Citation Nr: 21042722 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-46 827 DATE: July 13, 2021 ORDER Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) after March 1, 2012 is denied. Entitlement to a total disability rating based on individual unemployability prior to November 4, 2019 is denied. FINDINGS OF FACT 1. While the Veteran has been assigned a total rating based on individual unemployability, he does not have a single disability rated 100 percent. The Board finds that the evidence does not support a finding that the Veteran is factually shown to be confined to his home, immediate surroundings, or institutionalized or otherwise met the criteria for an award of housebound benefits.. He had a temporary total rating in early 2012 that qualified him briefly for SMC at the housebound rate. 2. The Board finds that the pertinent and more probative evidence of the record does not demonstrate that the Veteran's service connected disabilities prior to November 4, 2019 alone were of sufficient severity to render him unable to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for SMC at the housebound rate after March 1, 2012 are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.350. 2. The criteria for a total disability based on individual unemployability prior to November 4, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.1, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to February 1965 and from October 1968 to June 1988. This matter was most recently Remanded by the Board in September 2020. Development has been accomplished and the above issues are now before the Board. Initially, as pertaining to the Veteran's claim, in an April 2021 rating decision, service connection was granted for erectile dysfunction. The Veteran's claim of service connection for erectile dysfunction is no longer before the Board. The Veteran is also service connected for a total rating disability based on individual unemployability effective November 4, 2019 for coronary artery disease with valvular heart disease and status-post aortic valve replacement, left lower extremity radiculopathy, right lower extremity radiculopathy, and lumbar and cervical spine disorders. Nothing herein should be taken as impacting that award. Special Monthly Compensation Housebound benefits are warranted if, in addition to having a single permanent service connected disability rated 100 percent disabling under VA's Schedule for Rating Disabilities the Veteran (to include one single disability which results in a TDIU): (1) has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or, (2) is "permanently housebound" by reason of disability or disabilities. The "permanently housebound" requirement is met when a Veteran is substantially confined to his or 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. 38 C.F.R. § 3.351 (d). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). TDIU The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). This cannot be awarded by the Board in the first instance, but only considered after a preliminary referral to the Director of the Compensation service. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.34, 4.16, 4.19. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Substantially gainful employment is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). 1. Entitlement to SMC at the housebound rate after March 1, 2012 The Veteran was assigned SMC at the housebound rating from January 26, 2012 to March 1, 2012. The basis of the award was that he had a temporary total rating for that period to following back surgery, with other disorders rated 60 percent or more. The question presented is whether there is any basis to extend or continue that rating. It is noted that there is of record, and unappealed Board decision that denied extension of the temporary total rating as of March 1, 2012. After March 1, 2012, the Veteran is service connected for the following disorders: CAD at 10 percent from January 23, 2014 and 60 percent from November 4, 2019; right upper extremity at 20 percent from November 3, 2011; left upper extremity radiculopathy at 20 percent from November 3, 2011; left lower extremity radiculopathy at 20 percent from November 3, 2011; lumbar spondylosis at 20 percent from March 1, 2012; cervical spondylosis; cervical spondylosis at 10 percent from July 1, 1988; chronic bronchitis at 0 percent from July 1, 1988; hypertension at 0 percent from November 3, 2011; erectile dysfunction at 0 percent from November 3, 2011; scar residuals from CAD at 0 percent from November 3, 2011; scar of the lumbar spine at 0 from January 26, 2012. At no time was he shown to be so disabled as to be unable to leave his home and immediate premises. Here, a TDIU has been assigned for the Veteran's combined service-connected disabilities, effective November 4, 2019. The TDIU included service connection for the following: coronary artery disease at 60 percent; left lower extremity radiculopathy at 20 percent; right lower extremity radiculopathy at 20 percent; cervical spondylosis, at 10 percent; and lumbar spondylosis at 20 percent. Therefore, the Veteran does not have either a 100 percent rating for a single service-connected disability or a TDIU that is predicated upon a single disability, as the TDIU is predicated upon multiple disabilities. As a result, the Board next considers whether the Veteran has been permanently or substantially confined to his home as a result of his service-connected disabilities to warrant SMC at the housebound rate. In an August 2013 VA heart examination, the examiner diagnosed the Veteran with coronary artery and vascular heart disease. The examiner noted surgical scarring which was neither painful nor unstable. METs was noted at 5 to 7 which indicates that the Veteran is capable of activities such as golfing without a cart, walking a flight of stairs, mowing the lawn with a push mower, and heavy yard work such as digging. Regarding functional and occupational limitations, the examiner noted that the Veteran is capable of sedentary work, but not physical labor. In an August 2013 VA neck examination, the examiner diagnosed the Veteran with cervical spondylosis and degenerative disc disease of the vertical spine. The Veteran reported nightly cervical pain relieved by prescribed medication. The Veteran did not report the use of assistive devices or hospitalizations for his neck disorder. Regarding functional and occupational limitations, the examiner noted that the Veteran's neck disorder does not impact his ability to work. In an August 2013 VA back examination, the examiner diagnosed the Veteran with lumbar spondylosis and radiculopathy. The Veteran reported pain in the lumbar spine and radiculopathy radiating to the left leg numbing the greater toe which is relieved by prescribed medication. The Veteran reported the occasional use a brace and the constant use of a cane. Regarding functional and occupational limitations, the examiner noted that the Veteran the Veteran is capable of sedentary work. In a January 2014 VA heart examination, the examiner diagnosed the Veteran with coronary artery disease and valvular heart disease. The Veteran did not report any hospitalizations for the treatment of his heart disorder. Mets was noted at 3 to 5 which indicates that the Veteran can perform light yard work such as weeding, moving the lawn with a power mower, and briskly walk four miles per hour. Regarding functional and occupational limitations, the examiner noted that the Veteran's heart disorder does not impact his ability to work. The examiner noted that the Veteran retired in 2011 as a Court bailiff. The examiner also noted that the Veteran has been receiving SSA disability benefits since August 2013 for his low back disorder. In a January 2014 VA back examination, the examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. The Veteran reported pain and spasms in the lumbar spine and radiculopathy radiating to the left leg which is relieved by prescribed medication. The Veteran reported the regular use of assistive devices. The Veteran did not report any hospitalizations for the treatment of his low back disorder. Regarding functional and occupational limitations, the examiner noted that the Veteran's low back disorder impacts his ability to perform physical labor. In a January 2014 VA neck examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran did not report the use of any assistive devices or any hospitalizations for his neck disorder. In a November 2019 VA scar examination, the examiner diagnosed the Veteran with a linear midsternal chest scar residuals of a coronary artery bypass. The examiner noted that the Veteran's scar is neither unstable nor painful. The Veteran did not report any hospitalizations for the treatment of his scar disorder Regarding functional and occupational limitations. The examiner noted that the Veteran's chest scar does not impact his ability to work. In a November 2019 VA male reproductive examination, the examiner diagnosed the Veteran with erectile dysfunction and benign prostatic hyperplasia. Regarding functional and occupational limitations, the examiner noted that the Veteran's erectile dysfunction disorder does not impact his ability to work. In a November 2019 VA hypertension examination, the examiner diagnosed the Veteran with hypertension. Regarding functional and occupational limitations, the examiner noted that the Veteran's hypertension does not impact his ability to work. In a November 2019 VA heart examination, the examiner diagnosed the Veteran with coronary artery disease with valvular disease. The Veteran did not report any hospitalizations for the treatment of his heart disorder. Mets was noted at 3 to 5 which indicates that the Veteran can perform light yard work such as weeding, moving the lawn with a power mower, and briskly walk four miles per hour. Regarding functional and occupational limitations, the examiner noted that the Veteran's heart disorder impacts his ability to work as the Veteran is unable to walk long distances or perform strenuous activities due to his coronary artery bypass grafting. In a November 2019 VA back examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine and spinal stenosis. Regarding functional and occupational limitations, the examiner noted that the Veteran's low back disorder impacts his ability to work as the Veteran is unable to walk or stand for extended periods of time. The examiner also noted that the Veteran is not able to bend or carry heavy loads. In a November 2019 peripheral nerve examination, the examiner diagnosed the Veteran with peripheral neuropathy of the upper and lower extremities. The Veteran reported using a walker as an assistive device. `Regarding functional and occupational limitations, the examiner noted that the Veteran's peripheral neuropathy impacts his ability to work as the Veteran is unable to walk or stand for extended periods of time. The examiner also noted that the Veteran is not able to bend or carry heavy loads. In a January 2019 VA neck examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran did not report the use of any assistive devices for his low back disorder. Regarding functional and occupational limitations, the examiner noted that the Veteran's neck disorder does not impact his ability to work. In a November 2019 statement of unemployability, the examiner noted that the Veteran could perform sedentary work in a job which requires him to exert ten pounds of force occasionally and involves sitting with limited standing or walking. In a March 2021 VA male reproductive examination, the examiner diagnosed the Veteran with erectile dysfunction and benign prostatic hyperplasia. Regarding functional and occupational limitations, the examiner noted that the Veteran's erectile dysfunction disorder does not impact his ability to work. To summarize, the record reveals that despite his service connected disorders, the Veteran has not been housebound since March 1, 2012. The Board acknowledges that the Veteran experiences a number of service connected disorders that impact his overall health. However, his service-connected disorders do not render him permanently or substantially confined to his dwelling and the immediate premises. In-fact, the examiner findings since March 1, 2012 do not indicate any periods of hospitalizations for the treatment of his disorders or that the Veteran is bedridden. Moreover, the Veteran has not submitted any evidence that he is permanently or substantially confined to his home or bed, nor is he so helpless as a result of his service-connected disabilities. Furthermore, examiner opinions have determined that while the Veteran is unable to perform highly strenuous activities, he is capable of performing activities which would not confine him to his home or immediate premises. There is no evidence in the record to support a finding that the Veteran is incapable of operating a vehicle, traveling distances, or engaging in social or recreational activities away from his dwelling. Therefore, as the preponderance of the evidence is against the SMC claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim for SMC based on housebound status must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a total disability rating based on individual unemployability prior to November 4, 2019. The Veteran contends that his service connected disabilities prior to November 4, 2019 rendered him unable to maintain employment. The Veteran submitted a December 2019 compensation claim based on individual unemployability. At the time, the Veteran reported he was last employed fulltime as a loss prevention supervisor at a retail company in August 5, 2008. The Veteran also reports that he underwent a heart valve replacement in 2018 and experienced residual heart "abrasions" in 2019. He also reports that he underwent a left toe amputation in 2019. Prior to November 4, 2019, the Veteran is service connected for the following: disorder coronary artery disease at 30 percent from November 3, 2011 and 10 percent from January 23, 2014; radiculopathy of the right upper extremity at 20 percent; radiculopathy of the left upper extremity at 20 percent from November 3, 2011; radiculopathy of the left lower extremity at 10 percent from July 1, 2018 and 20 percent from November 3, 2011; lumbar spondylosis at 0 percent from July 1, 1988, at 10 percent from November 3, 2011, 100 percent from January 26, 2012, and 20 percent from March 1, 2012; cervical spondylosis at 10 percent from July 1, 1988; chronic bronchitis from at 0 percent from July 1, 1988; hypertension at 0 percent from November 3, 2011; erectile dysfunction at 0 percent from November 3, 2011; scar residuals of CAD 0 percent from November 3, 2011; and a lumbar spine scar at 0 percent. As the Veteran had combined neurological and orthopedic impairment that combined to 70 percent as of March 1, 2012 he reasonably met the schedular criteria as of that date. It is noted that the total rating was assigned at such time as cardiovascular impairment was clinically shown to have significantly worsened. May 2010 private treatment records reveal that the Veteran's cardiac symptoms were stable, however the examiner noted that the Veteran reported that he was going to undergo orthopedic surgery for his low back problems. October 2011 private treatment records reveal that the Veteran was diagnosed with possible early congestive heart failure. December 2011 private treatment records reveal that the Veteran complained of low back pain and shortness of breath. The examiner diagnosed significant spondylosis disease. January 2012 private treatment records reveal that the Veteran underwent a back surgery for his low back pain. February 2012 private treatment records reveal that in a follow-up appointment the Veteran reported that his right leg neuropathy had resolved itself since undergoing his low back procedure. In an August 2013 VA heart examination, the examiner diagnosed the Veteran with coronary artery and vascular heart disease. His history has included bypass grafting and aortic valve replacement surgery. The examiner noted surgical scarring which was neither painful nor unstable. METs was noted at 5 to 7 which indicates that the Veteran is capable of activities such as golfing without a cart, walking a flight of stairs, mowing the lawn with a push mower, and heavy yard work such as digging. Regarding functional and occupational limitations, the examiner noted that the Veteran is capable of sedentary work, but not physical labor. In an August 2013 VA neck examination, the examiner diagnosed the Veteran with cervical spondylosis and degenerative disc disease of the vertical spine. The Veteran reported nightly cervical pain radiation relieved by prescribed medication. The veteran did not report the use of assistive devices. Regarding functional and occupational limitations, the examiner noted that the Veteran's neck disorder does not impact his ability to work. In an August 2013 VA back examination, the examiner diagnosed the Veteran with lumbar spondylosis and radiculopathy. The Veteran reported pain in the lumbar spine and radiculopathy radiating to the left leg numbing the greater toe which is relieved by prescribed medication. The Veteran reported the occasional use a brace and the constant use of a cane. Regarding functional and occupational limitations, the examiner noted that the Veteran is capable of sedentary work. In a January 2014 VA heart examination, the examiner diagnosed the Veteran with coronary artery disease and valvular heart disease. METs was noted at 3 to 5 which indicates that the Veteran can perform light yard work such as weeding, moving the lawn with a power mower, and briskly walk four miles per hour. Regarding functional and occupational limitations, the examiner noted that the Veteran's heart disorder does not impact his ability to work. The examiner noted that the Veteran retired in 2011 as a Court bailiff. The examiner also noted that the Veteran has been receiving SSA disability benefits since August 2013 for his low back disorder. The award had been dated to 2008, with a finding that while the Veteran had worked since that time, it had not been in more than marginal employment. SSA records show that heart, back, fibromyalgia, and sleep apnea were among the multiple disabilities upon which the SSA determination was based. In a January 2014 VA back examination, the examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. The Veteran reported pain and spasms in the lumbar spine and radiculopathy radiating to the left leg which is relieved by prescribed medication. The Veteran reported the regular use of assistive devices. Regarding functional and occupational limitations, the examiner noted that the Veteran's low back disorder impacts his ability to perform physical labor. In a January 2014 VA neck examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran did not report the use of any assistive devices for his low back disorder. Regarding functional and occupational limitations, the examiner noted that the Veteran's low back disorder does not impact his ability to work. The Board finds that while the Veteran's service connected disabilities render him unable to perform certain types of labor; nonetheless, the evidence of record does not show he is rendered unable to physically or mentally secure or follow substantially gainful employment as a result of his service-connected disabilities prior to November 4, 2019. As indicated in the record, the Veteran reported a lengthy employment history as a loss prevention supervisor at a retail company and had some subsequent employment as a court bailiff. It is not, therefore shown that he was precluded from some more sedentary employment, and it is not shown that he left the job due to service connected disability. Overall, the record indicates that the Veteran's post-service work experience is such that the impairment caused by his service-connected disabilities would not prevent him from securing and following substantially gainful employment for the time in question. This clearly changed when the cardiovascular impairment got worse and there was radiation into the right leg, further hampering mobility. As the records shows, although the Veteran's low back and heart disorders present some functional and occupational limitations which preclude the Veteran from physically laborious job functions, there is no indication that the Veteran is incapable of performing light sedentary work of a non-laborious nature prior to November 4, 2019. The Board has determined that prior to November 4, 2019, nothing suggests symptoms outside the norm for rating the service connected disorders during the entire period on appeal. Moreover, the evidence of record does not reveal that he presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization due to his service connected disorders so as to render impractical the application of extra-schedular consideration for his service connected disabilities. After a full review of the record, the Board finds that the evidence is against the Veteran's claim for TDIU prior to the date currently assigned. As discussed above, the pertinent evidence of record does not demonstrate that the Veteran's service connected disabilities, alone, are of sufficient severity to render him unable to secure or follow substantially gainful employment at any time during this appeal period. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harris, Michael E. 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.