Citation Nr: 21031244 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 11-06 424 DATE: May 21, 2021 ORDER New and material evidence has been presented and the claim of entitlement to service connection for a low back condition is reopened. Service connection for a low back condition is denied. Service connection for a cervical spine disability is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to September 29, 2005 is denied. FINDINGS OF FACTS 1. The April 1986 rating decision denying the Veteran's claim for service connection for a low back condition is final. 2. Evidence received since the April 1986 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claims for service connection of a low back disability. 3. The Veteran's lumbar sprain, which clearly and unmistakably existed prior to service, was not noted upon entry, and clearly and unmistakably was not aggravated beyond its natural progression. 4. The Veteran has current diagnoses of lumbar degenerative disc disease, osteoarthritis, and stenosis, and his current back disorders are separate and distinct from the lumbar sprain which preexisted service, and the weight of the evidence indicates that they were not incurred in or are related to any event or injury in service. 5. The weight of the evidence of record does not support a positive nexus between the Veteran's current cervical spine condition and any event or injury in service. 6. The Veteran has need of the regular aid and attendance of another person due to his service-connected disabilities. 7. Prior to September 29, 2005, the preponderance of the evidence does not indicate that the Veteran was prevented from securing and following substantially gainful employment consistent with his education and work history due to service-connected disabilities. CONCLUSIONS OF LAW 1. The April 1986 rating decision denying the Veteran's service connection claim for low back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence pertaining to the Veteran's low back condition has been submitted, and the Veteran's claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service aggravation for a low back condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.306, 3.309. 4. The criteria for service connection for a cervical spine disability, to include degenerative disc disease, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for special monthly compensation based on the need for regular aid and attendance have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. 6. Prior to September 29, 2005, the criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to September 1969. This matter is on appeal to the Board of Veterans' Appeals (Board) from December 2006 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office. It was previously remanded by the Board in March 2015 and May 2018. The Veteran testified before a Veterans Law Judge (VLJ) at a July 2017 Board hearing. During the pendency of his appeal, the Veteran was notified of the VLJ's retirement in a February 2021 correspondence, in which he was given 30 days to respond as to whether he desired another Board hearing. As of date, no response has been provided by the Veteran. The Board may now proceed with adjudication. Reopening a Claim Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Veteran's service connection claim for a low back disability was denied by an April 1986 rating decision. Since the Veteran failed to file a timely appeal, that decision became final. At the time of the April 1986 rating decision, the record consisted of service treatment records, suggesting that the condition had resolved. Evidence received since the April 1986 rating decision includes new private treatment records showing a current low back disability. For example, in November 2006, the Veteran submitted a statement in support of claim, asserting that he began having back trouble prior to his September 1969 discharge from service. He also sustained back injuries in November 1968 while he was in Da Nang, Vietnam, when he fell from a forklift due to an explosion. He also stated that his back pain persisted beyond 1970. A June 2008 imaging report revealed mild degenerative changes at the L4-5 facet joints in the lower lumbar spine. The Veteran also submitted medical treatise evidence in November 2008 regarding low back pain. He was also provided a new VA examination in November 2012 pertaining to his low back disability. The Board finds that such evidence is considered new and material evidence pertaining to his service connection claim for a low back disability. Accordingly, the service connection claim for a low back disability is reopened. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disease or illness manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain "chronic diseases" may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303 (b). Low Back Disability It is the Veteran's contention that he sustained a back disability as a result of his military service that persisted and developed into a chronic condition. He asserted that he first filed a claim for back trouble in August 1969, prior to his exit from service. He was thrown off a forklift after an explosion in Da Nang and sustained a back injury. Since then, his duties required him to lift full body bags, which contributed to the worsening of his condition. See November 2006 statement, July 2017 Hearing Transcript. Service treatment records show that upon entry into service, it was noted on the Veteran's April 1967 Report of Medical History that he had suffered a preexisting back sprain. A November 1968 record showed that the Veteran complained of low back pain that had persisted for 4 days after heavy lifting. In February 1969, it was noted that the Veteran complained of pain when walking, centered in the low back area. Three days later, he returned for a recheck after a locker had fell on him. An evaluation revealed loss of lumbar lordosis, with straight leg test positive at 30 degrees. His Report of Medical Examination in September 1969, however, did not report any clinical abnormalities pertaining to his spine. The Veteran underwent an examination in November 1970, which noted his history of a low back condition. Despite the Veteran's complaint, the examiner found no objective findings of a back disability, also noting negative results from a lumbar spine X-ray. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. The burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. Id. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. Id. at 240. In this case, the Veteran's Report of Medical History indicated that he had a preexisting complaint of a back sprain, which had been described as 'occasional, but not severe.' However, his April 1967 entrance examination report did not identify a preexisting condition of the low back. No clinical abnormalities were found regarding his spine. Thus, the Board finds that the Veteran's low back condition is not 'noted,' at entrance into service, and the presumption of soundness at entry into service attaches. 38 U.S.C. § 1111. As the Veteran's current back condition was not noted at the time of entry into service, VA has the burden, by clear and unmistakable evidence, to show both a) the disorder preexisted service, and b) the preexisting disorder was NOT aggravated in/during service. Approximately 30 years post service, the Veteran underwent an examination in March 1997, which found no costovertebral angle tenderness or spinous process tenderness elicited. VA treatment records reported complaints of chronic back pain in June 2004. In June 2008, the Veteran's radiographic result showed some mild degenerative changes at the L4-5 facet joints in the lower lumbar spine. In October 2009, the Veteran's scan of his spine revealed average Bone Mineral Density is 1.214 g/cm2 of Hydroxyapatite. The Veteran was afforded a VA examination in November 2012. In reviewing the claims file, the VA examiner noted that the Veteran's report of medical history documented a preexisting back sprain. The Veteran reported that he was blown off a forklift by a missile fire, causing him to fall and land on his head and back in November 1968. His service treatment records showed a visit for a low back pain due to "heavy lifting," in November 1968. He was treated conservatively with medicine and supportive measures. Subsequent records documented two other visits in February 1969, and another follow up appointment 3 days later for low back pain that was again, treated conservatively. The Veteran asserted that he continued to experience progressive low back pain ever since. The VA examiner noted that post service, the Veteran suffered from quadriplegia from cervical spinal stenosis, in which the Veteran underwent surgery in 1997. In conclusion, the November 2012 VA examiner found that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. In his rationale, the examiner noted that the Veteran has been diagnosed with degenerative disc disease of the lumbar spine and osteoarthritis of the lumbar spine. While he had two episodes of low back pain during service, neither entry described a severe fall (from a forklift) as the Veteran reported. A VA examination conducted shortly after service reflected a normal back examination, with normal X-rays. The Veteran has a concomitant history of cervical spine stenosis which caused partial quadriplegia (weakness in all 4 extremities). However, his strength testing during the November 2012 evaluation was good, bilaterally, while sitting, although he demonstrated a balance problem. Overall, there is no documentation of a fall or traumatic event in the service treatment records and no recurrent medical visits for his back after 1970 until the 1990s which made his symptoms rather remote. August 2017 lumbar spine imaging results revealed secondary degenerative anterior spondylotic disc protrusions from T-10 through S-1, with degenerative articular facet arthropathy changes of the respective articular facets at L4-5 and L5-S1, bilaterally with changes more significant in the L4-5. When the matter came to the Board in May 2018, it was remanded so that the additional treatment records and Social Security Administration records could be obtained. The Veteran was also to be afforded another VA examination to determine the etiology of his current low back condition. The Board notes however, that when an examination was scheduled, the Veteran canceled his visit, indicating that he no longer wished to attend the examination and instead submitted a statement in support of claim, stating that he preferred the adjudication with the existing evidence in the claims file. See September 2019 VA Memo. Upon reviewing the record, the Board finds that service connection is not warranted for the Veteran's current back disability. The Veteran has consistently argued that his current lumbar spine disability had resulted from service. It is clear from the record that the Veteran has a current degenerative lumbar spine disability. However, he has not provided medical opinion that would support a positive nexus, showing that his preexisting back sprain had aggravated beyond its natural progression by his service. He has, submitted various medical articles regarding long term back pain. The Board observes that medical treatise evidence can, in some instances, constitute competent medical evidence. Wallin v. West, 11 Vet. App. 509, 514 (1998). But medical evidence that is speculative, general, or inconclusive in nature cannot, however, support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). This general information does not pertain to this particular symptoms and etiology of this disease of this specific Veteran. Thus, the Board assigns the article little probative weight, which is outweighed by the evidence of record discussed above. Therefore, the Board must rely on the medical evidence or record, namely the November 2012 VA examination report. Upon reviewing the negative nexus opinion, the Board finds that the Veteran's current degenerative lumbar spinal condition developed several years after service and is a separate and distinct disability than his preexisting back sprain. Thereby, showing that the Veteran's back sprain was not aggravated beyond its natural progression by his military service. The November 2012 VA examiner found that the Veteran's preexisting back sprain had clearly and unmistakably existed prior to service and that it was not aggravated beyond its natural progression by an in-service injury. Despite the Veteran's complaints of back pain in service, caused by heavy lifting and an injury caused by a locker, it was not shown that the Veteran sustained any worsening of the preexisting sprain. By the time of his separation from service, the Veteran did not exhibit any clinical abnormalities suggesting ongoing or worsening of the back sprain. Moreover, the examiner noted that the Veteran currently suffers from documented degenerative disc disease with foraminal stenosis and central canal stenosis of the lumbar spine, which was diagnosed several years after service. The Veteran's main contention is that the condition was caused by a severe fall from a forklift after an explosion in Da Nang. However, his service treatment records do not support his assertion. While back pain was clearly noted on three occasions, it did not result from a fall as described by the Veteran. Furthermore, subsequent treatment records and his medical examination at separation did not report any ongoing problems with his back. As such, the Board finds that that there is clear and unmistakable evidence that the Veteran's low back loss was not aggravated beyond its natural progression in service. The Board acknowledges that arthritis is a chronic disorder, and when such a disorder is diagnosed during active duty service, or within a year of such service, or there is a continuity of symptomatology for such a disorder since service, service connection can be granted on a presumptive basis. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1336 (Fed. Cir. 2013). In this case, however, the appellant was not diagnosed with arthritis of the spine in service or for many years after separation from service, and this presumption is not applicable in the current case. The Board has also considered the Veteran's lay statements. Although it recognizes that the Veteran is competent to describe his observable symptoms of back pain, he is not competent to opine as to the etiology of this disability as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the lay opinion that the Veteran's current low back disorder is related to his in-service injury do not constitute competent medical evidence and lack probative value. For these reasons, the Board finds that there is no competent and probative medical evidence to show a worsening of the Veteran's preexisting back sprain during active duty service, Moreover, the Veteran has not met his burden to show an increase or aggravation of a back disability during active service. With no competent evidence to show an increase in severity of the back disability during service, the presumption of aggravation does not arise. and the Veteran's current back disorder, diagnosed as degenerative disc disease, osteoarthritis, and stenosis, is a separate back disorder that was not incurred in service and is not related to any event or injury in service. The claim is denied. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cervical Spine Disability The Veteran contends that his current cervical spine condition had resulted from injuries sustained during his active duty service. He stated that in November 1968, he was blown off a forklift by an explosion during enemy attack. He was examined by a medic but was sent back to work. Then, in August 1969, he filled out a VA Form 21-526, documenting his injuries as he had been experiencing physical problems from his service. By 1996, he became incapacitated due to the old injury to his back and neck. He was told by his physician that he sustained severe trauma to the spinal column at 3 different levels. See Correspondence dating July 2001. At his 2017 Board hearing, the Veteran testified that he injured both his back and neck after falling from the forklift at the time of the explosion. However, he acknowledged that he had only filed a claim for a low back condition shortly after service. Service treatment records reflected complaints of low back pain but did not document any injuries or complaints of pain to his cervical spine. His separation examination in September 1969 reported no clinical abnormalities pertaining to his spine, including his neck. Moreover, a November 1970 VA examination reported no issues of the cervical spine. In January 1997, the Veteran was diagnosed with cervical myelopathy. It was noted that given the Veteran's hyperreflexia, the positive Babinski and positive Hoffman's test, the results were highly suspicious. In February 1997, the Veteran was presented for surgery for anterior cervical discectomy and fusion at the C5-6 level, secondary to herniated nucleus pulposus with marked spinal cord compression and myelopathy. The Veteran had reported a 13-month history of progressive weakness of the upper extremities and lower extremities, bilateral hand numbness, difficulty ambulating, and increased urinary urgency and frequency. His condition ultimately resulted in quadriplegia. By November 2004, VA treatment records noted that the Veteran has a history of cervical stenosis from post-traumatic arthropathy with some cervical burning pain, whole body pain, and severe pain in the low back and legs. However, the examining physician did not provide any opinion on its etiology. In an April 2009 VA examination for aid and attendance, the VA examiner noted that the Veteran has C3-5 tetraplegia due to cervical stenosis with severe functional impairment due to spasticity and limited motion of his upper and lower extremities. It was also noted that tetraplegia is not caused by or a result of the Veteran's service-connected diabetes mellitus. The Board notes that in attempts to assist the Veteran in his claim, the matter was remanded by the Board most recently in May 2018 to afford him a VA examination so that the etiology of his cervical spine disability may be determined. However, after scheduling an evaluation, the Veteran canceled his appointment and expressed that the claims file contained sufficient evidence to adjudicate his claim. A review of his service treatment records do not support the Veteran's contention that he sustained a chronic neck problem or a traumatic injury to his cervical spine, including an incident when he was thrown off a forklift. The Board finds that the weight of the evidence does not support a positive nexus between the Veteran's current cervical spine disability and his military service. While there were a few recorded entries of back pain, there was no specific documentation of injury to his neck or chronic pain of his cervical spine. The Veteran has consistently stated that he suffered a traumatic injury to his neck when an enemy explosion caused him to fall from a forklift. He even asserted that he was seen by a medic and went back to work immediately. However, service treatment records do not reflect any complaints of a neck pain sustained from a fall. At the time of his separation from service, an examination revealed no clinical abnormalities pertaining to his spine. The Board therefore finds that the Veteran's reports of injuring his cervical spine in a fall from a forklift in service are not credible. In reaching this conclusion, the Board considered the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the Federal Circuit determined that the Board had erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case is distinguishable, as the Veteran's service treatment records do record instances of back pain, but the circumstances under which this occurred are very different from the assertion of the Veteran, and the Board finds these records, written at the time of the Veteran's service, are more probative than his memories of an event that happened decades in the past. The very severe type of injury that the Veteran has described is also the type of injury that would be normally extensively treated and documented in the service treatment records, were such an injury to have occurred. Additionally, the Board is relying on normal in-service examination findings at the September 1969 separation examination, which provides highly probative evidence regarding whether the Veteran had a traumatic neck injury or disorder in service. The absence of findings of an abnormal cervical spine pathology in service, coupled with the absence of any documented complaint of neck problems approximately 30 years after service weights against finding of a chronic cervical spine disorder in service. Post service, the earliest documentation of a cervical spine condition was in 1997, where in which the Veteran told his physician that he had been experiencing increasing pain over the course of 13 months. He was promptly diagnosed with cervical myelopathy and received extensive treatment, including surgery. Treatment records pertaining to his cervical spine disability did not suggest that his condition is traceable to his active duty. He has not submitted any favorable medical opinion or record that would indicate that his condition was caused by an in-service injury. The Board again notes that while arthritis is a chronic disorder, there is no evidence indicating that the Veteran was diagnosed with spinal arthritis in service or for many years after service, and this presumption is not applicable. See 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1336. In reaching this decision, the Board acknowledges that, while the Veteran is competent to report injury and symptoms, he is not competent to link his current cervical spine disorder to service, as he lacks the requisite medical expertise. While a layperson is competent to report observable symptomology and diagnose a simple medical condition, the specific issue in this case falls outside the realm of a layperson's knowledge. See Jandreau, 492 F.3d at 1377. Accordingly, the Board assigns them no weight. Additionally, similar to his claim for a low back disability, the Veteran has asserted that he submitted medical articles that would support his service connection claim. However, the Board finds that the medical article merely explains the nature of the disability and does not relate to the specific facts of the case, nor does it assist in supporting a positive nexus between the Veteran's condition and his in-service fall. Accordingly, the preponderance of the evidence is against the claim of service connection a cervical spine disability. Therefore, the benefit of the doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. at 54-56. Special Monthly Compensation for Aid and Attendance The Veteran is currently seeking special monthly compensation for aid and attendance. Special monthly compensation based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, is so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Pursuant to 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or to keep himself 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; (3) the inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. A veteran need shows only one of the enumerated factors identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Moreover, it is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. See id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of the household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Having reviewed the record, the Board finds that special monthly compensation based on the need of aid and attendance is warranted. The Veteran is service connected for posttraumatic stress disorder (PTSD) at 100 percent, diabetes mellitus at 40 percent, hypertensive retinopathy at 20 percent, hypertension at 10 percent, peripheral neuropathy of the left arm at 10 percent, peripheral neuropathy of the right arm at 10 percent, and peripheral neuropathy of the left and right leg, each at a noncompensable rating. Based on a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance dating September 2009, the Veteran follows a diabetic diet due to his service-connected diabetes mellitus. The examining physician noted that the Veteran is able to feel himself but requires assistance in preparing his meals. He also requires the regular assistance in bathing and tending to other hygiene needs due to his diminished motor strength and spasticity and poor coordination. While he does not require nursing home care, he does require the regular assistance of medication management. The Veteran has been experiencing diminished motor strength and spasticity due to his bilateral upper extremity neuropathy. He is unable to button his clothes, shave, bathe or dress himself. Additionally, the neuropathy in his bilaterally lower extremities causes difficulty with standing or walking and causes decreased motor strength and poor coordination. He is unable to leave his home only with assistance of another individual. VA treatment records in March 2015 indicated that the Veteran requires assistance with activities of daily living. He expressed difficulties with preparing meals, performing housework, shopping, managing money, transportation, managing his medication and finances. More specifically, he requires help with bathing, dressing, and, moving around in the bed. More recently treatment records found no improvement in the Veteran's condition. VA treatment records in April 2020 for a wellness check noted that the Veteran reported difficulty with getting his medication refilled in a timely manner. He indicated that his power wheelchair was broken, limiting his ability to move around. He stated that he was unable to get in and out of the bathtub for showers, having to resort to complete his hygiene care at the bedside. In June 2020, a VA assessment and plan indicated that the Veteran was requesting assistance in many aspects of his life. It was noted that the Veteran requires a new power wheelchair, has consulted a physician regarding prosthetics, requesting a home health aide. It was suggested by the attending physician that the Veteran could benefit from home-based primary care. The Board notes that the Veteran has asserted that his range of motion and general movement has also been limited by his neck and back disability. As the Board has denied the Veteran's claims, he is not currently service connected for a lumbar or cervical spine disability, and they cannot be considered when making this determination. However, even without considering the Veteran's physical limitations caused by his nonservice-connected back and neck disabilities, his overall condition caused by his service-connected disabilities result in significant difficulty that requires the need of regular aid and attendance. For these reasons, the Board finds that special monthly pension based on the need of regular aid and attendance of another person is warranted, and the claim is granted. Entitlement to a TDIU prior to September 29, 2005 The Veteran is currently seeking an effective date earlier than September 29, 2005 for the grant of a TDIU. The Board affords the Veteran the benefit of the doubt and assumes that his claim for a TDIU was submitted in conjunction with the award of service connection for PTSD, which was granted ratings of 10 percent from June 16, 1997, 30 percent from April 21, 2004, and 50 percent from September 28, 2005, in July 2005 and October 2005 rating decisions. The period on appeal to be considered is therefore June 16, 1997 to September 28, 2005. As a general matter, TDIU may 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 disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. However, even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), referral to the Director, Compensation Service for extraschedular consideration of a TDIU is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(b). In response to the May 2018 Board remand which referred this issue, the Director of Compensation Service issued a December 2020 Advisory Opinion regarding extraschedular consideration for TDIU prior to September 29, 2005 under 38 C.F.R. § 4.16(b). It found that the totality of the evidence did not support the contention that due to the Veteran's service-connected disabilities, he was rendered unable to secure or follow a substantially gainful occupation prior to September 28, 2005. Because this issue has been previously adjudicated by the Director of Compensation Service, the Board now has jurisdiction to decide the issue on the merits. The Veteran filed his TDIU application in August 2006, indicating that he stopped working full time on October 1, 1990, due to his service-connected disabilities. He wrote that he had been working full time as a security guard, but since then, he had been unable to obtain employment. He submitted a copy of his Social Security Administration earnings record showing income from 1964 to 2003. In support of his claim, the Veteran's spouse submitted a statement that the Veteran had not been able to hold a stable job, only having only 2 to 3 jobs over the last 10 to 15 years. Prior to September 29, 2005, the Veteran was service connected for service connection has been established for PTSD (10 percent from June 16, 1997 and 30 percent from April 21, 2004), diabetes mellitus (20 percent from May 8, 2001), and right and left lower extremity peripheral neuropathy (0 percent from May 8, 2001). He had a total evaluation of 10 percent from June 16, 1997, 30 percent from May 8, 2001, and 40 percent from April 21, 2004, which did not meet the schedular criteria for a TDIU. Unfortunately, there is inadequate evidence of record to establish that the Veteran was unable to maintain gainful employment during this period due to his service-connected disabilities. The Veteran reported on his August 2006 VA Form 21-8940 that he was unable to work since August 31, 1990, due to "multiple disabilities," and reported no employment information. Instead, he provided a copy of his Social Security Administration (SSA) earnings record for the period between 1964 to 2003. Although the earnings record shows minimal income for most years, the Veteran's incomplete employment history, including his self-employment, does not allow for an accurate evaluation and interpretation of the earnings data. In March 2011, SSA determined that the Veteran's mood disorder did not render him unable to perform substantially gainful work activity. The Veteran's initial December 1992 PTSD examination indicated that the examiner was unable to examine the Veteran as he refused to cooperate. The examiner attempted to reschedule the examination with the Veteran, but the Veteran cancelled the appointment. An August 2001 VA examination for diabetes mellitus did not show that his condition at the time preclude him from employment. Unlike his TDIU application, the Veteran indicated to the VA examiner that he had not work since 1996 due to his cervical stenosis with radiculopathy. The examiner reported that the Veteran was treated with an oral hypoglycemic agent and that his diabetes was not well controlled. The examination did not indicate that any impact on employment due to his diabetes was found. Later examination for diabetes mellitus dating May 2006 and June 2006 reported that the Veteran was treated with oral hypoglycemic agents and insulin with no restriction of activities required. Examiners reported that the condition did not result in any lost time from work or functional impact on his employment. At his September 2005 VA psychiatric examination, the examiner reported that the Veteran was unemployed. He wrote that he had previously worked in law enforcement and had been self-employed, and that he last worked for Wells Fargo approximately 3 years prior to the examination date. The examiner wrote that the Veteran reported having conflicts with coworkers and supervisors, but his many medical problems also interfered with his ability to effectively handle employment. The examiner noted that PTSD caused functional impairment, through symptoms such as flashbacks, nightmares, anger, irritability, and marked isolation. The Veteran has been previously awarded entitlement to a TDIU from September 29, 2005, the date of this examination. The Veteran's VA treatment records show that in March 1997, while hospitalized for neck treatment, he reported having extreme anxiety and was noted to have a diagnosis of PTSD. In a May 1999 VA treatment record, it was noted that the Veteran has a high school degree. He told his physician that he had previously worked in law enforcement but has been employed over the past 5 years. He also indicated that he was not interested in vocational counseling or rehabilitation. In December 2001, the Veteran was dysthymic and anxious, and reported having anger and anxiety during prior hospital stays. In April 2004, the Veteran reported having anger that was easily triggered, having flashbacks. At a separate treatment session that month, the Veteran reported having chronic depression that was now less of a problem, and having stress related to his wife's illness. He also reported poor sleep and problems with chronic back, neck, and leg pain. At other treatment sessions, the Veteran was noted to have problems with chronic pain. After reviewing all of the evidence, the Board finds that entitlement to a TDIU prior to September 29, 2005 is not warranted. While the evidence shows that the Veteran's PTSD did cause him anger and anxiety, and his diabetes mellitus with peripheral neuropathy required medication and restricted diet, there is no probative medical evidence indicating that these disorders prevented the Veteran from obtaining or maintaining gainful employment consistent with his education and work history. The question of employability is ultimately one for the Board, as the fact finder, to decide, the findings of the VA examiners provide highly persuasive evidence regarding whether the Veteran's symptoms would cause any significant occupational impairment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this case, the Board finds a lack of any probative medical evidence which indicates that the Veteran's service-connected disabilities during this period prevented him from working, and even in his own self-reporting to his treatment providers and the VA examiner, he never indicated that PTSD, diabetes, or peripheral neuropathy prevented him from working. While the Veteran's later statements to VA argue that his service-connected disabilities prevented him from working well before 2005, this is not supported by any of the contemporaneous medical evidence, which the Board finds more probative than the later assertions of the Veteran. The preponderance of the evidence shows that while the Veteran was not working during much of this period, this was due to a neck disorder, and not due to his service-connected disabilities. The Veteran's VA treatment records show that since 1997, his primary health impairment was due to cervical stenosis and myelopathy, and the Veteran himself reported to the August 2001 examiner that this was the reason he stopped working. In June 1997 and March 1998 Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance, the Veteran was noted to have serious problems with strength, endurance, and coordination, and required a walker and wheelchair due to his cervical myelopathy. This disorder is not service-connected, however, and the impact that it had on his ability to work cannot be taken into consideration at this time. In sum, the most probative evidence shows that the combined impact of the Veteran's PTSD, diabetes mellitus, and right and left lower extremity peripheral neuropathy did not preclude gainful employment prior to September 29, 2005. The evidence preponderates against finding an exceptional picture which warrants extraschedular consideration of a TDIU. As the evidence preponderates against showing that the Veteran was unemployable during this period as a result of his service-connected disabilities alone, the claim is denied. The Board has again considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.