Citation Nr: 22017633 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-38 272A DATE: March 25, 2022 ORDER Entitlement to special monthly compensation (SMC) based on the regular need for the aid and attendance of another person is granted. The claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living on account of his service-connected disabilities. 2. The evidence is at least in equipoise on the question of whether the Veteran was unemployable due solely to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for SMC based on the regular need for the aid and attendance of another person are met. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 7104; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1969 to January 1971. His decorations and awards include, in part, the Purple Heart Medal and the Combat Infantry Badge. These matters were remanded by the Board in June 2018. The requested development has been accomplished, and they have returned to the Board for further appellate consideration. By an August 2018 rating action, the RO granted service connection for Muscle Group XX. This represents a complete grant of his appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. 1. SMC based on the regular need for the aid and attendance of another person is granted The Veteran seeks SMC based on the regular need for the aid and attendance of another person due to his service-connected disabilities, notably his residuals, shell fragment wound, right lumbar region, with injuries to Muscle Group XX and XXI. SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. "Bedridden" is defined as that condition, which, through its essential character, actually requires that a claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). The Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment on account of his service-connected disabilities, notably the residuals from his shell fragment wounds. There are several VA opinions that address the issue of whether the Veteran is in need of the aid and attendance of another person due to his service-connected disabilities. A February 2021 VA Aid and Attendance examination report (VA Form 21-2680) reflects that the Veteran complained of chronic severe back pain that contributed to his difficulty with prolonged sitting, standing, or walking. The examiner noted that the Veteran was unable to prepare his own meals and required assistance feeding himself, as well as assistance with bathing, dressing and personal hygiene. The Veteran was found not to have been legally blind or to require nursing home care. He was found to have required assistance with administering medication or with finances, paying bills, and money management. The examiner related that the Veteran had difficulty walking without a cane and supportive assistance from others due to an unsteady gait. Overall, the examiner noted that the Veteran was severely limited and was unable to lift, sit, or stand for any length of time without assistance due to back pain; he had poor balance; and he required assistance with activities of daily living. The Veteran was noted to have only traveled to attend doctor appointments as needed. The February 2021 VA examiner authored several addendum opinions in March, June, and September 2021. In an addendum opinion, dated March 11, 2021, the examiner concluded that the functional impairment caused by the established diagnosis of muscle injury status-post shell fragment wound on the Veteran's ability to perform the physical activities of employment, in regard to the muscle injuries due to shrapnel and chronic back pain, caused him difficulty with his ability to drive, walk, and perform activities of daily living. According to the examiner, there was no effect of the established diagnoses on sedentary activities of employment. See VA addendum opinion, dated March 11, 2021. In a subsequent opinion, dated in late March 2021, the VA examiner opined that the functional impairment caused by the established diagnoses on the Veteran's ability to perform physical activities of employment were, in regard to the chronic severe back pain, difficulty with prolonged sitting, standing, and walking without a cane, and supportive assistance from others due to an unsteady gait. See VA opinion, dated March 24, 2021. In an addendum dated June 16, 2021, the VA examiner reported that the Veteran's need of aid and assistance was due to severe pain from multiple back surgeries which began in 1970 with shrapnel injury to the right flank and continued with surgeries in 1994, 2004, 2005, and 2020 and had resulted in an inability to walk without assistance; shop; prepare meals; drive; manage finances and medications and/or dress himself due to severe pain. In an addendum opinion, dated in late September 2021, the examiner reported that the Veteran had a separate thoracolumbar spine disability that was not the result of the service-connected shell fragment wound to the muscle in the right lower flank area of the back. The examiner concluded that the two conditions were separate. See September 2021 VA opinion. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is in need of regular aid and attendance of another person due to the manifestations of his service-connected residuals, shell fragment wound, right lumbar region, injury Muscle Group XXI and residuals of Muscle Group Injury XX which require care or assistance on a regular basis to perform some daily activities. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to SMC based on the regular need for the aid and attendance of another person is warranted. SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. See 38 U.S.C. § 1114 (l), (s); 38 C.F.R. § 3.350 (i). Thus, the award of SMC at the aid and attendance rate renders the housebound issue moot. A TDIU rating is granted. The Veteran seeks entitlement to a TDIU. He contends that he unable to maintain substantially gainful employment due to his service-connected chronic obstructive pulmonary disease (COPD), chronic kidney disease, residuals, shell fragment wound, right lumbar region, injury Muscle Group XXI and residuals of Muscle Group Injury XX. TDIU may be assigned where the combined schedular evaluation for service-connected disabilities is less than total and the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 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). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his education and experience. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Essentially, in considering TDIU claims, the Board must fully consider a veteran's (1) history, (2) education, (3) skills, (4) training, and (5) physical and (6) mental ability. "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16 (a) comprises both economic and noneconomic components, which required consideration of a wide range of factors, and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, 30 Vet. App. at 148. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential non-physical employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a VA received the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, on April 8, 2020. The Veteran reported that he was unable to work secondary to his service-connected COPD, chronic kidney disease, residuals, shell fragment wound, right lumbar region, injury Muscle Group XXI and residuals of Muscle Group Injury XX. He reported that he had last worked from July 31, 2017 to October 27, 2017 as a Nuclear Operations Specialist. He related that he started employment at the nuclear power plant in July 2017, but was unable to maintain the position due to "service-connected disability." Thus, according to the Veteran, he stopped work after three (3) months. During the three months he was employed in October 2017, he reported having missed seven (7) to eight (8) days of work due to service-connected issues. The Veteran indicated that he returned to the power plant in February 2018 until mid-April 2018, at which time he quit because the power plant was unable to make any special accommodations due to the physical nature of the work. He reported that he had two years of college and training as a Nuclear Operations Specialist. At the time of receipt of the Veteran's claim for a TDIU rating to the present, the Veteran is service-connected for the following disabilities: (i) Kidney disease (evaluated as 60 percent disabling); (ii) COPD (evaluated as 30 percent disabling); (iii) residuals, shell fragment wound, right lumbar region, injury, MG XXI (evaluated as 20 percent disabling); (iv) Muscle Group XX Injury (evaluated as 20 percent disabling); and, (v) residuals, shell fragment wound, middle third right leg, MG XX (noncompensable rating). In this case, as the Veteran's kidney disease was rated at 60 percent and the combined evaluation was 80 percent, the percentage requirements set forth in 38 C.F.R. § 4.16 (a) for appeal period have been met. After consideration of the evidence of record, the Board will award a TDIU rating. In support of the Board's conclusion, in a January 2022 opinion, Z. F., Certified Rehabilitation Counselor, provided an opinion that is supportive of the claim. After a review of the record and interview of the Veteran, Z. F. reported that the Veteran was last employed from February to April 2018 in a contract position, but that he was absent eight to ten days due to his chronic back pain, breathing difficulties and increased irritation as a result of a rash due to his chronic kidney disease. Z. F. noted that the Veteran had required the assistance of his co-workers due to his physical limitations. Prior to his work in 2018, the Veteran was employed at the same company from July to October 2017 as a nuclear operations specialist. During this time, the Veteran was absent 30 days due to his conditions. Z. F. also reported that the Veteran had worked for another company as a nuclear operations specialist from September 2014 to October 2016. According to Z. F., the Veteran did not return to work for after the completion of his final contract, due to his significant limitations. Z. F. concluded, after a review of the Veteran's medical records as they related to limitations imposed by the service-connected low back, chronic kidney disease and COPD, that it was as likely as not that he had been unable to secure and follow substantially gainful employment, to include sedentary unskilled employment since at least October 2016. Z. F. opined that the Veteran had been unable to meet the basic requirements of all work, even work at the sedentary exertional level on a consistent and reliable basis due to service-connected low back and kidney disabilities and COPD since October 2016 as evidenced by the Veteran's symptoms and/or limitations from these conditions, to include, but not limited to, difficulty sitting, standing, and walking; chronic fatigue; shortness of breath with minimal exertion; the need for excessive unscheduled breaks; and severe limitations maintaining concentration, focus and pace. The Board finds the vocational expert, R.F.'s, report to be particularly probative and persuasive because it was based upon an interview with the Veteran and an extensive review of the entire record, and because the expert provides a thorough supporting explanation for his conclusions within the context of the progression of the Veteran's disabilities, as well as his work experience and education. Moreover, the medical evidence of record demonstrates that the Veteran's service-connected COPD, kidney and low back disabilities have greatly limited his ability to perform labor-intensive and sedentary tasks. R. F's opinion is supportive of the claim for TDIU and is uncontroverted. (Continued on the next page) Based on the foregoing, the evidence supports a finding that the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment that is consistent with his prior work history and level of education during the appeal period. Therefore, a TDIU is warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.