Citation Nr: 21028701 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-20 094 DATE: May 11, 2021 ORDER The appeal for increased ratings for coronary artery bypass graft residuals is dismissed. The appeal for a compensable rating for bilateral hearing loss is dismissed. A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) as of February 19, 2014, but not earlier, is granted. REMANDED Entitlement to special monthly compensation based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019, is remanded. FINDINGS OF FACT 1. At the February 2021 Board of Veterans' Appeals (Board) hearing, the Veteran expressly withdrew the appeals for increased ratings for coronary artery bypass graft residuals and bilateral hearing loss. 2. As of February 19, 2014, service connection had been established for coronary artery bypass graft residuals rated 60 percent; renal failure rated 60 percent; and bilateral hearing loss and a chest scar rated 0 percent. The Veteran had a combined service-connected disability rating of 80 percent. 3. As of February 19, 2014, but not earlier, the service-connected disabilities were of such severity as to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for increased ratings for coronary artery bypass graft residuals are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for a compensable rating for bilateral hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for TDIU as of February 19, 2014, but not earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1970 to January 1972. He served in the Republic of Vietnam. The Veteran appeared at a February 2021 virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. In February 2020, the Agency of Original Jurisdiction granted a 100 percent schedular rating for coronary artery bypass graft residuals, effective December 23, 2019, and special monthly compensation at the housebound rate, effective from February 8, 2017, to May 31, 2017, and as of December 23, 2019. Withdrawal At the February 2021 Board hearing, the Veteran expressly withdrew the appeals for increased ratings for coronary artery bypass graft residuals and bilateral hearing loss. He was specifically informed and acknowledged that the issues would no longer be on appeal and would be dismissed in light of the withdrawal. A veteran or authorized representative may withdraw a substantive appeal in writing at any time prior to the Board's promulgation of a decision. 38 C.F.R. § 20.205. The Board finds that the Veteran has effectively withdrawn the appeals for increased ratings for coronary artery bypass graft residuals and a compensable rating for bilateral hearing loss. Therefore, the Board concludes that no allegation of fact or law remains as to those issues and the appeal must be dismissed. 38 U.S.C. § 7105. Entitlement to TDIU prior to December 23, 2019 TDIU may be assigned where the schedular rating is less than total if it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Initially, the Board observes that a combined 100 percent schedular rating was in effect from February 8, 2017, to May 31, 2017. The receipt of a combined 100 percent schedular rating does not make the issue of entitlement to TDIU moot where the award of TDIU based on a single disability may result in the Veteran being eligible for higher levels of compensation, specifically special monthly compensation based on the need for regular aid and attendance or at the housebound rate under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). As of February 19, 2014, service connection was established for coronary artery bypass graft residuals rated 60 percent; renal failure rated as 60 percent; and bilateral hearing loss and a chest scar rated 0 percent. The Veteran had a minimum combined service-connected disability rating of 80 percent as of February 19, 2014. Therefore, the Veteran met the schedular criteria for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(a). An August 2014 VA treatment record states that a service-connected cardiovascular disability made "gainful employment not possible for the Veteran given the advanced nature of his medical condition, nor will it likely ever be possible again based on the progressive nature of his vascular disease." In the September 2014 Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran reported that he had last been employed on a full time basis in April 2011. An October 2019 vocational assessment from S. Fisher, M.A., states that the Veteran "is severely impacted by his service-connected coronary artery disease, renal failure, and bilateral hearing loss;" "his symptoms have prevented him from following even the very basic requirements of competitive employment since he last worked full time in 2011;" and "at that time, the Veteran experienced back to back heart attacks and has not returned to work since." As of February 19, 2014, the service-connected disabilities had a minimum combined 80 percent rating. The August 2014 VA treatment record and the October 2019 private vocational evaluation concluded that the service-connected disabilities alone prevented the Veteran from finding or maintaining any form of substantially gainful employment. The Veteran has reported having last been employed on a full time basis in April 2011. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected disabilities alone cause the Veteran to be unable to secure or follow a substantially gainful occupation as of February 19, 2014, but not earlier. Therefore, the claim for TDIU as of February 19, 2014, but not earlier, is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS FOR REMAND Entitlement to special monthly compensation based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019, is remanded. The Veteran asserts that special monthly compensation based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019, is warranted as the service-connected disabilities resulted in the need for regular aid and attendance of another individual to perform activities of daily living, made him permanently housebound, and/or met the criteria for special monthly compensation at the housebound rate. Because of the award above of entitlement to TDIU as of February 19, 2014, the Board finds that the issue of entitlement to special monthly compensation prior to February 8, 2017, and from June 1, 2017, to December 22, 2019, should be readjudicated. In addition, the Board notes that the condition that the Veteran described at the February 2021 hearing suggested that the impairment had increased since the most recent aid and attendance and housebound examination in December 2019. Also, that examination appears to have only considered the service-connected heart disability, and not the effects of the service-connected renal failure, bilateral hearing loss, and chest scar. Therefore, the Board finds that more current examination is needed which considers the service-connected heart disability, renal failure, bilateral hearing loss, and chest scar. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA aid and attendance or housebound examination with an examiner who has not previously examined the Veteran. The examiner must review the claims file and should note that review in the report. The examiner should consider the combined effects of the service-connected heart disability, renal failure, bilateral hearing loss, and chest scar. The examiner should opine whether the Veteran (1) is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) has a 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); (3) is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; (4) is unable to attend to the wants of nature; or (5) has incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment; (6) is bedridden by the service-connected disabilities which, through their essential character, actually require that the claimant remain in bed; (7) is so helpless as to need regular aid and attendance, not that there be a constant need; (8) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (9) is a patient in a nursing home because of mental or physical incapacity; or (10) is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 2. Readjudicate entitlement to special monthly compensation based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Hutcheson, 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.