Citation Nr: 0813426 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 02-10 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a cardiac disorder with hypertension, to include as secondary to service- connected right knee disability. 2. Eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35. 3. Entitlement to special monthly compensation based on the need for aid and attendance or on account of housebound status. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The veteran had active military service from February 1982 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2001 and September 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In May 2005 and July 2007, the Board remanded the veteran's claims for additional development. As the Board explained in its July 2007 remand, the veteran was unrepresented at that time. Pursuant to the remand, the veteran was sent a letter in November 2007, by which he was afforded the opportunity to appoint a new representative. He did not respond to the letter. Thus he remains unrepresented in his prosecution of the claims on appeal. By an April 2006 decision, the RO awarded special monthly compensation at the housebound rate (38 C.F.R. § 3.350(i)) for the period from February 10, 2006, to May 1, 2006. Consideration of this question in the decision below excludes this period. FINDINGS OF FACT 1. The veteran does not have a cardiac disorder or hypertension that is attributable to his active military service; nor is it caused or made worse by service-connected disability. 2. The veteran does not have a permanent and total service- connected disability. 3. The veteran is not blind or nearly blind, or a patient in a nursing home. There is no factual need for aid or attendance of another person. 4. The veteran is not housebound, and he does not have a single service-connected disability rated as 100 percent with additional service-connected disability independently ratable at 60 percent involving different anatomical segments or systems. CONCLUSIONS OF LAW 1. The veteran does not have a cardiac disorder with hypertension that is the result of disease or injury incurred in or aggravated during active military service; a cardiac disorder with hypertension is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2007); 38 C.F.R. § 3.310 (2006). 2. Basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 has not been established. 38 U.S.C.A. § 3501 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.340, 3.807, 4.15, 21.3021 (2007). 3. The criteria for entitlement to special monthly compensation on account of the need for regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352 (2007). 4. The criteria for entitlement to special monthly compensation at the housebound rate have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.350 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification and development action needed to render a decision as to the claims on appeal has been accomplished. Through August 2001 and November 2007 notice letters, the RO notified the veteran of the information and evidence needed to substantiate a claim of service connection. An April 2002 statement of the case provided the regulations concerning secondary service connection. The November 2007 letter also provided notice of the information and evidence needed to substantiate a special monthly compensation claim, including on the basis of regular aid and attendance and housebound status. That letter also set forth the basic eligibility requirements for Chapter 35 education and training benefits. Moreover, in the November 2007 letter, the RO provided the veteran with the criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the veteran's claims, the claims were properly re-adjudicated in January 2008, which followed the November 2007 notice letter. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the August 2001 and November 2007 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the RO notified the veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letters requested the veteran to submit medical evidence, opinions, statements, and treatment records regarding his disabilities. The veteran was also told to send in any evidence in his possession that pertained to the claims. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issues on appeal. The veteran's service medical records have been obtained and associated with the claims file, as have treatment records from the VA Medical Center (VAMC) in Louisville, Kentucky. Additionally, the veteran was afforded a hearing before the Board in March 2005, the transcript of which is of record. Significantly, the veteran has not otherwise alleged that there are any outstanding medical records probative of his claims on appeal that need to be obtained. In June 2002, the veteran was provided a VA examination in connection with his service connection claim. Pursuant to the May 2005 remand, an additional medical opinion was obtained. A separate medical examination was not scheduled in connection with the special monthly compensation claim. Nevertheless, examinations in March 2006 that addressed the severity of the veteran's service-connected psychiatric and right knee disabilities provided sufficient evidence to decide the claim. Thus, VA has properly assisted the veteran in obtaining any relevant evidence. II. Analysis A. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In addition, certain chronic diseases, such as heart disease or hypertension, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2007)). The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the claimant. See 38 C.F.R. § 3.310 (2006). A review of the veteran's service medical records does not reveal a diagnosis of any chronic cardiac disorder or hypertension. However, two blood pressure readings in service were borderline elevated according to a July 2005 VA examiner. In June 1984, the veteran's blood pressure reading was 140/90 and an EKG revealed sinus bradycardia. In January 1985, the reading was 128/86. Post-service medical records show that the veteran was first treated for high blood pressure in October 2000. The veteran was admitted to the Louisville VAMC with a blood pressure reading of 200/116. He was diagnosed with hypertension. Since that time, the veteran has received regular treatment for hypertension at the Louisville VAMC and has been prescribed medication to control the condition. In February 2001, the veteran underwent a cardiac catheterization, which revealed normal coronary arteries. A July 2001 progress note reflects a diagnosis of controlled hypertension and stable cardiomyopathy. The veteran primarily contends that his current hypertension is a result of service-connected right knee disability. He was awarded service connection for right knee disability in October 2001, which was determined to be related to a right knee injury during military service. The veteran asserts that he gained weight after the right knee injury because he was unable to exercise due to the effects of the right knee disability. As a result, he contends, the excess weight has caused or has made worse his cardiac problems and hypertension. Besides the veteran's contentions, the only evidence relating to a nexus between the veteran's cardiac disorder with hypertension and his right knee disability is a June 2002 VA examination. In that examination, the veteran was diagnosed with hypertension and morbid obesity. The examiner opined as follows: It is unlikely that the veteran's hypertension was caused or permanently aggravated by his service-connected right knee disorder. As the right knee disorder does not preclude the veteran from reduction in dietary energy or doing exercise with his upper body or participating in rehab that could increase stability to do more lower extremity activity in order to increase his muscle mass. The veteran's risk of hypertension is greater being that he has a positive family history of the condition and this is [a] complication of obesity, which he has a positive family history of as well. The Board accords substantial probative value to the June 2002 VA examiner's opinion regarding the lack of a nexus between the veteran's current cardiac disorder with hypertension and his service-connected right knee disability. The opinion is competent as it was provided by an expert, and it was based on a review of the claims file with supporting rationale. There is no other competent medical evidence of record concerning a possible link between the veteran's cardiac disorder with hypertension and his service-connected right knee disability. Although the examiner implied that the veteran's weight complicated his high blood pressure, the examiner concluded that the service-connected right knee disability did not cause the complication. Therefore, based on the June 2002 VA examination report and the lack of competent evidence to the contrary, the Board finds that service connection is not warranted for a cardiac disorder with hypertension secondary to service-connected right knee disability. In the May 2005 remand, the Board remanded the issue for a medical opinion in order to determine if service connection is warranted on a direct basis. Pursuant to this request, the claims file was forwarded to a cardiovascular specialist at the Louisville VAMC for a nexus opinion concerning the veteran's current cardiac disorder with hypertension and his period of active military service. After a review of the claims file, the physician stated as follows: I find no evidence of signs or symptoms noted within the period of his military service or within one year of service indicating that he had hypertension or other evidence of cardiac disease while he did have two blood pressures that would be considered borderline elevated and at this point, these were recorded in 1984 and 1985 with the highest diastolic pressure being 90. It is also noteworthy that on the primary care visit, it indicates that the hypertension was newly diagnosed in 2000. In summary, the patient appears to have a cardiomyopathy, which was felt to be related to new onset of hypertension. A follow[-]up echocardiogram showed normalization of his left ventricular ejection fraction and he had no coronary artery disease on coronary angiography. Currently, [the veteran] does have hypertension requiring multiple medications for control. Other problems include obesity and probable obstructive sleep apnea. Based upon my review of his in- service blood pressure readings, there was no clinically significant elevation and there was no evidence that his medical condition during service was related to the diagnosis of hypertension first made in 2000. Patient does have a problem with obesity and possibly obstructive sleep apnea and both of these conditions can cause or aggravate high blood pressure. Similar to the opinion regarding secondary service connection, the Board finds that service connection is not warranted on a direct basis based on the July 2005 VA medical opinion. The physician did not find that the veteran's current hypertension was the result of his period of military service. He found that the borderline elevated readings in service were not related to the current diagnosis. There is no competent medical evidence of record to refute this finding. Therefore, based on the July 2005 VA medical opinion, the Board finds that service connection is not warranted for a cardiac disorder with hypertension on a direct basis. The Board also notes that there is no objective evidence that a cardiac disorder or hypertension manifested to a compensable degree within one year of the veteran's separation from service. As noted above, the first diagnosis of hypertension was not until October 2000, which was over fifteen years after his discharge. Thus, service connection is not warranted for a cardiac disorder with hypertension on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Board has considered the veteran's written contentions and hearing testimony with regard to his claim of service connection. While the Board does not doubt the sincerity of the veteran's belief that his cardiac disorder with hypertension is related to his service-connected right knee disability or to his time in service, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter-such as the etiology of a current disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), (citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992)). For all the foregoing reasons, the Board finds that the claim of service connection for a cardiac disorder with hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Basic Eligibility for Dependent's Educational Assistance For the purposes of Dependents' Educational Assistance under 38 U.S.C. Chapter 35, basic eligibility exists if, among other things, the veteran was discharged from service under conditions other than dishonorable conditions and the veteran has a permanent and total service-connected disability. 38 U.S.C.A. § 3501 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.807, 21.3021 (2007). The veteran's personnel records indicate that he was honorably discharged from military service. In February 2004, the veteran was awarded service connection for an adjustment disorder with depressed mood. The disability was initially evaluated as 30 percent disabling. In April 2006, after the veteran filed a claim for an increase, the RO included the diagnosis of depressive disorder as part of the service-connected psychiatric disability. Effective from December 22, 2005, a total (100 percent) rating was assigned. Although the veteran's service-connected psychiatric disability was evaluated as totally disabling, the RO did not find that the severity was permanent in nature. The RO based the total rating on a March 2006 VA psychiatric examination. In that examination report, the examiner found that the veteran experienced significant impairment from the symptoms of depression. However, the examiner did not provide a statement that the level of impairment was permanent in nature. That is, there was no evidence presented that the level of impairment was reasonably certain to continue throughout the veteran's life. See 38 C.F.R. §§ 3.340, 4.15 (2007). Subsequent mental health progress notes from the Louisville VAMC indicate that the veteran was more hopeful, had an improved mood, and was less depressed. It was noted that there was some progression in treatment. Thus, the medical evidence does not establish that the significant level of symptomatology evidenced during the March 2006 examination is permanent in nature. Without an indication that the veteran's total disability resulting from his service- connected psychiatric disability is permanent, basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is not met. In a January 2007 letter, the RO informed the veteran that he would be scheduled for an examination at a future date to evaluate the severity of his depressive disorder. If, at a future date, a service-connected disability becomes permanent and total, basic eligibility for this benefit can be reassessed. (The Board notes that the veteran has twice been awarded a total disability rating as a result of surgery on his service-connected right knee necessitating convalescence. See 38 C.F.R. § 4.30 (2007). Because total disability ratings under that provision are by definition temporary, the total rating cannot be the basis for basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35.) C. Special Monthly Compensation Special monthly compensation (SMC) is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. See 38 U.S.C.A. § 1114 (West Supp. 2007); 38 C.F.R. § 3.350 (2007). The veteran seeks SMC based on the need for regular aid and attendance of another person or on the account of housebound status. Increased compensation at the aid and attendance rate is payable when the veteran is helpless or so nearly helpless that he requires the regular aid and attendance of another person as the result of service-connected disabilities. 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2007); 38 C.F.R. § 3.350(b) (2007). To establish a need for regular aid and attendance, the veteran must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a) (2007). Bedridden is defined as a condition that, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran 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. Id. Increased compensation may also be received a the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i) (2007). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. Id. For purposes of housebound benefits, the Court has held that being substantially confined to the home, means an inability to leave to earn an income. Absent a regulation by the Secretary defining the term substantially confined, the Court held that the term may conceivably be more broadly construed. It found that Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Hartness v. Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (substantially confined means the inability to leave the house except in instances of seeking medical treatment). (The Board notes that the veteran was awarded SMC on a temporary basis from February 10, 2006, to May 1, 2006, as a result of meeting the general requirements for receipt of the housebound rate during that time period. Thus, the analysis that follows does not pertain to the time period when the housebound rate was already awarded.) The veteran is service connected for the following disabilities: depressive disorder and adjustment disorder with depressed mood, evaluated as totally disabling; right knee medial collateral ligament strain with laxity, evaluated as 10 percent disabling; and right knee medial collateral strain with degenerative joint disease, evaluated as 10 percent disabling. Thus, the veteran has been found to be totally disabled as a result of service-connected disability. Regarding the issue of aid and attendance, there is no indication that the veteran's service-connected psychiatric disability and right knee disabilities have caused him to be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. In November 2007, a fundoscopic eye examination was performed at the Louisville VAMC. The examination was normal. Thus, the requisite eye impairment has not been shown. Additionally, there is no indication that the veteran is a patient in a nursing home because of mental or physical incapacity. It is noted in the medical records that the veteran lives at home. Thus, the veteran is not so helpless to need aid and attendance under those criteria. The Board also finds that the evidence does not show a factual need for aid and attendance. It is not suggested by the VA treatment records and examination reports that the veteran has an inability to perform the activities of daily living, to include dressing, undressing, keeping ordinarily clean and presentable, feeding himself, and attending to the wants of nature. During a March 2006 VA orthopedic examination, the examiner found that the veteran's right knee disabilities impaired his mobility. However, with regard to daily activities, the examiner found that the impairment had no effect on feeding, bathing, dressing, toileting, or grooming. Although it was noted that the veteran was prevented from playing sports, the impairment only had a mild effect on traveling and a moderate effect on chores, shopping, exercise, and recreation. During a March 2006 VA psychiatric examination, the examiner found that the veteran suffered significant impairment from his major depressive disorder. Even so, the examiner noted that the veteran was able to maintain personal hygiene and other activities of daily living. VA treatment records confirm that the veteran does not have a factual need for aid and attendance. In an October 2007 record, the veteran had a screening for physical activity and activities of daily living. It was noted that the veteran exercises three times per week. It was also noted that the veteran had no problems with the activities of daily living. The medical records do not reflect that the veteran has loss of coordination of the upper extremities due to service- connected disability, or otherwise. The records show that the veteran utilizes a cane to ambulate. However, there is no suggestion that the cane requires frequent need of adjustment that cannot be done without aid. Furthermore, it is not shown that the veteran experiences physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. As noted above, the veteran has physical capabilities. Significantly, despite the severe level of mental impairment, the March 2006 psychiatric examiner found that the veteran could still perform his daily activities. That examiner also found the veteran competent to manage his financial affairs and VA benefit payments. Thus, mental incapacitation was not evidenced by the record. Additionally, aside from his temporary convalescence period after knee surgery, the evidence does not suggest that the veteran's disabilities require that he remain in bed or that he has been prescribed bed rest by a physician. Considering the evidence of record, a factual need for aid and attendance as a result of service-connected disability, or the necessary visual impairment or nursing home requirements, has not been evidenced. Accordingly, SMC on the account of the need for regular aid and attendance of another person is not warranted. With respect to the issue of housebound status, the veteran does not meet the general eligibility requirements. Although he has a single service-connected disability rated as total (depressive/adjustment disorder), he does not have additional service-connected disability or disabilities independently ratable at 60 percent or more. The veteran's other service- connected disabilities of the right knee are each evaluated as 10 percent disabling. Thus, the general requirements for housebound status are not met. Moreover, the evidence of record does not reflect actual housebound status. The March 2006 VA psychiatric examination made it clear that the veteran preferred to stay isolated at home. The March 2006 VA orthopedic examination showed that the veteran's right knee disabilities impaired his mobility. However, the combined effect of the disabilities did not render the veteran housebound. The orthopedic examiner noted that the veteran's right knee only mildly affected his travel. The psychiatric examiner noted that the veteran had been to court the day prior to the examination. Additionally, in an April 2005 treatment record, the veteran reported that he went to his son's school. Moreover, in an August 2007 progress note, the veteran reported that he went fishing with his son almost every evening. Thus, while the veteran's service-connected psychiatric disability and right knee disabilities cause impairment, the disabilities do not substantially confine him to his home. Without evidence of being substantially confined to the home, actual housebound status is not shown. Therefore, by the preponderance of the evidence, SMC on the account of housebound status is not warranted. ORDER Service connection for a cardiac disorder with hypertension is denied. Basic eligibility for Dependents' Education Assistance under 38 U.S.C. Chapter 35 is denied. Special monthly compensation on account of the need for regular aid and attendance of another person is denied. Special monthly compensation on account of housebound status is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs