimed benefits but concludes that there are not intervals during the claim period during which entitlement to the claimed benefits is supported, with the preponderance of the evidence against, and hence an interval grant of benefit is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.