Citation Nr: 1648519	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  15-10 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU).

2.  Entitlement to special monthly compensation based on the need for aid and attendance or housebound status.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from August 1944 to July 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied, in pertinent part, the Veteran's claim of entitlement to special monthly compensation based on the need for aid and attendance or housebound status ("SMC claim").  A Travel Board hearing was held at the RO in December 2015 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.

In February 2016, the Board took jurisdiction over the Veteran's TDIU claim and remanded this appeal to the Agency of Original Jurisdiction (AOJ) for additional development.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (discussing TDIU claims).  

This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation.

2.  The Veteran is not so helpless as to be in need of regular aid and attendance of another person and is not permanently housebound due to his service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2016).

2.  The criteria for SMC based on the need for the regular aid and attendance or housebound status have not been met.  38 U.S.C.A. §§ 1114(l), 1114(s), 1502 (West 2014); 38 C.F.R. §§ 3.102, 3.350(b), 3.351, 3.352 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. 

Prior to initial adjudication of the Veteran's claims, a letter dated in June 2014 fully satisfied the duty to notify provisions of the VCAA.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The Veteran was provided with additional notice in March 2016.

With respect to the duty to assist, the Veteran's service treatment records and VA treatment records have been associated with the claims file. The Veteran also was provided with VA examinations, the reports of which have been associated with the claims file.  The examiners provided well-reasoned rationale for the opinions expressed.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board noted in its February 2016 remand that there were several pending service connection claims which had to be adjudicated by the AOJ before the Board could consider the Veteran's TDIU and SMC claims on appeal because all of these claims were inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).  The Board also directed the AOJ to adjudicate these pending service connection claims before readjudicating the Veteran's TDIU and SMC claims.  The AOJ adjudicated the pending service connection claims in a February 2016 rating decision before readjudicating the Veteran's TDIU and SMC claims in September 2016.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision.  They also have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced the Veteran in the adjudication of these issues.  Accordingly, the duty to assist has been fulfilled.

TDIU

A TDIU is governed by 38 C.F.R. § 4.16 which provides that such a rating may be assigned where the schedular rating is less than total, and 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, this 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. § 4.16 (2016). 

The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2016).

The Board finds that the preponderance of the evidence is against granting the Veteran's TDIU claim.  In this case, the Veteran contended in his formal application for TDIU benefits that he was unemployable solely as a result of his bilateral knee disabilities.  He also has related his unemployability to non-service-connected residuals of a stroke which ended his employment as a security guard in approximately 2004.  For the reasons described below, the Board concludes that a TDIU is not warranted. 

Service connection is in effect for the following disabilities: PTSD, evaluated as 50 percent disabling effective October 20, 2015; bilateral hearing loss, evaluated as 30 percent disabling effective October 20, 2015; right knee degenerative joint disease with osteophytes, evaluated as 10 percent disabling effective February 20, 2008; and for tinnitus, evaluated as 10 percent disabling effective October 20, 2015.  The Veteran's combined disability evaluation for compensation is 70 percent effective October 20, 2015; thus, the Veteran currently meets the scheduler criteria for a TDIU.  See 38 C.F.R. § 4.16(a) (2016).

The Veteran reported on his formal TDIU application in March 2016 that he was unemployable due to "bilateral knees."  He explained that his knees had affected his ability to work in January 2004 and forced him to retire in May 2004 when he became too disabled to work.  The Board notes in this regard that service connection is in effect only for the right knee.  In September 2014, the Veteran had a VA examination of his right knee and the examiner concluded that his service-connected right knee disability did not impact his ability to work.  

With respect to the Veteran's remaining service-connected disabilities, the Board notes that, on VA hearing loss and tinnitus DBQ in January 2016, the Veteran complained that "sometimes words can sound the same" when asked to describe the functional impact of his service-connected bilateral hearing loss and tinnitus.  At the Veteran's VA psychiatric examination in January 2016, the Veteran stated that, following service, he worked for a utility company for approximately 21 years in the warehouse and then at an oil refinery for about 15 years.  He retired at age 58 1/2 from the oil refinery and then worked in different security companies until he finally retired in 2004 after he had a stroke.  The Veteran also stated that he had finished high school and had 1 year of college education.  The VA psychiatric examiner concluded that the Veteran's service-connected PTSD only resulted in an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks.  

The Board is persuaded by the conclusions of the various examiners, as detailed above, and finds that that the Veteran is not unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Indeed, it appears that the Veteran, as he himself has indicated, is unemployable due to other non-service connected disabilities.  The evidence shows that the Veteran retired in approximately 2004 following a stroke but service connection is not in effect for a stroke or any residuals.  The Board acknowledges that the Veteran does not have much formal education, yet the evidence shows that his education level presented no material barriers to his employment because his employment history indicates that he worked steadily between his service separation and his final retirement following the 2004 stroke.  The Board also acknowledges that the Veteran continues to be treated for his service-connected right knee disability but the September 2014 VA examiner persuasively concluded that this disability did not impact his employability.  

The Veteran is competent to state what effects he believes his service-connected disabilities have on employment.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Nevertheless, the record does not show that the Veteran is precluded from performing any substantial gainful employment as a result of his service-connected disabilities.  As indicated, while the right knee is impaired, the September 2014 VA knee and lower leg conditions DBQ, indicates that his service-connected right knee disability did not impact his ability to work.  And, although the Veteran's bilateral hearing is impaired, he only reported that he occasionally had problems hearing because words sometimes sounded the same to him which suggests that his service-connected bilateral hearing loss does not interfere with his employability.  Finally, the service-connected PTSD only resulted in an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks.  The Board concludes that the VA examiners' opinions regarding the Veteran's employability are more probative than his competent lay statements regarding the impact of his service-connected disabilities on his employability.

In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board concludes that the criteria for a TDIU have not been met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

SMC

Special monthly compensation based on the need for aid and attendance of another is payable when the 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.A. § 1114 (l) (West 2014); 38 C.F.R. § 3.350 (b) (2016).

Anatomical loss or loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. For example, extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more, will constitute loss of use of the hand or foot involved. Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.  38 CFR § 3.350(a)(2).

The question concerning loss of use "is not whether amputation is warranted but whether the [Veteran] has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance."  Tucker v. West, 11 Vet. App. 369, 373 (1998).

Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet.  Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility.  38 CFR § 3.350(a)(4).

As directed by 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 herself or to keep himself or herself 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 (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself 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.

"Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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.  38 C.F.R. §§ 3.350(b)(4), 3.352(a).

It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others.  38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996).  Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.  38 CFR § 3.352(c).

Special monthly compensation is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  Regarding subsection (s)(1), a grant of TDIU based on a single disability constitutes a service-connected disability rated as total for purposes of section 1114(s).  Bradley v. Peake, 22 Vet. App. 280, 293 (2008).  Regarding subsection (s)(2), a Veteran is "permanently housebound" when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to permanent disability or disabilities, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime.  38 U.S.C.A. § 1502(c); 38 C.F.R. § 3.351(d)(2).

The Board finds that the preponderance of the evidence is against granting the Veteran's SMC claim.  The Veteran asserted in a March 2014 statement that his vision and ability to walk were very limited.  The probative medical evidence shows, however, that the Veteran does not require the regular assistance of another person and is not permanently housebound as a result of his service-connected disabilities, which include PTSD, bilateral hearing loss, right knee degenerative joint disease with osteophytes, and tinnitus.

The September 2014 VA aid and attendance or housebound examination showed that the Veteran's need for aid and attendance was related to visual and orthopedic conditions attributable to a non-service-connected stroke which occurred in approximately 2004.  The Veteran reported at this examination that he stayed at home, although he left his house for medical appointments accompanied by a family member, and used a walker due to limitations on standing and walking.  He also reported left eye blindness.  The VA examiner stated that the Veteran was not permanently bedridden.  This examiner also stated that the Veteran experienced stroke residuals in terms of residual right side weakness and had right shoulder pain and limited motion and low back pain which affected his mobility.  This examination noted that the Veteran experienced weekly but less than daily dizziness, short-term memory loss, limitations in his activities of daily living, and needed assistance for bathing, getting up from bed, and transferring.  His functional impairments were permanent.  

The Board acknowledges that the Veteran experiences significant residual disability as a result of a non-service-connected stroke in 2004.  The most probative medical evidence (the September 2014 VA examination) shows that the Veteran does not require regular aid and attendance and is not permanently housebound as a result of his service-connected disabilities.  Furthermore, the Board notes that the Veteran's TDIU claim has been denied.  As such, he does not have a single service-connected disability rated as 100 percent along with additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems (as is required for SMC at the housebound rate).

The Board notes that the Veteran is competent to offer his opinion that his service-connected disabilities require him to need for the regular aid and attendance of another person and render him permanently housebound.  See Layno, 6 Vet. App. at 470.  Nevertheless, the most probative medical evidence (the September 2014 VA examination report) discussed above shows that the Veteran has significant limitations in performing his activities of daily living as a result of non-service-connected disabilities and does not leave his home except for medical appointments accompanied by a family member.  In other words, the September 2014 VA examination report does not show that the Veteran needs the regular aid and attendance of another person or is permanently housebound as a result of his service-connected disabilities.  This examination report indicates instead that the Veteran's need for aid and attendance is attributable to non-service-connected stroke residuals and orthopedic disabilities.

In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran does not require the regular aid and attendance of another person and is not permanently housebound as a result of his service-connected disabilities. Accordingly, the Board concludes that the criteria for SMC have not been met.  38 U.S.C.A. §§ 1114, 1115; 38 C.F.R. §§ 3.350, 3.352


ORDER

Entitlement to a TDIU is denied.

Entitlement to SMC based on the need for aid and attendance or housebound status is denied



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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